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. Before the court are: (1) petitioner's March 21, 2011, and June 29, 2011 motions for leave to amend his habeas petition to add additional claims; (2) petitioner's May 2, 2011 motion to substitute the correct respondent in this action; and (3) petitioner's November 23, 2011 motion for judicial notice. The court will address these motions in turn below.
Petitioner's crime of conviction and the resulting sentence imposed were described by the California Court of Appeal for the Third Appellate District as follows:
Defendant Mario Garcia appeared on a video surveillance tape leaving the Thunder Valley Casino with Christie Wilson early in the morning of October 5, 2005. They were last seen walking towards his car. Wilson was never seen again and her body was never found. A jury convicted defendant of first degree murder (Pen. Code, § 187) of Wilson and possession of a deadly weapon (Pen. Code, § 12020, subd. (a)(1)). The court found true allegations that defendant had a prior serious felony conviction (Pen. Code, §§ 667, subds. (a) & (b)-(i); 1170.12, subds. (a)-(d)). Sentenced to 59 years to life in state prison (25 years to life for the murder, doubled, plus four years for the weapons charge and five years for the prior felony enhancement), defendant appeals.
(Resp't's Lod. Doc. No. 1 at 1-2.) Petitioner filed his federal habeas petition in this court on April 21, 2010. Therein, he raises nineteen grounds for federal habeas relief. Respondent filed an answer on September 22, 2010, and petitioner filed a traverse on December 13, 2010. The petition is now submitted for decision.
B. Motions to Amend Habeas Petition
1. March 21, 2011 Motion to Amend
On March 21, 2011, petitioner filed a motion for leave to amend his habeas petition to add several additional claims. Petitioner explains that the purpose of the motion is to "bring the Court's attention to further support Petitioner's ineffective assistance of counsel and insufficiency of the evidence for felony murder claims." (Doc. No. 66 at 2.) Petitioner argues that jury instructions on kidnapping given at his trial constituted a "constructive amendment" of the original charges against him of first degree murder and possession of a dangerous weapon. (Doc. No. 53 at 1-2.) He argues that the giving of these jury instructions deprived him of adequate notice of a new charge of "murder based on kidnapping." (Id.) Petitioner contends that he was "charged with murder in the first degree and possession of a dangerous weapon, but the jury instructions permitted conviction for murder based on kidnapping." (Id. at 3.) He alleges that the variance between the original charges and the jury instructions on kidnapping was "sufficiently material to constitute a constructive amendment, that was per se prejudicial, and warrants reversal of Petitioner's convictions." (Id.)
Petitioner also argues that because the instructions on kidnapping were given near the end of trial, his trial counsel was unable to prepare a defense to a charge of felony-murder based on kidnapping. (Id. at 4.) Petitioner notes that his trial counsel objected to the late inclusion of the instructions on kidnapping to the jury charge. (Id.) Specifically, defense counsel argued that the instructions required him to "argue this case totally different" and that this violated petitioner's right to due process. (Id.) Petitioner argues that in this way he was "given insufficient notice of the charges against him and was deprived of any defense in violation of the Fifth, Sixth, and Fourteenth Amendment of the United States Constitution." (Id. at 2.)
Petitioner further argues that his trial counsel rendered ineffective assistance in failing to prepare an adequate defense to a kidnapping charge, and that his appellate counsel rendered ineffective assistance by failing to raise on appeal this "'dead-bang winner' issue -- the fatal variance." (Id. at 4-5.) Petitioner contends that both his trial and appellate counsel failed "to understand even the basic elements of the charged offenses." (Id. at 5.) He explains that the "dispositive issue(s) this motion advances are that (1) a constructive amendment of the charges occurred when the jury was permitted to convict Petitioner upon a factual basis that effectively modified an essential element of the offense charged and (2) defense counsel was ineffective for not preparing a proper defense against kidnapping." (Id.) Petitioner informs the court that he did not present these claims earlier, either in state court or in this court, because he did not discover the claims until he obtained his trial transcripts from his appellate counsel "in October of 2010." (Id.)
In opposition, respondent counters that petitioner's motion to amend should be denied because the claims he proposes to add lack merit and are untimely and unexhausted. (Doc. No. 61 at 2.) Respondent also argues that petitioner has failed to demonstrate his entitlement to stay and abeyance of the instant petition in order to exhaust his claims in state court. Addressing the merits, respondent asserts that petitioner "had sufficient notice that he was being charged with murder as well as the prosecution's theory of felony murder with respect to that charge." (Id.)
