FINDINGS AND RECOMMENDATIONS
Petitioner is a state prisoner proceeding through counsel with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner's motion to amend his habeas petition came on regularly for hearing on November 18, 2011. Counsel for petitioner did not appear at the hearing.*fn1 Deputy Attorney General Jeffrey Grant appeared for respondent. At that time petitioner's motion to amend was submitted for decision without argument. Upon review of the motion and the documents in support and opposition thereto, and for the following reasons, the court recommends that petitioner's motion to amend be denied. /////
On July 31, 2009, petitioner, proceeding without counsel at that time, filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 in this court. (Doc. No. 1.) That petition raised one jury instruction claim: that the giving of CALJIC No. 220 at petitioner's trial violated his right to due process because that instruction erroneously instructed the jury with respect to the burden of proof and the presumption of innocence. (Id.) Respondent filed an answer on September 1, 2010. (Doc. No. 24.) On January 25, 2011, this court issued findings and recommendations recommending that the habeas petition be denied. (Doc. No. 28.) Those findings and recommendations are still pending before the assigned District Judge.
On February 15, 2011, counsel filed objections to the January 25, 2011
findings and recommendations on behalf of petitioner.*fn2
(Doc. No. 29.) The objections did not address the substance
of those findings and recommendations but instead explained that
petitioner wished to pursue additional habeas claims. Along with the
objections, petitioner filed an "amended petition for writ of habeas
corpus." (Doc. No. 30.) The amended petition raises five claims of
ineffective assistance of trial counsel, one claim of ineffective
assistance of appellate counsel, one claim of racial discrimination in
the "jury selection process" in the trial proceedings before the Butte
County Superior Court, one claim of "unreasonable search and seizure,"
and one claim of "prosecutorial and police misconduct." (Id.)
By order dated March 1, 2011, the amended petition was stricken because it did not comply with the Federal Rules of Civil Procedure. (Doc. No. 31.) Petitioner was advised that if he wished to file a motion to amend his petition for writ of habeas corpus, he should do so within thirty days. Petitioner was further advised that any such motion should address whether the claims contained in the proposed amended petition were properly exhausted and timely filed. On September 13, 2011, petitioner filed the motion to amend which is currently before the court.
(Doc. No. 45.) Respondent filed an opposition to the motion to amend on October 4, 2011. (Doc. No. 47.)
On February 13, 2007, petitioner was convicted after a jury trial in the Butte County Superior Court of petty theft from a Wal-Mart store, in violation of California Penal Code § 484. (Doc. No. 24-1, at 2.) In his pending motion to amend, petitioner argues that he was arrested at Wal-Mart for retaliatory reasons and that he "suffered multiple instances of violation of his constitutional rights and was denied due process at all stages of the subject prosecution." (Doc. No. 45 at 2.) Petitioner informs this court that his motion "is based upon Petitioner's factual innocence of the crime charged and a conviction arising primarily from the incompetence and ineffectiveness of counsel and prosecutorial misconduct all of which deprived petitioner of due process and a fair trial." (Id. at 1.) Petitioner further states that he was "the victim of prosecutorial and police misconduct and unreasonable search and seizure." (Id.) He claims that "critical exculpatory evidence was removed and denied him when the officer making the citizen's arrest for the Wal-Mart employee was permitted to maintain possession of the subject ink cartridges the store employee claimed he was shoplifting and he claimed were empty ones he brought into the store." (Id.) The motion to amend incorporates by reference the previously stricken amended habeas petition which, as noted, raises claims of ineffective assistance of trial and appellate counsel, racial discrimination in the jury selection process in the Butte County Superior Court, unreasonable search and seizure and prosecutorial and police misconduct.
Petitioner argues that he exhausted his state remedies "in regard to all the claims raised in the proposed amended petition in that an appeal was filed on his behalf and denied." (Id.) Despite this assertion, petitioner also acknowledges, however, that his state court appeal did not raise the issues he now seeks to add to his federal habeas petition, but he contends that this was because his previous counsel "failed to see or address them." (Id. at 3-4.) Petitioner states that he asked his trial counsel to challenge the jury selection process on the grounds of "racial discrimination" but that his trial counsel failed to do so. (Id. at 3.) According to petitioner, his counsel also "ignored" petitioner's input with regard to possible appellate issues, and "did not act upon his suggestions/requests." (Id.) Petitioner also argues that, because his claims of ineffective assistance of counsel were not raised on appeal, they are waived and "thus, there remains no other remedy to redress those wrongs." (Id. at 4.) Petitioner states in conclusory fashion and without elaboration, that the factual predicate for his proposed new claims "could not have been discovered previously through the exercise of due diligence," and that the facts underlying his claims "when proven and viewed in the light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence, but for the constitutional errors, no reasonable fact finder would have found [petitioner] guilty of shoplifting those ink cartridges." (Id.)
Petitioner explains that he was unaware of his new claims because he didn't have counsel, but that once he obtained counsel "in mid 2010" those new claims were discovered and submitted to this court within the one-year statute of limitations period. (Id.) Petitioner also argues that the statute of limitations was tolled during the time he was pursuing habeas petitions in state court. (Id.) In the end, petitioner changes course, stating that his "factual innocence remains the most important aspect of this motion." (Id.)
In the opposition to the motion to amend, respondent contends that petitioner's motion "is futile because the claims he seeks to add are untimely, do not relate back to the original habeas petition, and are unexhausted." (Doc. No. 47 at 5.) Respondent also argues that petitioner has failed to demonstrate that he falls within any "actual innocence" exception to the AEDPA statute of limitations. (Id. at 9-10.)
A. Applicable Legal Standards
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); see also In re Morris, 363 F.3d 891, 893 (9th Cir. 2004) (Rule 15(a) applies to habeas actions with the same force that it applies to other civil cases). Although leave of court should be given freely, a court may deny a motion to amend if the motion is made in bad faith, there would be prejudice to the opposing party, the amendment would be futile or would delay the action, or if the party acted in a dilatory fashion in seeking to amend. Foman v. Davis, 371 U.S. 178, 182 (1962); Nunes v. Ashcroft, 375 F.3d 805, 808 (9th Cir. 2004) (applying these factors with respect to a motion to amend in a ...