ORDER AND FINDINGS AND RECOMMENDATIONS
Petitioner is a state prisoner proceeding pro se with a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges a judgment of conviction entered against him in the Sacramento County Superior Court on a charge of second degree robbery, following a joint trial with co-defendant Kevin B. Johnson.*fn1 Petitioner has filed a motion to amend his habeas petition to add two new claims and to reassert five claims he had previously abandoned. For the reasons explained below, the motion to amend will be granted in part and denied in part. The undersigned will also recommend that petitioner's application for habeas corpus relief be denied.
1. Factual Background*fn2
Defendants Kevin B. Johnson and Wade Felix Thornton were convicted of second degree robbery ( Pen. Code, §§ 211, 212.5), and the jury also found Thornton guilty of possessing cocaine base (Health & Saf. Code, § 11350, subd. (a). The trial court found true the allegations that Johnson had two prior serious felony convictions within the meaning of the "three strikes law" and that Thornton had one such prior conviction. (Pen. Code, §§ 667, subds. (a) and (b) - (I), 1170.12.) Johnson was sentenced to state prison for 25 years to life, and Thornton received a prison term of 17 years and 4 months.
On appeal, Johnson claims the trial court erred by instructing the jury with CALJIC Nos. 2.10 and 17.41.1. Thornton joins those contentions insofar as they might accrue to his benefit (Cal. Rules of Court, rule 13), and raises two additional claims: there was insufficient evidence that Thornton was one of the perpetrators of the robbery; and the court erred by denying Thornton's motion for a new trial.
Late one evening, Easmon Durant cashed a social security check for about $700 at a convenience store on Del Paso Boulevard in Sacramento. On the way home after purchasing some food and groceries, he encountered two men, one Caucasian and the other African-American.
Acting and talking in a way that led Durant to believe the two men were undercover police officers, the Caucasian accused Durant of being a drug user. Grabbing Durant and pushing him up against a wall, the man took everything out of Durant's pockets. After removing the cash from Durant's wallet, the man said that he had to verify if Durant got the money legitimately or from drug dealing. Durant replied he had just cashed his social security check. Telling Durant there were undercover cars around the corner in the alley, the man said he had to go there to make a call and verify Durant's claim. He then escorted Durant to a parking lot, tapped on a red van, and counted the $680 he had taken from Durant's wallet. At this point, the African-American came up and said he had run a warrant check and there were no outstanding warrants on Durant.
The African-American told Durant to sit down and not move while the men went to "check out the money situation." The men then walked away separately. Durant waited a "long time" but the men did not return with his money. He had not resisted the men because, based upon their words and actions, he was afraid they would arrest him. The robbery occurred around 11:00 p.m.
At about 11:18 p.m., Officer Patrick MacBeth was on patrol on Del Paso Boulevard when he saw defendant Johnson, a Caucasian, and defendant Thornton, an African-American, running across the road within about 100 yards of the site of the robbery. MacBeth was unaware that the robbery had occurred because Durant did not report it until shortly before midnight. However, because the men were running in a direction away from a Shall station, MacBeth suspected they might have been involved in a theft at the station. Thus, he shined his spotlight on the men and told them to stop. Defendant Thornton immediately put his hands into his pockets. Fearing for his safety, MacBeth ordered Thornton to "show [MacBeth] his hands." When Thornton did so, he dropped two items onto the ground: Durant's wallet; and an orange container holding .04 grams of cocaine base. After testing the substance in the container, MacBeth arrested Thornton for possessing a controlled substance.
Officer Kevin Griffin, who had arrived to assist MacBeth, searched Johnson and found approximately $700 in his right front pants pocket. Johnson claimed he had obtained the money by cashing a social security check. The money was returned to Johnson, and he was released.
The primary issue at trial was whether Johnson and Thornton were the two men who robbed Durant.
In a photographic line-up, Durant identified Johnson as the Caucasian robber. At trial, Durant was "almost" willing to identify Johnson as the Caucasian robber, but was not positive because Johnson's physical appearance at trial was somewhat different from how the Caucasian robber looked at the time of the robbery.*fn3 Officers MacBeth and Griffin identified Johnson as the Caucasian man they detained on the night of the robbery; but Griffin said he was not certain of the identification because Johnson's appearance had changed. However, Griffin testified that the man had identified himself as Johnson and had provided Griffin with personal information, including a Department of Corrections (CDC) number assigned to Johnson.