Respondent also argues that petitioner's trial counsel did not have a duty to prepare a defense against a kidnapping charge because petitioner was not charged with kidnapping. (Id. at 8.) He asserts that defense counsel adequately prepared to defend against a charge of felony-murder predicated on a kidnapping. (Id.) Respondent argues that the defense theory presented by petitioner's counsel was applicable to both of the prosecution's theories of murder: murder based on malice aforethought and felony murder. (Id.) Respondent also notes that petitioner has failed to propose what his trial counsel should have done to structure his defense differently. (Id.) Finally, respondent argues that petitioner has failed to demonstrate prejudice with respect to his claims of ineffective assistance of counsel.
In his reply, petitioner concedes that he was provided adequate notice of the charge of felony murder predicated on a kidnapping. (Doc. No. 66 at 6, 8.) He "commends Respondent for clearly and honestly pointing out when and how his defense counsel received sufficient notice that their client was being charged with murder as well as the prosecution's theory of felony murder with respect to that charge." (Id. at 6.) In light of this concession, petitioner now narrows his arguments in the motion to amend to "whether defense counsel failed to adequately prepare a defense to the prosecution's theory of felony murder predicated on kidnapping." (Id. at 8-9.)*fn1
In this regard, petitioner argues that his trial counsel "completely and inexplicably misunderstood the law of felony murder and should have been within their grasp to have prepared a defense that included kidnapping." (Id. at 6.) Petitioner specifically faults his trial counsel for failing to understand the nature of the charges against petitioner; failing to conduct sufficient legal research; failing to conduct sufficient pre-trial investigation including the hiring expert witnesses; and failing to present a defense that corroborated petitioner's trial testimony and adequately responded to the prosecutor's theory of the case. (Id. at 4-6, 9-11.) Petitioner suggests numerous actions his trial counsel should have undertaken, such as visiting the crime scene, interviewing witnesses and employing various experts. (Id. at 10-11.) He argues that his trial counsel's failures were prejudicial because, absent those errors, "there would have been available forensic testimony that would have contradicted the prosecution's explanation of the events that transpired, and would have strongly supported the defense's version of the facts including Petitioner's testimony." (Id. at 9.) Petitioner further explains that "a forensic explanation of the source of the blood stain on the back seat could have supported Petitioner's account." (Id. at 10.)*fn2
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). 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); AmerisourceBergen Corp. v. Dialysist West, Inc., 465 F.3d 946, 951 (9th Cir. 2006); Nunes v. Ashcroft, 375 F.3d 805, 808 (9th Cir. 2004) (applying these factors in a habeas case); Bonin v. Calderon, 59 F.3d 815, 845 (9th Cir. 1995) (same). "Prejudice to the opposing party is the most important factor." Jackson v. Bank of Haw., 902 F.2d 1385, 1387 (9th Cir. 1990) (citing Zenith Radio Corp. v. Hazeltine Research, Inc., 401 U.S. 321, 330-31 (1971).
Bad faith may be shown when a party seeks to amend late in the litigation process with claims which were or should have been apparent early. Bonin, 59 F.3d at 846. Such facts might also support a finding that the party acted in a dilatory fashion when seeking to amend. Duggins v. Steak 'N Shake, Inc., 195 F.3d 828, 834 (6th Cir. 1999). 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). "[A] district court does not abuse its discretion in denying a motion to amend where the movant presents no new facts but only new theories and provides no satisfactory explanation for his failure to fully develop his contentions originally." Bonin, 59 F.3d at 845 (citing Allen v. City of Beverly Hills, 911 F.2d 367, 374 (9th Cir. 1990)).
For the reasons set forth below, this court recommends that petitioner's motion for leave to amend be denied as futile because petitioner's proposed new ineffective assistance of counsel claims fail on their merits. In light of this recommendation, the court will not reach respondent's contentions that these claims are also time-barred and unexhausted. See 28 U.S.C. § 2254(b)(2) (an application for a writ of habeas corpus "may be denied on the merits, notwithstanding the failure of the applicant to exhaust the remedies available in ...