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 his 2005 conviction in the Sacramento County Superior Court on charges of second degree murder and attempted murder with enhancements for use of a firearm in connection with those offenses. Petitioner is serving a sentence of seventy years to life in prison pursuant to his conviction. On February 17, 2009, respondent filed his answer. Before the court is petitioner's motion for leave to file an amended habeas petition and request for leave to file a late reply to respondent's answer. (Doc. No. 19.) Respondent has filed an opposition to the motion.
On July 2, 2008, petitioner filed his federal habeas petition with this court. Therein, he presented the following five grounds for relief: (1) juror misconduct at his trial in state court, including: (a) Juror #7's failure to disclose that he was the victim of child molestation; (b) Juror #7's presenting of extra-judicial information during jury deliberation; (c) Juror #4's failure to disclose that she worked with the victim's wife; (2) ineffective assistance of appellate counsel for failing to raise the jury misconduct issues on appeal; (3) erroneous jury instruction on the use of two predicate felonies for application of the felony murder rule; (4) conflicting jury instructions on the attempted murder charge allowing the jury to convict petitioner of that charge based on implied malice; and (5) erroneous jury instructions on imminent peril in connection with petitioner's defense of imperfect self-defense.
On December 16, 2008, this court ordered respondent to file its response to the petition within sixty days and for petitioner to file his reply, if any, within thirty days after service of the answer.*fn1 On February 17, 2009, respondent filed an answer to the petition. Petitioner did not file a timely traverse. Rather, on June 5, 2009, three and a half months after respondent's answer was filed, petitioner filed the pending motion seeking leave to amend his petition along with his late reply to respondent's answer.
THE ARGUMENTS OF THE PARTIES
Petitioner contends that he relied on a jailhouse lawyer to draft his federal habeas petition, and was subsequently advised that it was poorly drafted. (Mot. for Leave to Amend at 3.) He claims that although he was diligent, he was unable to locate another jailhouse lawyer to assist him in preparing an amended petition until recently. (Id.) Petitioner seeks leave to file his amended petition "not necessarily to effectuate a substantive change, but rather a stylistic one to effectuate clarity." (Id.) As for his belatedly-filed traverse, petitioner asserts, "the respondent's ANSWER to the petition for writ of habeas corpus raisies [sic] what on their face appears to be legally sufficient defenses and declarant's REPLY will explain why the defenses are not meritorious." (Id.)
In opposing petitioner's motion respondent argues that the proposed amended petition "contains an expanded version of facts in support of Petitioner's claim of juror misconduct and additional supporting documents from the state court record." (Opp'n at 2.) Respondent also argues that petitioner's late reply in support of habeas relief "relies largely on legal arguments not previously asserted: that the California Court of Appeal's denial of the juror misconduct claim was based on an unreasonable determination of the facts, and the trial court's findings were based on less than a full and fair hearing." (Id.) Finally, respondent contend that petitioner's late-filed reply is "an attempt to reframe arguments that could and should have been raised for the first time in the Petition" and that to the extent new legal arguments are made by petitioner in the reply, those arguments should not be considered by the court. (Id.) Alternatively, respondent asks that if the court allows petitioner to file his late reply, that the court also grant respondent forty-five days to file a surreply. (Id. at 3.)
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 habeas corpus proceedings 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 to leave to amend in a federal habeas action). Of these factors, prejudice to the opposing party is the most important. 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).
Most of petitioner's proposed amendments to his petition add supporting factual allegations with respect to his first (juror misconduct) and second (ineffective assistance of appellate counsel) claims for habeas relief. Petitioner does not propose to add any new claims in his amended petition, but has merely attempted to better explain and support his existing claims with additional factual allegations. Specifically, in the proposed amended petition he explains in more detail that at his trial in state court Juror #7, the foreperson, did not reveal during voir dire that he was a victim of child molestation; that Jurors #5, #7, and #8 performed improper experiments during the jury view of the crime scene; that the trial judge conducted a hearing on petitioner's motion for a new trial after Juror #4 submitted a declaration attesting to various events during the trial; that Juror #4 testified that she and two other jurors were approached during trial by a witness in the case who assured the jurors that his trial testimony was truthful; and that the same juror testified that she knew a family member of the victim who was ...