The opinion of the court was delivered by: Carolyn K. Delaney United States Magistrate Judge
This proceeding is currently stayed pending resolution of petitioner's state court exhaustion petition. Petitioner moves to lift the stay for the purpose of amending his federal petition. For the reasons set forth below, this court grants petitioner's motion.
MOTION TO AMEND I. Procedural Background
This action is proceeding on petitioner's first amended petition
filed October 10,
2008. (Dkt. No. 45.) Also on October 10, 2008, petitioner filed a
second state habeas petition
raising unexhausted claims. In re Lenart, No. S167453.*fn1
On November 5, 2008, the court granted petitioner's unopposed
request to stay these proceedings pending the state court's resolution
of his habeas petition. (Dkt. No. 56.) The California Supreme Court
has not resolved the second state petition.
In April 2012, petitioner moved this court to lift the stay and for leave to perpetuate the testimony of witness Frank O'Connor. The court granted that motion on April 6, 2012. (Dkt. No. 90.) Petitioner deposed Mr. O'Connor in June. (Dkt. No. 94.) On October 15, 2012, petitioner filed a third habeas petition in the California Supreme Court raising two new claims of ineffective assistance of counsel, which petitioner contends are based on information learned during Mr. O'Connor's deposition. In re Lenart, No. S205999. On October 22, the California Supreme Court ordered the parties to file informal briefing on the third state petition. Respondent filed an informal response on November 26. On November 1, petitioner filed the present motion in this court to again lift the stay temporarily and for permission to amend the first amended petition with the two new ineffective assistance of counsel claims. (Dkt. No. 96.) Respondent opposes the motion. (Dkt. No. 100.)
A petition for a writ of habeas corpus "may be amended or supplemented as provided in the rules of procedure applicable to civil actions." 28 U.S.C. § 2242; see also Rule 12, Rules Governing § 2254 Cases (Federal Rules of Civil Procedure are applicable to federal habeas proceedings "to the extent that they are not inconsistent.") Federal Rule of Civil Procedure 15(a) permits a party to amend its pleading "once as a matter of course" either 21 days after service or, if the pleading is "one to which a responsive pleading is required, 21 days after service of the responsive pleading . . . . [¶] In all other cases, a party may amend its pleading only with the opposing party's written consent or the court's leave. The court should freely give leave when justice so requires."
Rule 15 is not a perfect fit in a federal capital habeas case because a responsive pleading must be ordered by the court and may be filed a great deal of time after the filing of the petition, as is true in the present case. See Rule 5(a), Rules Governing § 2254 Cases. However, the Ninth Circuit Court of Appeals has looked to Rule 15's standards, and the cases interpreting them, when determining the propriety of a request to amend a capital habeas petition. See In re Morris, 363 F.3d 891 (9th Cir. 2004). The court in Morris described the appropriate considerations:
Under Rule 15(a), leave to amend "shall be freely given when justice so requires." Fed. R. Civ. Petitioner. 15(a). We have held that leave to amend, although within the discretion of the trial court, "should be guided by the underlying purpose of Rule 15(a) ... which was to facilitate decisions on the merits, rather than on technicalities or pleadings." James v. Pliler, 269 F.3d 1124, 1126 (9th Cir. 2001). A district court may, however, take into consideration such factors as "bad faith, undue delay, prejudice to the opposing party, futility of the amendment, and whether the party has previously amended his pleadings." Bonin v. Calderon, 59 F.3d 815, 845 (9th Cir.1995).
Id. at 894. The "crucial factor" in determining the propriety of a motion to amend is "the resulting prejudice to the opposing party." Howey v. United States, 481 F.2d 1187, 1190 (9th Cir. 1973). The court in Howey further noted that denying leave to amend would be an abuse of discretion "[w]here there is a lack of prejudice to the opposing party and the amended complaint is obviously not frivolous, or made as a dilatory maneuver in bad faith." Id. at 1190-91.
Respondent asserts that the court should deny petitioner's request because petitioner was aware, or should have been aware, of the facts underlying these two claims long ago.*fn2 The court rejects the idea that petitioner purposely delayed raising these issues, and respondent does not argue petitioner is acting in bad faith or otherwise attempting to delay these proceedings. More importantly, respondent makes no showing of any sort of prejudice. Respondent's citation to Foman v. Davis, 371 U.S. 178, 182 (1962) for the stated proposition that "unreasonable delay in filing a claim justifies the denial of a motion for leave to amend" is not well taken. The Court in Foman listed the considerations mentioned above by the Court of Appeals in Morris. The Court did not state that delay alone would be sufficient to deny leave to amend. In fact, the Court of Appeals has noted that "delay alone has not been deemed sufficient grounds to deny a Rule 15(a) motion to amend." Howey, 481 F.2d at 1191; see also DCD Programs, Ltd. v. Leighton, 833 F.2d 183, 186 (9th Cir. 1987) (same); United States v. Webb, 655 F.2d 977, 980 (9th Cir. 1981) (same).
Respondent also argues that petitioner's claims are frivolous and, with respect to one claim, should fail because it is raised outside the statute of limitations, apparently suggesting that amendment would be futile. The court rejects also this suggestion; petitioner has made a colorable showing in proposed claim 1(V) that he received ineffective assistance of counsel based on Mr. O'Connor's hiring of Mr. Pearce, assignment of Mr. Pearce to petitioner's case, and failure to supervise Mr. Pearce. (See Dkt. No. 96 at 28-51.) Petitioner has also made a colorable showing in proposed claim 1(W) that Mr. Pearce rendered ineffective assistance of counsel when he failed to disclose his state bar status to Mr. O'Connor and when he failed to inform petitioner that he had the right to new counsel when the county public defender contract was awarded to another attorney. (See Dkt. No. 96 at 52-56.) Indeed, as respondent points out, these new claims are intertwined with petitioner's existing claims of ineffective assistance of counsel. Further, respondent's assertion that the statute of limitations bars ...