ORDER GRANTING PETITIONER'S MOTION FOR LEAVE TO FILE FIRST AMENDED PETITION FOR WRIT OF HABEAS CORPUS
JEFFREY T. MILLER, District Judge.
Petitioner filed a First Amended Petition ["FAP"] with the Court on June 17, 2013. (Doc. No. 215.) After the Court issued a revised briefing schedule,  on August 1, 2013, Petitioner filed a Motion for Leave to File a First Amended Petition ["Mot."], arguing that a first amended habeas corpus petition is necessary for a complete review of: (1) the claims initially filed with the Court on September 29, 2000, and (2) those additional claims later raised and exhausted in case number S156846 before the California Supreme Court. (Doc. No. 220 at 1, 8.)
On September 16, 2013, Respondent filed an Opposition ["Opp."]. (Doc. No. 225.) Respondent argues that: (1) the newly exhausted claims are untimely; (2) equitable tolling is not available based on the Court's prior statements regarding stay and abeyance or the conduct of prior counsel; (3) the majority of the newly-added claims do not relate back to original petition; (4) amendment is futile with respect to several claims due to procedural default; and (5) amendment is futile with respect to all of the new claims because Petitioner cannot meet the standard for habeas relief under 28 U.S.C. § 2254. (Opp. at 8-24.) On November 1, 2013, Petitioner filed a Reply with accompanying exhibits. (Doc. No. 239.) Petitioner contends that: (1) the amended petition is timely because this Court indicated its intention to stay the initial petition pending the exhaustion of state court remedies as to the new claims, and because the "egregious facts" of this case justify equitable tolling, and (2) Respondent's request that the Court deny several claims on the basis of procedural default, and deny the entire petition on the basis of futility, is tantamount to a motion for summary judgment and requires additional briefing prior to adjudication. (Reply at 7-41.)
The Court has thoroughly considered the pleadings, the attached exhibits, and the procedural and factual history of the case. For the reasons discussed below, the Court GRANTS Petitioner's Motion for Leave to file a First Amended Petition.
I. PROCEDURAL HISTORY
On July 21, 1992, a San Diego County jury found Petitioner guilty of first-degree murder, first-degree robbery and first-degree burglary in the in the death of Yvonne Weden. (CT 2506-09.) As to each offense, the jury found true that Petitioner personally used a knife, that he inflicted great bodily injury on the victim, and that the victim was a person 60 years of age or older. (Id.) The jury also found true two special circumstances, felony-murder robbery and felony-murder burglary. (Id.) On August 24, 1992, the jury sentenced Petitioner to death. (CT 2534-35.) The trial court denied Petitioner's motion for a new trial and sentenced Petitioner to death on October 20, 1992. (CT 2536-37.)
On January 24, 1996, attorney Barry Morris was appointed by the California Supreme Court to handle Petitioner's direct appeal proceedings and state habeas petition. On direct appeal, the California Supreme Court affirmed Petitioner's conviction and sentence on November 12, 1998. See People v. Roybal , 19 Cal.4th 481 (1998). On January 13, 1999, the California Supreme Court denied the petition for rehearing. After one extension of time, a petition for writ of certiorari was filed in the United States Supreme Court on May 13, 1999, which was denied on October 4, 1999.
On October 5, 1999, Petitioner filed a motion for appointment of counsel in this Court. On December 14, 1999, Elizabeth Barranco and Russell Babcock were appointed as federal habeas counsel. On April 6, 2000, Barry Morris moved to be relieved as state habeas counsel by the California Supreme Court, without filing a state habeas petition. On June 16, 2000, Petitioner moved in this Court to equitably toll the deadline for filing the federal habeas petition in light of the delay in receiving Petitioner's files and the disorganized state of those files, and at a hearing held on June 30, 2000, the Court denied the request. The Court and parties agreed that the timely filing deadline for the federal petition would be October 3, 2000. (Doc. No. 239-1 at 27, Ex. C to Reply.) With respect to the filing of the federal Petition and pursuit of state remedies, the Court stated that:
I think that's the manner in which this case should proceed, that there should be a filing of an exhausted federal habeas petition, that counsel at that point, if they need to put a substantial amount of their focus and attention on what's happening with the state petition, that they can turn their efforts in that direction, deal with the California Supreme Court, seek compensation there; but at least you'll have an exhausted petition on file here. If it's necessary to stay that petition following the pursuit of a state petition, then this Court will be ready, willing, and able to stay the federal claim upon a showing of good cause; I would have no reluctance in doing so.