Durant testified that Thornton might or might not have been the African-American involved in the robbery. But the description that Durant gave of the perpetrator on the night of the robbery was consistent in some particulars with Thornton's appearance when he was arrested the same night. And Officer MacBeth identified Thornton as the African-American man he arrested approximately 100 yards from the crime scene soon after the robbery.
Johnson's Defense Johnson testified that he was not involved in the robbery and, in fact, was not even the man detained by police that evening. As for the identifying information the Caucasian suspect had given to Officer Griffin, Johnson claimed someone had stolen his wallet, which contained his driver's license and other personal documents, prior to the date of the robbery. Johnson also asserted that he could not have been the suspect whom Officer MacBeth saw running without any noticeable impairment, because Johnson could not run on the date of the robbery due to a medical condition -- he walked with a limp and often used a cane. To bolster this claim, Johnson introduced evidence from medical professionals who had previously treated him.
The People introduced evidence to rebut Johnson's claim about his medical condition. The officer who arrested Johnson two days after the robbery testified that he saw Johnson exit a motorhome, walk down four steps, and then walk about 50 feet. Johnson did not limp, was not using a cane, and had no trouble walking. While the officer was present at the medical intake screening at county jail, Johnson noted his medical condition but indicated that he did not have any physical disabilities and did not use a walking aid.
A further blow to Johnson's defense occurred when co-defendant Thornton testified in his own defense and identified Johnson as the man who was with Thornton when they were stopped by Officer MacBeth. When asked if he had an explanation why Thornton so testified, Johnson replied: "I do not."
Thornton's Defense Thornton denied any involvement in the robbery. Thornton testified as follows: He met Johnson for the first time that night, when Johnson and a "tall, skinny" African-American man came up to Thornton as he was sitting at a bus shelter in front of the Shell station on Del Paso Boulevard. Johnson offered to pay Thornton to get some drugs, and they left the bus shelter together to do so. They ran across the boulevard because it was a "pretty busy street." Johnson did not have a cane or a limp, and had no problem running. Thornton disputed Officer MacBeth's testimony that Thornton pulled Durant's wallet from his pocket and dropped it on the ground. According to Thornton, when the officer pulled up, Johnson tried to hand Thornton the wallet and, in Thornton's words: "I was like, [w]hat is this? What are you doing?" The wallet then dropped to the ground. Thornton admitted possessing the orange container with cocaine base.
2. Court Proceedings Regarding Kevin Johnson
After the California Court of Appeal rejected his claims raised on appeal, petitioner's co-defendant, Kevin B. Johnson (Johnson), filed a petition for review in the California Supreme Court. (August 5, 2004 Answer filed in Case No. CIV S-04-0892 MCE DAD P (Johnson Habeas), Ex. D.) That petition was summarily denied by order dated February 13, 2002. (Id., Ex. E.)
On May 13, 2003, Johnson filed a habeas petition in the Sacramento County Superior Court, claiming that he was innocent of the Durant robbery. (May 24, 2006 Amended Answer filed in Johnson Habeas, at 2.)*fn4 In support of his claim of innocence, Johnson filed a letter sent to his parents by Bobby Green, an inmate in an Arkansas prison. (See court document No. 4 (entitled "Exhibit 22") filed in Johnson habeas). In the letter, Green stated in cursory fashion that he had committed the Durant robbery with an African-American man named "Larry," and that he would provide more detailed information in this regard and sign an affidavit, if asked. (Id.) The state court denied relief on petitioner's claim of innocence and rejected Green's letter, in part on the basis that it was not in the form of an affidavit signed under penalty of perjury. (August 5, 2004 Answer filed in Johnson Habeas, Ex. F.) Johnson then filed a petition for a writ of habeas corpus in the California Court of Appeal. (May 24, 2006 Amended Answer filed in Johnson Habeas, at 3.)*fn5 That petition was summarily denied by order dated July 3, 2003. (August 5, 2004 Answer filed in Johnson Habeas, Ex. G.)
On July 28, 2003, Johnson filed a petition for a writ of habeas corpus in the California Supreme Court claiming, among other things, that he was factually innocent of the robbery of Durant. (Id., Ex. H.) That petition was summarily denied by order dated April 21, 2004. (Id., Ex. I.) After the California Supreme Court denied Johnson's habeas petition, he wrote to Green asking for a declaration detailing the facts of the robbery. (April 19, 2006, Mem. of P. & A. in Supp. of Am. Pet. for Writ of Habeas Corpus filed in Johnson Habeas, at 12.) In response, in May 2004, Johnson received an affidavit signed by Green under penalty of perjury, allegedly containing additional information regarding the particulars of the Durant robbery. (Id.) See August 9, 2008 Am. Pet. filed in the instant case, Ex. D (Green declaration).
