The opinion of the court was delivered by: Allison Claire United States Magistrate Judge
Petitioner, a state prisoner proceeding pro se, has filed an application for habeas relief pursuant to 28 U.S.C. § 2254. Pending before the court is petitioner's March 27, 2012 motion for leave to file an amended petition. Doc. No. 20. Respondent opposes the motion, Doc. No. 23, and petitioner has filed a reply, Doc No. 24.
Petitioner was convicted on March 28, 2008 of first degree murder and first degree robbery and was determined to have suffered two prior serious felony convictions. He was sentenced to a term of eighty-five years to life. The Third District Court of Appeal affirmed the judgment on March 18, 2010. Petitioner's petition for review was denied by the California Supreme Court on June 9, 2010, and the judgment became final on September 7, 2010. The original federal petition was dated August 27, 2010, and docketed by the court on September 15, 2010. The answer was filed on December 6, 2010. Doc. No. 9. Petitioner filed a motion to stay, pending exhaustion of additional claims, on January 19, 2011; the motion was denied on June 23, 2011. Doc. No. 17. Petitioner filed a traverse on July 28, 2011. Doc. No. 19. The motion for leave to amend, filed March 27, 2012, is dated March 21, 2012.
Standards Governing Leave to Amend
Under 28 U.S.C. § 2242, an application for a writ of habeas corpus "may be amended or supplemented as provided in the rules of procedure applicable to civil actions." See also Rule 12 of the Rules Governing § 2254 Cases (recognizing general applicability in habeas of rules of civil procedure). Petitioner's motion is governed by Fed. R. Civ. P. 15(a)(2), which permits an amended pleading "only with the opposing party's written consent or the court's leave."*fn1 In considering whether to grant leave to amend, under Rule 15(a)(2), the court "should freely give leave when justice so requires." See, e.g., Outdoor Systems, Inc. v. City of Mesa, 997 F.2d 604, 614 (9th Cir.1993) (the Ninth Circuit reviews a denial of leave to amend "for abuse of discretion and in light of the strong public policy permitting amendment."). Factors to be considered include "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).
In general, "[a] document filed pro se is 'to be liberally construed,' and a 'pro se complaint, however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers.' " Erickson v. Pardus, 551 U.S. 89, 127 S.Ct. 2197, 2200, 167 L.Ed.2d 1081 (2007) (per curiam) (quoting Estelle v. Gamble, 429 U.S. 97, 106, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976)) (internal citations omitted); see also Corjasso v. Ayers, 278 F.3d 874, 878 (9th Cir.2002) ("Pro se habeas petitioners may not be held to the same technical standards as litigants represented by counsel." ); United States v. Seesing, 234 F.3d 456, 462 (9th Cir.2001) ("Pro se complaints and motions from prisoners are to be liberally construed." ).
Woods v. Carey, 525 F.3d 886, 889-90 (9th Cir. 2008). While the court must construe a pro se petition liberally, "the petitioner is not entitled to the benefit of every conceivable doubt; the court is obligated to draw only reasonable factual inferences in the petitioner's favor." Porter v. Ollison, 620 F.3d 952, 958 (9th Cir. 2010).
Petitioner seeks leave to amend in order to add newly exhausted claims. He submits a proposed first amended petition, and attaches orders denying state habeas relief from the superior court, court of appeal, and California Supreme Court. Doc. No. 21. The motion to amend references petitioner's prior request for a stay, which had been based on the pendency of exhaustion proceedings. See Doc. No. 20. Respondent opposes the motion on grounds of undue delay, prejudice, non-exhaustion and untimeliness of the newly-presented claims. Respondent contends, among other things, that the newly exhausted claims are untimely because they do not "relate back" to the original petition. Doc. No. 23, pp. 1, 3. Petitioner counters that his claims are exhausted, not untimely, and relate back to those of the original petition. He argues further that his claim of actual innocence should permit him to proceed on his new claims even if they are untimely.*fn2 Amended Petition, Doc. No. 21; Reply (Doc. No. 24), pp. 1-8.
The exhaustion of state court remedies is a prerequisite to the granting of a petition for writ of habeas corpus. 28 U.S.C. § 2254(b)(1). A petitioner satisfies the exhaustion requirement by providing the highest state court with a full and fair opportunity to consider all claims before presenting them to the federal court. Picard v. Connor, 404 U.S. 270, 276 (1971); Middleton v. Cupp, 768 F.2d 1083, 1086 (9th Cir. 1985), cert. denied, 478 U.S. 1021 (1986).
In opposition to the motion, respondent affirmatively represented to this court that the claims of the proposed amended petition are unexhausted. In support of this contention respondent merely pointed out that petitioner had not demonstrated that the claims had previously been presented to the California Supreme Court. Doc. No. 23, pp. 5-6. The court subsequently ordered petitioner to provide a copy of the habeas petition he had filed in the state Supreme Court, which he did. Doc. Nos. 25, 33. The claims in the state and federal petitions are ...