FINDINGS AND RECOMMENDATIONS
Petitioner is a state prisoner proceeding pro se with an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. On May 22, 2006, respondent filed an answer and on May 20, 2006, petitioner filed his traverse. However, prior to a decision being rendered on the fully briefed petition, on September 5, 2008, petitioner sought "reinstatement" with respect to two newly exhausted claims.*fn1 (Doc. No. 35.) On May 4, 2009, the court issued an order construing petitioner's filing as a motion for leave to file an amended petition and directed respondent to respond to the motion. (Doc. No. 39.) On June 30, 2009, respondent filed his opposition to the motion to amend. Below, the court addresses the pending motion.
I. Petitioner's Original and Proposed New Claims
Petitioner filed his federal habeas petition on June 20, 2005, setting forth the following five grounds for relief:
Claim 1: Counsel rendered ineffective assistance when he does not seek suppression of evidence seized from a suspect who is apprehended by a police dog after he flees a home which police and dogs enter without a warrant, consent, exigent circumstances or probable cause Claim 2: Counsel renders ineffective assistance when he fails to prevent destruction of evidence that would demolish the credibility of the state's key witness Claim 3: Where a defendant is accused of trying to kill his wife after finding her in bed with another man, a court commits reversible error when it gives the jury no instructions on heat of passion or manslaughter Claim 4: Where a court forces a defendant to testify before other defense witnesses, it commits reversible error Claim 5: There is insufficient evidence of attempted murder where an assailant with the means and the opportunity to kill does not actually try to kill his victim (Petition (Doc. No. 1) at 6.)*fn2
In his motion now pending before the court, petitioner seeks to amend his habeas petition to add the following two claims:
Proposed Claim 1: Trial court violated clearly established federal law, violated petitioner's constitutional guarantee to due process of the law by the court knowingly disregarding the reasonable application of legislative mandate governing the special allegation attached to petitioners [sic] commitment offense of attempted murder Proposed Claim 2: Petitioner contends the imposition of his upper term sentence on counts 2, 3 and 4 violated his right to jury trial, because the agravating [sic] factors used to justify the sentence were not found true by a jury beyond a reasonable doubt. (Doc. No. 35 at 8 and 14.)
The court has construed petitioner's first proposed new claim as alleging that the life sentence imposed in his case is unconstitutional because the element of premeditation was not properly alleged in the charging documents as required under California law. (Doc. No. 39 at 3.) In his second proposed new claim plaintiff contends that his constitutional rights, as recognized by the U.S. Supreme Court in Apprendi v. New Jersey, 530 U.S. 466 (2000), Blake v. Washington, 542 U.S. 296 (2004), and Cunningham v. California, 549 U.S. 270 (2007), were violated when he was sentenced to the upper term on several of the counts of conviction. (Id.)
II. Respondent's Opposition to the Motion
Respondent argues that petitioner should not be granted leave to amend because neither of his proposed new claims relate back to his federal habeas petition filed in this court on June 20, 2005. (Opp'n at 2.) Respondent notes that on appeal from his conviction the California Supreme Court denied petitioner's petition for review on May 18, 2005, and the one-year statute of limitations for the filing of a federal habeas petition began to run on August 17, 2006. (Opp'n at 3.) Although petitioner filed his timely habeas petition with this court on June 20, 2005, it did not contain the two proposed sentencing claims. Moreover, petitioner did not file his first state habeas petition raising those two proposed new sentencing claims until January of 2007, more than four months after the statute of limitations for filing a federal petition had expired. (Id. at 3-4.) Thus, respondent argues, the proposed new claims are time-barred unless they relate back to the timely claims set forth in the 2005 petition filed with this court.
In this regard, respondent argues that petitioner has not carried his burden of demonstrating that the proposed new claims share a common core of operative facts with those set forth in his timely filed petition. (Id.) Respondent notes that the five grounds for relief set forth in the original petition are all based on alleged constitutional violations occurring during the guilt phase of petitioner's state court trial. (Id. at 4.) On the other hand, the two proposed new grounds for habeas relief allege constitutional violations solely in connection with petitioner's sentencing. (Id.) Respondent contends that the facts challenging petitioner's sentence are unrelated to petitioner's original guilty-phase claims of ineffective assistance of counsel. (Id.) In addition, respondent contends, the proposed amendment would be futile because petitioner's Apprendi claim lacks merit. (Id. at 5 n.2.)
A. Statute of Limitations
Because this action was filed after April 26, 1996, the provisions of the AEDPA are applicable. See Lindh v.Murphy, 521 U.S. 320, 336 (1997); Clark v. Murphy, 331 F.3d 1062, 1067 (9th Cir. 2003). The AEDPA imposes a one-year statute of limitations on the filing of federal habeas petitions. Title 28 U.S.C. § 2244 provides as follows:
(d) (1) A 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court. The ...