On May 5, 2004, Johnson filed an original petition for a writ of habeas corpus in this court. During its review of Johnson's habeas petition, this court became aware of the declaration sent to Johnson by inmate Green. As a result of questions raised by Green's declaration, this court appointed counsel for both Johnson and petitioner Thornton in connection with their respective habeas petitions.
Johnson, through his appointed habeas counsel, filed an amended petition for a writ of habeas corpus in this court on April 19, 2006. Therein, he raised a freestanding claim of actual innocence, based on the declaration signed under penalty of perjury by inmate Bobby Green, described above. Johnson also claimed that the Antiterrorism and Effective Death Penalty Act of 1996 violates the constitutional principle of separation of powers.
3. Court Proceedings Regarding Petitioner Thornton
After the California Court of Appeal rejected Thornton's claims raised on appeal, petitioner filed a petition for review, which was summarily denied by order dated February 13, 2002. (August 9, 2008 Am. Pet., Ex. C.)*fn6 On March 29, 2002, petitioner filed a petition for writ of habeas corpus in the California Supreme Court. (Id., Ex. B.) That petition was summarily denied by order dated November 13, 2002. (April 11, 2003 Pet., Ex. E.)
On April 11, 2003, petitioner filed a petition for a writ of habeas corpus in this court. Therein, petitioner alleged that: (1) he was denied access to the courts when his appellate attorney abandoned him after his appeal was decided by the California Court of Appeal; (2) the evidence introduced at his trial was insufficient to support his conviction for robbery; (3) his right to due process was violated when the trial court denied his motion for new trial without holding an evidentiary hearing; (4) his right to due process and a jury trial were violated because the jury was not allowed to hear testimony from his co-defendant Johnson that petitioner was not involved in the robbery; and (5) his right to due process was violated by the giving of CALJIC No. 17.41.1. After habeas counsel was appointed for him, petitioner filed a motion requesting that this action be stayed so that he could exhaust a claim of actual innocence in state court. That motion was granted by order dated February 6, 2008.
Subsequently, petitioner filed a petition for writ of habeas corpus in the California Supreme Court. (August 9, 2008 Am. Pet., Ex. J.) Therein, he claimed that newly discovered evidence, in the form of the affidavit signed by inmate Bobby Green, proved that he was factually innocent of the robbery and that his imprisonment violated his Fourteenth Amendment right to due process and his Eighth Amendment right to be free from cruel and unusual punishment. (Id.) That petition was summarily denied by order dated June 25, 2008. (Id., Ex. K.) On August 9, 2008, petitioner filed a request to lift the stay of these proceedings. He also filed an amended petition in which he raised only his freestanding claim of actual innocence. By order dated August 13, 2008, petitioner's request to lift the stay was granted and this action proceeded upon the August 9, 2008 amended petition.*fn7
By order dated February 10, 2009, this court granted the joint request of petitioner and Johnson for an evidentiary hearing on their claims of actual innocence. Prior to the date set for the hearing, respondent submitted an exhibit which appeared to provide proof that the affidavit signed by Bobby Green, in which he admitted to the robbery of Durant, was the result of a conspiracy between Johnson and Green to defraud the court. Shortly thereafter, counsel for petitioner and counsel for Johnson contacted the court and stated their intention to request that the evidentiary hearing be vacated. Based on a subsequent stipulation of the parties, the evidentiary hearing was vacated. However, a status conference was held on the date originally scheduled for the evidentiary hearing. At that status conference, counsel for petitioner and counsel for Johnson both conceded that the claims of actual innocence based on Bobby Green's affidavit were the result of a fraud on the court perpetrated by Johnson and Bobby Green.*fn8
On May 4, 2009, the habeas petition filed by Johnson was closed pursuant to his request for a voluntary dismissal. By order dated May 11, 2009, upon request by petitioner and his counsel, this court relieved counsel for petitioner Thornton and granted petitioner thirty days in which to file a motion to amend his habeas petition. On June 5, 2009, petitioner filed an amended petition. Therein, he claims that: (1) he was denied access to the courts when his appellate counsel declined to proceed further with his case once his direct appeal was rejected by the California Court of Appeal; (2) insufficient evidence supported his conviction on the robbery count; (3) his right to due process was violated when the trial court denied his motion for new trial without holding an evidentiary hearing; (4) his right to due process and a jury trial were violated because the jury was not allowed to hear testimony from petitioner's co-defendant that petitioner was not involved in the robbery; (5) his right to due process was violated by the giving of CALJIC No. 17.41.1; (6) his sentence is improper because it is based on facts not adjudicated by a jury; and (7) his sentence should be reduced by this court. Claims (1) through (5) above are identical to the claims contained in the original petition filed by petitioner in this matter, and which he subsequently dropped in order to proceed only with his claim of actual innocence. The two sentencing claims are new.
