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Baumer v. Tilton

September 28, 2007


The opinion of the court was delivered by: Hon. Jeffrey T. Miller United States District Judge


(Docket Nos. 6 and 18)

Petitioner, proceeding pro se, filed a § 2254 habeas petition on July 3, 2006. He challenges his conviction for possession and manufacture of a deadly weapon by a state inmate and battery upon a state correctional officer. Petitioner now moves (1) to stay and abey the petition so he can exhaust two additional claims, and (2) to amend the petition by adding one of these claims and making other changes to a pre-existing claim. Respondent opposes the motion for stay and abeyance but filed no opposition to the motion to amend.

On August 1, 2007, Magistrate Judge Cathy Ann Bencivengo issued a Report and Recommendation ("R&R") recommending that the court deny the motion to amend as futile and find the motion to stay and abey moot or, in the alternative, deny the motion to stay and abey.*fn1 Petitioner filed timely objections to which Respondent did not reply. For the reasons set forth below, the court hereby adopts in part the conclusions of the R&R and (1) denies Petitioner's motion to amend to add his claim for ineffective assistance of counsel; (2) grants Petitioner's motion to amend insofar as the motion seeks changes related to his pre-existing claim of denial of the right to self-representation; and (3) denies Petitioner's motion for stay and abeyance.


Petitioner moves to stay and abey his petition to exhaust two additional claims. Each of the new claims relates to his allegation that his prior criminal convictions were unconstitutional. Specifically, he alleges that his sentence violated his Fourteenth Amendment due process rights because the sentence was enhanced by his prior convictions. He also alleges that he received ineffective assistance of trial counsel, in violation of the Sixth and Fourteenth Amendments, because his attorney failed to challenge the constitutionality of these convictions and, as a result, they were impermissibly used to enhance his sentence and to impeach his testimony.

Petitioner exhausted these claims in state court. He now seeks to add only the ineffective-assistance-of-counsel claim to his petition.*fn3 He also seeks to make several other changes to his pre-existing self-representation claim. In this regard, he wishes first to modify his explanation of why his requests to represent himself were timely. (Second Mtn. to Amend at 4-5 (seeking to change ¶¶ 171, 186, and 244 of original petition).) He believes that his original explanation reflected an incorrect understanding of the law, and he seeks to change his explanation accordingly. Second, he seeks to correct an inaccuracy regarding the date for which the trial court set his case for trial. (Second Mtn. to Amend at 5 (seeking to change ¶ 64 of original petition).) Finally, he wishes to add the allegation that the California Court of Appeals "made an unreasonable determination of the facts by failing to considering the trial court's denial of [Petitioner's] August 23, 2000 request to represent [himself] separately from the court's earlier denials of [Petitioner's] August 21 & 22, 2000, motions to proceed pro se." (Second Mtn. to Amend at 5.)


The court reviews a magistrate judge's R&R according to the standards set forth in Federal Rules of Civil Procedure ("FRCP") Rule 72(b) and 28 U.S.C. § 636. The court "shall make a de novo determination of those portions of the report . . . to which objection is made. A judge of the court may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1); United States v. Raddatz, 447 U.S. 667, 673-74 (1980).

Petitioner objects to the R&R on a number of grounds. Regarding the motion to amend, he disputes the finding that he must receive leave to amend, arguing that he properly exercised his FRCP Rule 15(a) right to amend as a matter of course. He also disputes the conclusion that the statute of limitations established by the Antiterrorism and Effective Death Penalty Act ("AEDPA"), 22 U.S.C. § 2244, expired before he sought to amend his petition. Furthermore, he claims that the R&R incorrectly determined that California Penal Code § 1004 acts as an "adequate and independent" state-law basis for denying relief, such that amendment would be futile. Finally, Petitioner argues that the R&R should have addressed his request to amend his pre-existing self-representation claim.

Regarding the motion for stay and abeyance, he claims that the R&R erred in two ways. He disputes its conclusion that he did not show good cause for failing to exhaust his proposed ineffective-assistance-of-counsel claim earlier.*fn4 He also claims that the R&R erroneously stated that he did not show this claim has merit.

A. Motion to Amend Denied in Part and Granted in Part

The court agrees with the R&R's recommendation to deny Petitioner's motion for leave to amend to add the ineffective-assistance-of-counsel claim. However, the court finds leave to amend appropriate in regard to the proposed changes to Petitioner's pre-existing ...

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