The opinion of the court was delivered by: Jennifer L. Thurston United States Magistrate Judge
ORDER GRANTING PETITIONER‟S MOTION TO AMEND PETITION (Doc. 11) ORDER DENYING PETITIONER‟S MOTION TO AMEND PETITION (Doc. 22) ORDER DISREGARDING PETITIONER‟S MOTION FOR STATUS (Doc. 24) ORDER REQUIRING PETITIONER TO FILE TRAVERSE WITHIN THIRTY DAYS
Petitioner is a state prisoner proceeding in propria persona with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. On July 1, 2011, Petitioner filed his written consent to the jurisdiction of the Magistrate Judge for all purposes. (Doc. 6). On December 16, 2011, Respondent filed a written consent to the Magistrate Judge‟s jurisdiction. (Doc. 15).
The instant petition was filed on June 15, 2011. (Doc. 1). In that petition, Petitioner raised four grounds for relief: (1) insufficient evidence to support a true finding regarding the street gang special circumstance; (2) instructional error as to the street gang enhancement denied Petitioner his right to a fair trial; (3) the trial court erred in imposing and staying certain enhancements; (4) the trial court erred in failing to stay sentence on counts three and four because this was the basis for imposing 2 the life-without-parole sentence in count one. (Doc. 1). 3
On June 15, 2011, after a preliminary screening of the petition, the Court issued an Order to Show Cause why the petition should not be dismissed as containing unexhausted claims. (Doc. 5). As 5 the Court explained in that order, it appeared from the petition that three of the four claims in the 6 petition had never been raised before the California Supreme Court. The Order to Show Cause 7 provided that Petitioner could file a response within thirty days. On July 1, 2011, Petitioner filed a 8 response, alleging that he raised all four claims in his Petition for Review before the California 9 Supreme Court and that his failure to note that fact on his form petition was an inadvertent error. (Doc. 7).
Also on July 1, 2011, Petitioner filed a motion to stay proceedings in order to exhaust new claims. (Doc. 8). Petitioner‟s motion, however, did not identify those potential claims to be exhausted nor did Petitioner explain what efforts, if any, he had undertaken or was going to undertake to exhaust such claims. Accordingly, on October 21, 2011, the Court issued an order denying without prejudice Petitioner‟s motion for stay of proceedings, predicating its ruling on Petitioner‟s failure to identify the claims he wished to exhaust, thus precluding the Court from determining whether or not such claims would be "plainly meritless," as required by Rhines v. Weber, 544 U.S. 269 (2005). (Doc. 9). Petitioner was given the opportunity to file an amended motion for stay containing further information on the potential claims within thirty days. (Id.).
On November 21, 2011, Petitioner filed one of his two motions to amend the petition. (Doc. 11). In this first motion to amend, Petitioner, citing federal case law that requires this Court to afford a petitioner proceeding on a "mixed" petition to withdraw his unexhausted claims and then amend the still-pending petition with additional claims once they are exhausted, asked the Court‟s permission to add new grounds "just exhausted by the California Supreme Court." (Doc. 11). Petitioner did not provide the Court with either the state habeas petition he had filed in the California Supreme Court, that court‟s order denying the petition, or any independent information regarding the nature or scope of the claims he had just exhausted. Therefore, the Court assumed that Petitioner was referring to the unexhausted claims in his original petition. The following day, therefore, the Court issued an order 2 requiring Respondent to file a response to all of the claims in the original petition. (Doc. 12). 3
On March 13, 2012, Respondent filed an answer in which Respondent addressed the merits of 4 grounds one and two in the original petition, but argued, inter alia, that grounds three and four 5 remained unexhausted and should be dismissed. (Doc. 20). On March 22, 2012, Petitioner filed the 6 second of his motions to amend the petition, once again arguing that, under federal law, the Court 7 must give him a chance to strike his unexhausted claims and amend the petition with the dismissed 8 claims after exhausting them in state court. (Doc. 22). On this occasion, however, unlike the previous 9 one, Petitioner lodged with the Court a proposed first amended petition, omitting the unexhausted claims in the original petition and raising the following three new grounds, never previously presented to the Court: (1) the jury instructions on principals improperly shifted the burden of proof (ground 3); (2) the prosecution intentionally failed to preserve potentially exculpatory evidence (ground 4); and (3) trial counsel was ineffective because he failed "to call any witnesses, expert testimony supporting the defense" and did not argue that Petitioner was not an active gang member (ground 5). (Doc. 23, pp. 10-13).
On April 20, 2012, before the Court could sort out the above chronology and issue an order regarding the two motions to amend, Petitioner filed a motion requesting the status of his lodged amended petition. (Doc. 24). On May 10, 2012, Respondent filed an opposition to the later motion to amend, contending that any amendment would be futile since the proposed "new" claims do not relate back to the original claims and thus are now barred by the statute of limitations governing habeas cases. (Doc. 25). For the reasons set forth below, the Court agrees with Respondent that the claims do not relate back to the original petition and thus are barred by the one-year limitation period.
A. Petitioner‟s First Motion to Amend.
A petitioner may amend a petition for writ of habeas corpus once "as a matter of course," and without leave of Court, before a response has been filed under Federal Rule of Civil Procedure 15(a), as applied to habeas corpus actions pursuant to 28 U.S.C. § 2242 and Rule 11 of the Rules Governing Section 2254 Cases. Calderon v. United States District Court (Thomas), 144 F.3d 618, 620 (9th Cir. 1998); Bonn v. Calderon, 59 F.3d 815, 845 (9th Cir. 1995). Leave of Court is required for all other 2 amendments. Rule Civ. P. 15(a). Here, when Petitioner filed his original motion to amend the petition 3 on November 21, 2011, Respondent had not yet filed a response. Thus, leave of Court was not 4 required for any amendment to the petition. 5
However, as Respondent indicates in the opposition to Petitioner‟s motion, Petitioner‟s first 6 motion to amend requested permission "to add new grounds, just exhausted by the California Supreme 7 Court," while not identifying those "new grounds" nor providing a copy of the state habeas petition 8 presented to the California Supreme Court that, presumably, would have listed those new grounds. 9
Instead, Petitioner left the Court and Respondent to assume that the "new grounds" were in fact those claims in the original petition that were unexhausted. Based upon this premise, the following day the Court ordered Respondent to file a response to the claims contained in the original petition. (Doc. 12, p. 2). After several extensions of time, Respondent duly filed an answer addressing the merits of some claims while asserting the affirmative defense of lack of exhaustion as to the remaining claims. In effect, then, since no response had been filed before the motion to amend was filed, by ordering Respondent to file a response to the claims in the original petition, the Court gave Petitioner de facto ...