cert_response - No 08-327 ~in ~q~e uareme aurt at the...

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No. 08-327 ~in ~q~e uareme aurt at the lnitel tateg STATE OF ARIZONA; TERRY GODDARD, Arizona Attorney General; PAUL CARTER, Assistant Attorney General; DORA B. SCHRIRO, Director Of The Arizona Department Of Corrections, Petitioners, VS. UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA; ROBERT V. TUZON, Respondents. On Petition For Writ Of Certiorari To The United States Court Of Appeals For The Ninth Circuit RESPONSE IN OPPOSITION TO PETITION FOR WRIT OF CERTIORARI TIBOR NAGY, JR. OGLETREE, DEAKINS, NASH, SMOAK ~ STEWART, B.C. 6760 North Oracle Road, Suite 200 Tucson, Arizona 85704 (520) 544-0300 Counsel for Respondent United States District Court for the District of Arizona COCKLE LAW BRIEF PRINTING CO. (800) 225-6964 OR CALL COLLECT ,402 ) 342-2831
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QUESTION PRESENTED FOR REVIEW Does the ruling of the Ninth Circuit Court of Appea]s warrant review by this Court?
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ii TABLE OF CONTENTS Page QUESTION PRESENTED FOR REVIEW .......... i RULES AND STATUTES INVOLVED ................ 1 STATEMENT OF THE CASE .............................. 6 A. Factual Background .................................. 6 B. Proceedings~ Below ..................................... 10 REASONS FOR DENYING PETITION .............. 12 I. PETITIONERS’ PETITION FOR A WRIT OF CERTIORARI SHOULD BE DENIED BECAUSE PETITIONERS HAVE RAISED NO ISSUE APPROPRIATE FOR A GRANT OF CERTIORARI .......................... 13 A. There I.s Conformity Among the Cir- cuits - Not a Circuit Split - In Approving the Use of Orders Similar to the Scheduling Order at Issue Here ..... 13 B. The Scheduling Order Does Not Conflict with the U.S. Constitution, Federal Statutes or Any Applicable Decision, s of this Court .......................... 13 1. Neither Petitioners’ due process rights nor separation of powers principles are implicated by the Scheduling Order ............................. 14 a. Due process ................................. 14 b. Separation of powers .................. 14 2. The Scheduling Order is not in conflict with any federal statute ...... 16
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o,o 111 TABLE OF CONTENTS - Continued Page a. Rules Enabling Act (REA) .......... 16 b. Prison Litigation Reform Act (PLRA) ........................................ 19 C. The Ninth Circuit Has Not Decided an Important Question of Federal Law that Should be Settled by This Court... 21 II. BECAUSE THE SCHEDULING ORDERS ARE ISSUED IN FEWER THAN FIVE PRO SE PRISONER CASES PER YEAR, THE QUESTION PETITIONERS WANT ADDRESSED WILL RARELY ARISE ........ 21 III. THE PETITION SHOULD BE DENIED BECAUSE THE NINTH CIRCUIT COR- RECTLY RULED THAT THE SCHED- ULING ORDER WAS NOT CLEAR ERROR ......................................................... 22 CONCLUSION ..................................................... 24
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iv TABIAE OF AUTHORITIES Page CASES Arizona, In re, 528 F.3d 652 (9th Cir.2008) ................................................ 12, 21, 22, 23 Hardwick v. Ault, 517 F.2d 295 (5th Cir.1975) .......... 13 Lewis v. Casey, 518 U.S. 343 (1996) ............... 15, 16, 23 Martinez v. Aaron, 570 F.2d 317 (10th Cir.1978) ................................................ 13, 20, 22, 23 Norton v. Dima;’.ana, 122 F.3d 286 (5th Cir.1997) .................................................................. 13 Procunier v. Martinez, 416 U.S. 396 (1974) ............... 15 STATUTES 28 U.S.C. § 1915A ................................................... 5, 10 42 U.S.C. § 1997e ................................................... 10, 19 RULES Fed. R. Civ. P. 16 ..................................... 1, 8, 17, 18, 22 Fed. R. Civ. P. 26(a)(1) ................................................ 17 Fed. R. Civ. P. 83 ................................................. 5, 8, 18
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RULES AND STATUTES INVOLVED In addition to the rule and statute appended to Petitioners’ Petition for Writ of Certiorari, the following rules and statutory provisions are relevant to the Court’s decision: Rule 16(a), (b) and (c), Fed. R. Civ. P.: (a) Purposes of a Pretrial Conference. In any action, the court may order the attorneys and any un- represented parties to appear for one or more pretrial conferences for such purposes as: (1) expediting disposition of the action;
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