(Id. at 63.) At the end of the June 30 hearing, the Court reiterated as follows: "The way things stand right now, I'll expect to see an exhausted federal petition filed by October 3 unless I see a further motion come in." (Id. at 77.)
On July 31, 2000, federal counsel Barranco and Babcock filed a motion in the California Supreme Court, requesting appointment as state habeas counsel. Both Mr. Morris' motion to be relieved and Ms. Barranco and Mr. Babcock's motions for appointment were denied by the California Supreme Court on August 16, 2000.
On September 29, 2000, federal counsel Barranco and Babcock timely filed a federal habeas petition in this Court. The federal Petition contained a footnote indicating in part that, "[p]ursuant to the ruling of this Court on June 30, 2000, petitioner alleges herein only those claims previously exhausted in the courts of the State of California. Petitioner intends to file a subsequent petition in this court should claims which have not yet been adjudicated in the courts of the State of California be denied in that forum." (Doc. No. 25 at 1, fn.1.) Respondent filed an Answer to the federal Petition on October 27, 2000, and on May 2, 2001, Petitioner filed a Traverse.
At a July 13, 2001 status hearing, the parties and the Court engaged in a discussion that centered on the status of the state and federal court proceedings and explored possibilities regarding federal funding for counsels' work. The Court indicated that "ultimately you want to get a petition over here that's complete, where all claims have been exhausted, and to the extent that there are state claims that will ultimately be recast as federal claims, then there is a need to ultimately get the case in that posture so that it can get - we can get moving on with this case, we can proceed to an evidentiary hearing, and ultimately we can get this case ruled upon." (Doc. No. 239-1 at 106, Ex. E to Reply.) During the hearing, Respondent indicated that "we are not going to accept what I assume is this Court's implicit ruling that anything newly discovered at this point in time or from this point in time into the future can in fact be presented to this Court and ruled on on the merits." (Id. at 113.) Respondent asserted that the federal case, as it stood, "is ripe for decision." (Id. at 114.) The parties also engaged in a lengthy discussion on the Court's ability to stay the case, the nature of the state proceedings given the lack of a pending petition, and the impact of prior state habeas counsel's failure to timely file a state habeas petition. The Court commented that "[t]he underlying circumstances in this case are most unusual." (Id. at 126.) In response to Respondent's repeated assertion that the case was ready for decision, the Court stated:
Congress never could have contemplated this kind of a scenario, Ms. Boustany [prior counsel for Respondent], with all due respect, and if you can find me one case in the entire legislative history behind AEDPA that indicates that Congress was contemplating this kind of an unusual circumstance, I'd be very interested in having that cited to me.
(Id. at 153.)
On July 25, 2001, this Court ordered federal counsel to again seek appointment in state court. On November 5, 2001, federal counsel moved to be appointed state habeas counsel. On November 15, 2001, attorney Morris again moved to withdraw as state habeas counsel. On December 12, 2001, the California Supreme Court granted permission for Morris to withdraw and appointed Barranco and Babcock as state habeas counsel. At a December 14, 2001 status hearing, attorney Barranco estimated that they could have a state habeas petition on file by June 1, 2002. (Doc. No. 239-1 at 189, Ex. G to Reply.) At a July 1, 2002 status hearing, attorney Barranco indicated a revision to the schedule, estimated that she expected to submit a draft of the petition to the California Appellate Project for review by August 1, and stated that she hoped to have it filed with the California Supreme Court in September or October, 2002. (Doc. No. 239-1 at 196-98, Ex. H to Reply.) Between January and April 2003, the Court scheduled and held several status conferences with counsel for Petitioner to discuss Petitioner's representation, communication difficulties between co-counsel, and their communication with Petitioner. (See Doc. Nos. 60-67, Ex. 37 to FAP.)
