The opinion of the court was delivered by: Hon. Napoleon A. Jones, Jr. United States District Judge
ORDER: (1) ADOPTING R&R; and (2) DENYING PETITIONER'S MOTION FOR LEAVE TO AMEND
Presently before this Court is Magistrate Judge Jan M. Adler's Report and Recommendation ("R&R") recommending that the Court deny Petitioner Thomas Haithcock's ("Petitioner" or "Haithcock") motion for leave to amend petition. [Doc. No. 51]. This Court has considered Haithcock's Petition, Haithcock's motion for leave to amend, Respondent M Veal's ("Respondent" or "Veal") Response to the motion, and all supporting documentation submitted by the parties. Having considered these documents, this Court ADOPTS the R&R and DENIES Petitioner's motion for leave to amend Petition because it would be futile.
On May 4, 2004, Petitioner was convicted in San Diego County Superior Court of selling and possessing cocaine. Petitioner was sentenced to ten years in state prison. On January 19, 2005, Petitioner filed an appeal in the California Court of Appeal raising two issues: (1) that the trial court violated his Sixth Amendment right to effective assistance of counsel when it denied his pretrial motions to substitute defense counsel, and (2) that the trial court denied him due process when it improperly sentenced him based on aggravating factors that were not found by a jury or admitted by Petitioner. On August 10, 2005, the California Court of Appeal affirmed Petitioner's conviction. Petitioner thereafter filed a petition for review by the California Supreme Court. On October 19, 2005, the California Supreme Court summarily denied review.
On January 17, 2006, Haithcock filed a petition for writ of habeas corpus in this Court [Doc. No. 1], raising the same two claims as in his direct appeals in state court. (See Petition at 7-9). On February 24, 2006, Petitioner filed a motion for a stay and abeyance on the grounds he discovered new issues related to his case that he wanted to exhaust in state court. [Doc. No. 6].
On February 28, 2006, Petitioner began exhausting two new claims by filing state habeas petitions in the state Superior, Appellate, and Supreme Courts. The writ filed in the San Diego Superior Court raised the same two claims alleged in Haithcock's Federal Petition, as well as two additional claims: (1) that his Sixth Amendment right to effective assistance of counsel was violated because his trial and appellate counsel were ineffective, and (2) admission of the arresting officer's testimony at trial violated the confrontation clause (Haithcock alleged it was hearsay). Haithcock's petition was ultimately denied by the California Supreme Court on March 21, 2007.
On August 30, 2006, the magistrate judge issued an R&R recommending that Petitioner's motion for a stay and abeyance be denied. [Doc. No. 33]. The Court issued an order adopting the R&R on November 7, 2006. [Doc. No. 38].
On February 10, 2009, Haithcock moved to amend his federal Petition to add the two newly exhausted claims involving ineffective assistance of counsel and confrontation clause issues arising during trial. [Doc. No. 51].
Motions for leave to amend a petition for writ of habeas corpus are governed by the same standards as motions to amend a complaint in other civil actions. A party may amend a pleading once as a matter of course at any time before a responsive pleading is served. Fed. R. Civ. P. 15(a). Once a responsive pleading has been served, however, a party may amend the pleading only by leave of court or by written consent of the adverse party. Id.
Leave is freely given when justice so requires. Morris v. U.S. Dist. Court, 363 F.3d 891, 894 (9th Cir. 2004). However, it is appropriate to deny leave to amend where amendment would be futile. Foman v. Davis, 371 U.S. 178, 182 (1962). A district court may deny leave to amend based on "the presence of any of four factors: bad faith, undue delay, prejudice to the opposing party, and/or futility." Griggs v. Pace Am. Group, Inc., 170 F.3d 877, 880 (9th Cir. 1999). "Futility of amendment can, by itself, justify the denial of a motion for leave to amend." United States v. Smithkline Beecham Clinical Labs., 245 F.3d 1048, 1052 (9th Cir. 2001); see also Bonin v. Calderon, 59 F.3d 815, 845-46 (9th Cir. 1995) (futility of amendment justifies denial of a motion for leave to amend).
I. Statute of Limitations
Haithcock's Petition is governed by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), which places a one-year statute of limitations on the filing of petitions for writ of habeas corpus following final judgment from a state conviction. 28 U.S.C. § 2244(d). Here, the statute of limitations period began to run from the date Haithcock's judgment of conviction became final on January 17, 2006 - 90 days after the California Supreme Court summarily denied his petition for review. See Bowen v. Roe, 188 F.3d 1157, 1159-60 (9th Cir. 1999). Absent tolling, the one-year statute of limitations would have expired January 17, 2007. However, Haithcock is entitled to statutory tolling for the period of time he diligently sought post-conviction relief in state court. 28 U.S.C. § 2244(d)(2); Harris v. Carter, 515 F.3d 1051 (2008)("AEDPA tolls the one-year limitations period while a ...