On June 18, 2009, respondent filed a response to petitioner's amended petition. Therein, respondent construes petitioner's filing as a request to amend his petition to add the new claims contained in the amended petition and to withdraw his previously filed freestanding claim of actual innocence. This court will construe petitioner's amended petition in the same manner.
Respondent argues that petitioner's request to amend his habeas petition should be denied because his delay in presenting his new claims is attributable to his attempt to perpetrate a fraud on the court. Respondent also argues that the claims petitioner seeks to add are untimely and do not relate back to the originally filed petition. The court will address both of these contentions below.
A. Motion to Amend/Discretionary Standards
An application for a writ of habeas corpus "may be amended or supplemented as provided in the rules of civil procedure applicable to civil actions." 28 U.S.C. § 2242. See also Rule 11, Fed. R. Governing § 2254 Cases (the Federal Rules of Civil Procedure may be applied in habeas corpus proceedings to the extent that the rules of civil procedure are not inconsistent with any statutory provision or with the rules governing habeas cases); Fed. R. Civ. P. 81(a)(4) (as amended in 2009) (providing that the Federal Rules of Civil Procedure are applicable to proceedings for habeas corpus to the extent that the practice in such proceedings is not set forth in a federal statute, the Rules Governing Section 2254 Cases, or the Rules Governing Section 2255 Proceedings, and "has previously conformed to the practice in civil actions"). Under Federal Rule of Civil Procedure 15(a), a habeas petitioner may amend his pleadings once as a matter of course before a responsive pleading is served and may seek leave of court to amend his pleading at any time during the proceeding. Mayle v. Felix, 545 U.S. 644, 654 (2005).
Pursuant to Rule 15, "the court should freely give leave when justice so requires." In Nunes v. Ashcroft, 348 F.3d 815, 818 (9th Cir. 2004), the Ninth Circuit explained:
In assessing the propriety of a motion for leave to amend, we consider five factors: (1) bad faith; (2) undue delay; (3) prejudice to the opposing party; (4) futility of amendment; and (5) whether the plaintiff has previously amended his complaint.
See also Foman v. Davis, 371 U.S. 178, 182 (1962) ("In the absence of any apparent or declared reason -- such as undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, futility of amendment, etc. -- the leave sought should, as the rules require, be 'freely given.'"); Bonin v. Calderon, 59 F.3d 815, 844-45 (9th Cir. 1995) (applying the same factors in a habeas case). Prejudice to the opposing party is the most important factor. Jackson v. Bank of Haw., 902 F.2d 1385, 1387 (9th Cir. 1990). "Only where prejudice is shown or the movant acts in bad faith are courts protecting the judicial system or other litigants when they deny leave to amend a pleading." Howey v. United States, 481 F.2d 1187, 1191 (9th Cir. 1973). See also United States v. Webb, 655 F.2d 977, 980 (9th Cir. 1981). Delay alone, no matter how lengthy, is an insufficient ground for denial of leave to amend. Howey, 481 F.2d at 1191. A motion to amend a pleading is addressed to the sound discretion of the court and must be decided upon the facts and circumstances of each particular case. Sackett v. Beaman, 399 F.2d 884, 889 (9th Cir. 1968).
As described above, petitioner chose to abandon the claims asserted in his originally filed petition in order to proceed solely with a claim of actual innocence based on the affidavit of Bobby Green. This court appointed counsel for petitioner and granted his requests to amend his petition and for an evidentiary hearing. This resulted in an enormous expenditure of time and resources by this court, by appointed counsel and by the respondent. Now that the fraud has been discovered, petitioner is asking the court to allow him to amend his petition again to drop his claim of actual innocence that appears to have been predicated upon a false affidavit, revive his abandoned claims, and add two new claims. In light of the foregoing facts, it may appear that petitioner should not be allowed to proceed further with his habeas petition. However, the circumstances surrounding the making of the affidavit signed by Bobby Green were not explained to this court, and there is no direct evidence before the court linking petitioner to the fraud. In a reply brief filed by petitioner on July 6, 2009, he states that he did not attempt to defraud the court and was "roped into Kevin Johnson's fraud just as deeply as anyone else in this matter . . . ." (Reply Brief filed July 6, 2009 at 2.) Because there is no ...