On May 21, 2003, this Court issued an order relieving attorney Babcock as counsel of record and designating him "of counsel, " and stating that Mr. Babcock "will remain available for reappointment by the court as counsel of record in the event of disability, incapacity, or other inability of attorney Elizabeth Barranco to serve as counsel on this case in the future." (Doc. No. 68.) On or about June 4, 2003, the Court received a letter from Petitioner, and, pursuant to Local Rules, forwarded the letter to counsel for Petitioner. (Doc. No. 69.) In the letter, Petitioner stated that with Mr. Babcock's removal as counsel "the Court has removed the only reliable representation I have, " and said that he and Ms. Barranco "have not seen eye to eye on issues related to my appeal." (Id. at 2.) Petitioner stated that "I have tried to communicate with her, to no avail. She refused to communicate with me concerning matters related to my appeal. I have requested numerous time [sic] to be involved in the proceeding of my case. I have heard more from this Court, then [sic] Mrs [sic] Barranco." (Id.) Petitioner also stated that in the two times he spoke to her in person, "not once has she talked to me about matters relating to my case." (Id. at 3.) Instead, Petitioner stated that Ms. Barranco "has communicated to me facts of her personal life, that I have no interest in and has nothing to do with my appeal. She hired someone to work on my case, then fired them. This has been a topic of conversation for some time. In her communication of late, she has expressed distrust in other's working on my appeal." (Id.) Petitioner requested "assistance in finding an agreeable solution to this impasse. I want the Court to be aware of the conflict between myself and Mrs [sic] Barranco." (Id.)
On August 28, 2003, this Court ordered attorney Barranco to appear at a hearing on September 3, 2003, regarding her continued representation of Petitioner, and indicated that counsel "is strongly advised that her failure to appear may result in her being relieved as counsel of record for petitioner." (Doc. No. 70.) After attorney Barranco failed to appear at the September 3, 2003 hearing, on September 4, 2003, the Court set an order to show cause hearing for September 17, 2003 and again ordered Barranco to appear, again advising her that "her failure to appear will result in her being relieved as counsel for Petitioner." (Doc. No. 72.) At the September 17, 2003 hearing, the Court ordered Barranco to submit a written response to the order to show cause, and set another hearing for October 21, 2003. On October 21, 2003, the Court withdrew Barranco as counsel and substituted in attorney Babcock. (Doc. No. 75.)
At an October 23, 2003 hearing, attorney Babcock indicated his desire to remain as second counsel on the case and to have a new primary counsel appointed. (Doc. No. 239-2 at 3, Ex. K to Reply.) He indicated that the case was now at "ground-zero, " and stated that:
At one point there were approximately 60 to 70 banker's boxes of original documents that included notes of the attorneys, DNA material, exhibits, investigative reports, and I don't believe any of that material is any longer extant. It was all stored at Ms. Barranco's house, and my understanding from when I went there with my investigator, the material has been destroyed, that it was thrown out basically.
(Id. at 4.) He indicated that it would be "extremely difficult for counsel" going forward, "because it's going to involve trying to retrieve as much of these lost memories as possible, " and opined that "a lot of this material will be never be able to be retrieved because there was only one copy of those original notes." (Id.) While he had been told work was being done on the case, Babcock stated that "I don't have any evidence that any work was done over the past six to eight months on the case. I haven't seen any work product, I haven't been provided any even though I repeatedly requested it." (Id. at 8.) When asked for details, Babcock stated that he was originally responsible for organizing the files and delivering them to Barranco, and stated that:
My understanding was from a conversation I had with Ms. Barranco in the presence of my investigator was she underwent an eviction process at her home, and when she was being evicted from her home, the boxes were left out in the rain, they were rained upon, and they were abandoned, and basically at that point they were thrown out in the trash by another individual, not herself. When I went to see her, that's what she indicated to me.
Again, I'm indicating to the Court that I'm not talking about transcripts, I'm not talking about cases; I'm talking about investigative reports, I'm talking about photos from this man's life, basically his entire life in these 40 boxes.
(Id. at 9.) Babcock also noted that while Barranco remained lead counsel before the California Supreme Court, the deadline for filing a state habeas petition remained pending, and was due in December 2003. (Id. at 13.) Babcock agreed to inform counsel for Respondent of the current situation, and indicated plans to file a motion before the court regarding the status of the case and potential suggestions for proceeding in the future. (Id. at 17.)
On November 24, 2003, the Court held another status conference and indicated that it had ordered Barranco to appear with all material pertaining to Petitioner's case. (Doc. No. 239-2 at 27, Ex. L to Reply.) The Court noted that Barranco had not appeared, but the Court received a fax from Barranco a few minutes prior to the scheduled start of the hearing. (Id. at 29.) In the fax, Barranco indicated that she did not receive notice of the August 28, 2003 order to show cause hearing until provided notice by co-counsel on September 9, 2003. Barranco asked the Court to continue this hearing, explaining that she had been going through child custody issues since June 2003, and that there was a hearing that morning on an emergency motion she had made in that matter. (Id. at 29-30.) Barranco stated that she needed to retain the files on the Roybal case, as she remained counsel of record in state court, and indicated plans to check with the Court's clerk after the family court hearing. (Id. at 30.) In response, the Court trailed the status hearing to the afternoon and had a message to that effect sent to the fax number on Barranco's letter, but Barranco failed to respond to the message or contact chambers. (Id. at 33.)
