Free Motion to Withdraw as Attorney - District Court of Arizona - Arizona

1 Jon M. Sands Federal Public Defender 2 Ken Murray (Ohio Bar No. 0002519) 3 Jefferson T. Dorsey (Tennessee Bar No. 015434) Assistant Federal Public Defenders 4 850 West Adams Street, Suite 201 Phoenix, Arizona 85007 5 [email protected] [email protected] 6 (602) 382-2816 (602) 889-3960 (facsimile) 7 8 Counsel for Petitioner 9 10 11 12 13 14 15 16 17 18 19 Comes now Robert L. Jaramillo and his counsel and moves this Court for leave for undersigned counsel to withdraw from representing Mr. Jaramillo. Further, Mr. vs. Dora Schriro, et al., Respondents. Robert L. Jaramillo, Petitioner, No. CV-00-936-PHX-SMM PETITIONER'S MOTION TO WITHDRAW AND SUBSTITUTE COUNSEL IN THE UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA

20 Jaramillo seeks the appointment of Daniel Kaplan, 2929 N. Central Ave., Suite 2100, 21 Phoenix, AZ 85012 (602-640-9328), a member of the appellate panel list for this 22 district, to represent him in all further proceedings in his case. Mr. Kaplan has agreed 23 to accept the appointment. The reasons for this request are set forth in the 24 accompanying Memorandum In Support. 25 26 27 28 \\\ \\\ \\\ \\\

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Respectfully submitted this 14th day of October, 2005. Jon Sands Federal Public Defender Ken Murray Jefferson T. Dorsey By s/Ken Murray Counsel for Petitioner

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1 Jon M. Sands Federal Public Defender 2 Ken Murray (Ohio Bar No. 0002519) 3 Jefferson T. Dorsey (Tennessee Bar No. 015434) Assistant Federal Public Defenders 4 850 West Adams Street, Suite 201 Phoenix, Arizona 85007 5 [email protected] [email protected] 6 (602) 382-2816 (602) 889-3960 (facsimile) 7 8 Counsel for Petitioner 9 10 11 12 13 14 15 16 17 18 19 On August 19, 2002, the Office of the Federal Public Defender was appointed to represent Jaramillo in his appeal from the denial of his Petition for Writ of Habeas vs. Dora Schriro, et al., Respondents. Robert L. Jaramillo, Petitioner, No. CV-00-936-PHX-SMM MEMORANDUM IN SUPPORT OF PETITIONER'S MOTION TO WITHDRAW AND SUBSTITUTE COUNSEL IN THE UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA

20 Corpus. [Doc. No. 19]. On August 20, 2003, the Ninth Circuit Court of Appeals 21 remanded the case for an evidentiary hearing before this Court to determine, inter 22 alia, the credibility of "the credibility of . . . [Wayne] Graham's affidavit and the 23 corroborating photographs." Jaramillo v. Stewart, 340 F.3d 877, 883 (9th Cir. 24 2003). After holding an evidentiary pursuant to the remand, this Court issued a 25 26 27 28
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Memorandum of Decision and Order denying Mr. Jaramillo's Petition for Writ of Habeas Corpus. [Doc. No. 189]. Mr. Jaramillo intends to file a Notice of Appeal

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1 pursuant to Rule 3 of the Federal Rules of Appellate Procedure ("FRAP") and to seek 2 a Certificate of Appealability pursuant to 28 U.S.C. § 2253 and FRAP Rule 22. 3 The undersigned counsel has discussed the appeal and the potential issues with 4 5 6 7 Mr. Jaramillo. As this Court is aware, during the evidentiary hearing Wayne Graham, the individual who provided the key affidavit in this case and whose credibility was a focus of a Ninth Circuit's remand, unexpectedly invoked his Fifth Amendment right

8 and refused to testify. Mr. Jaramillo has indicated his desire to pursue every possible 9 appellate issue including Graham's refusal to testify and the associated events that 10 followed during the evidentiary hearing. Mr. Jaramillo has also indicated his desire 11 to pursue any error undersigned counsel might have made in responding to Mr. 12 Graham's refusal to testify or to otherwise make an adequate record on issues during 13 the hearing. 14 15 16 17 Because of the potential that Mr. Jaramillo will pursue a claim or claims that undersigned counsel failed to adequately represent him or to make an adequate record during the evidentiary hearing, it would be appropriate for the Court to appoint

18 another lawyer to represent Mr. Jaramillo on his appeal. Undersigned counsel has 19 contacted Daniel Kaplan, 2929 N. Central Ave., Suite 2100, Phoenix, AZ 85012 20 (602-640-9328), a member of the appellate panel list for this district, and Mr. Kaplan 21 has agreed to accept an appointment to represent Mr. Jaramillo on his appeal. 22 Undersigned counsel has also informed Mr. Jaramillo that Mr. Kaplan has agreed to 23 accept the appointment and Mr. Jaramillo has indicated that it is his desire that Mr. 24 25 26 Current counsel for Mr. Jaramillo is also filing a Motion to Extension of Time 27 to File Notice of Appeal based, in part, on the need for this Court to first rule on the 28 Motion to Withdraw and the request for appointment of new counsel.
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Kaplan be appointed and represent him on appeal.1

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For the foregoing reasons, it is respectfully requested that the Court grant

2 undersigned counsel's Motion to Withdraw and appoint Daniel Kaplan as counsel to 3 represent Mr. Jaramillo in any further proceedings in this matter. 4 5 6 7 8 9 10 11 12 CERTIFICATE OF SERVICE By s/Ken Murray Counsel for Petitioner Respectfully submitted this 14th day of October, 2005. Jon Sands Federal Public Defender Ken Murray Jefferson T. Dorsey

I hereby certify that on October 14, 2005, I served the attached document by mail on the following who are not registered participants of the CM/ECF System: 13 14 Daniel Kaplan Osborn Maledon 15 2929 North Central Avenue Suite 2100 16 Phoenix, Arizona 85012-2794 17 Robert Jaramillo, #39278 18 Arizona State Prison-Eyman-SMU II P.O. Box 3400 19 Florence, Arizona 85232 20 By s/Regina Montoya Legal Secretary 21 22 23 24 25 26 27 28
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CERTIFICATE OF SERVICE

I hereby certify that on this 14th day of October, 2005, I electronically transmitted the attached document to the Clerk's Office using the CM/ECF System 3 for filing and transmittal of a Notice of Electronic Filing to the following registrants: 4 5 Robert A. Walsh Assistant Attorney General 6 7 s/Regina Montoya 8 ByLegal Secretary 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
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