At a December 3, 2003 status conference, Babcock stated that he still had no contact with Barranco and was concerned about the looming December 11, 2003 deadline to file the state habeas petition, as well as the status of any documents in her possession. (Doc. No. 239-2 at 40-41, Ex. M to Reply.) The Court and counsel also discussed the possibility of successor counsel and potential time and financial considerations. (Id. at 42-46.) The Court issued an OSC for Barranco and set a date for December 16 for her to appear. (Id. at 47.) Babcock indicated that he had contacted counsel for Respondent to apprise her of the situation. (Id. at 48.)
Barranco appeared at the December 16, 2003 hearing, where the Court indicated that the primary concern was securing and preserving case materials in her possession. (Doc. No. 239-2 at 61-62, Ex. N to Reply.) Barranco stated that, "No physical evidence that I know of was lost or destroyed, " and said she believed only paper transcripts had been lost. (Id. at 62.) Barranco also indicated a need for the materials in order to complete the state habeas petition, as she remained counsel of record in that matter. (Id. at 62-63.) Barranco said that there were 30 boxes in the beginning, and she presently had about 12. (Id. at 65.) The Court ordered Barranco to transfer all remaining files in her possession to Babcock by the end of the month of December, in order to ensure the security of those materials. (Id. at 70-74.)
At a January 6, 2004 hearing, Barranco appeared by phone and indicated that over two meetings in December, she had turned over all files in her possession to Mr. Stevens, an investigator employed by Babcock. (Doc. No. 239-2 at 81, Ex. O to Reply.) Stevens stated that he had traveled to her home nine times total, went through disorganized materials in her garage with her, and while he believed he had all of the relevant files from the garage, he "can't be certain because some of the material was rather disorganized and in a condition that couldn't be easily read." (Id. at 85-86.) Stevens stated that the materials he obtained would probably fill about 10 boxes. (Id. at 90.) Barranco stated that she did not have any case materials on her computer that Babcock did not already have copies of. (Id. at 92.) The Court and counsel discussed possibilities for record reconstruction and the posture of the state case. (Id. at 95-101.) Respondent again articulated that "this Court has a fully exhausted pending petition before it and a case that can and should be decided." (Id. at 102.) The Court ordered another status conference to allow time for an inventory of the remaining case materials. (Id.)
The Court held another status conference on February 6, 2004, for further discussions on the status of the record, efforts at reconstruction, and the possibility of appointing successor federal habeas counsel. (Doc. No. 239-2, Ex. P to Reply.) With respect to Barranco's prior representations that the filing of a state habeas petition had been imminent, Babcock stated that the inventory of materials did not reveal drafts of anything, and that "we're in one of two situations right now. We're either in a situation where those representations were not true, or we're in a situation in which the material was in fact in a draft form and it was destroyed; and I'm not aware of which of those two possibilities is the situation." (Id. at 125.) After further discussions on possibilities for proceeding, the Court stated that, "[w]hat has happened in this case is unfortunate and represents perhaps the most bizarre set of circumstances I've ever seen in any case, whether civil or criminal, since I've been on either bench." (Id. at 134.) The Court opined that it "it doesn't seem to me, given the history of this case and the difficulties counsel have had, possible for counsel to continue either with the state matter or the federal matter. Seems to me that it would be appropriate for counsel to withdraw at this point, but to let new counsel come in and start fresh." (Id.)
Respondent again noted that "we would like to reiterate or object or lodge our objection, again, as I think we've stated all along and been consistent, we feel that there is a fully exhausted petition before this Court which this Court can decide." (Id. at 135.) The Court noted that either route - whether proceeding on the federal petition as currently constituted, or staying the federal action so a state petition could be filed and then integrated into the federal petition - would involve a significant length of time, and inquired who would represent Petitioner if the Court chose to follow Respondent's proposed course of action. (Id. at 137-38.) The Court noted that current federal and state counsel intended to withdraw, and prospective counsel noted that Respondent's option would "be a death blow" to their entry into Petitioner's case, as it would present "an impossible situation." (Id. at 139-40.) The Court indicated that "as a practical ...