Vargas v. Knowles

          ORDER DENYING MOTION TO AMEND PETITION FOR WRIT OF HABEAS CORPUS RE: DKT. NO. 240

          EDWARD J. DAVILA UNITED STATES DISTRICT JUDGE

         In this habeas corpus proceeding under 28 U.S.C. § 2254, Petitioner Eddie M. Vargas (“Petitioner”) challenges his August 15, 1997 conviction in Santa Clara County Superior Court for first-degree murder and conspiracy to commit murder. Presently before the Court is Petitioner’s motion for leave to file an amended habeas petition. Dkt. No. 240. Specifically, Petitioner seeks leave to add certain claims for habeas relief that Petitioner has only recently exhausted in state court habeas proceedings. Respondent Mike Knowles (“Respondent”) opposes the motion on the grounds that the new claims are procedurally defaulted and untimely. Dkt. No. 241. After reviewing the parties’ submissions, the Court agrees with Respondent. The motion to amend the habeas petition is DENIED.

         I. BACKGROUND

         The accusations against Petitioner center on his involvement in the murder of Eli Rosas (“Rosas”), a member of the Northern Structure gang. Raul Reveles (“Reveles”) and Timo Hernandez (“Hernandez”), two brothers, were convicted in a separate trial of stabbing Rosas to death. The prosecution’s theory was that Petitioner had ordered and authorized the killing of Rosas by the brothers. The key evidence at Petitioner’s trial was the testimony of two cooperating gang members, Louie Chavez (“Chavez”) and Jerry Salazar (“Salazar”). Chavez and Salazar testified that, on the night that Rosas was killed, they held a three-way conference call with Petitioner, during which Petitioner gave them the verbal authorization to tell Reveles and Hernandez to kill Rosas. Largely on the basis of this evidence, Petitioner was convicted on both counts and sentenced to 60 years to life.

         Petitioner timely appealed the judgment and sentence. In conjunction with his direct appeal, Petitioner sought a writ of habeas corpus in the state appellate court. The Sixth District Court of Appeal denied the direct appeal in People v. Vargas, 91 Cal.App.4th 506 (2001), as well as Petitioner’s habeas petition. The California Supreme Court denied review on December 11, 2001, rendering Petitioner’s conviction final. On October 1, 2002, Petitioner filed a pro per petition for habeas corpus in the California Supreme Court. On April 30, 2003, the petition was denied as well.

         On June 24, 2003, Petitioner filed another pro per habeas petition with this Court, pursuant to 28 U.S.C. § 2254. Dkt. No. 1. Petitioner included 14 claims for relief, all of which he and Respondent agreed he had exhausted in his previous state habeas petitions. Dkt. No. 20-1 at 2. On June 15, 2005, Petitioner moved for the appointment of counsel pursuant to 18 U.S.C. § 3006A(a)(2). On July 21, 2005, the Court appointed counsel (“previous counsel”). Dkt. No. 142. On August 29, 2007, through previous counsel, Petitioner filed a traverse, which amended and supplemented the original petition by adding several new claims. Dkt. No. 154.

         In the traverse, Petitioner identified four “areas” of evidence that he contended would undermine the trial testimony from Chavez and Salazar about the phone call with Petitioner. Id., ¶ 9. The first was the testimony of Roland Saldivar (“Saldivar”), a close friend of Salazar’s who was staying with him on the night of the Rosas murder. Id., ¶ 9-1. Saldivar’s statements to a police investigator contradicted aspects of the trial testimony from Chavez and Salazar. Id. The second area was Chavez’ testimony at the Reveles trial, which contradicted Salazar’s testimony at Petitioner’s trial. Id., ¶ 9-2. The third area was testimony from Petitioner’s former sister-in-law, Michele Valderrama (“Valderrama”), who testified for the prosecution at Petitioner’s trial. Id., ¶ 9-3. Her trial testimony, as well as some statements she had made before trial, contradicted some of the trial testimony that Chavez and Salazar offered. Id. The fourth area was the testimony of Chico Guzman (“Guzman”), who had conducted a personal investigation of the killing. Id., ¶ 9-4. Guzman testified that Chavez and Salazar had told him a different story than the one they gave at trial. Id. By failing to highlight these contradictions despite Petitioner’s requests, Petitioner contended that his trial counsel had been so ineffective as to violate the Sixth Amendment’s guarantee of counsel. Id., ¶¶s 10-17.

         On June 23, 2008, the Court held that Petitioner had not yet exhausted these new claims in state court. Dkt. No. 172. On November 18, 2008, the Court granted Petitioner’s motion to stay federal proceedings to allow Petitioner to file a state habeas petition and exhaust the new claims. Dkt. No. 189. On June 11, 2010, frustrated with the progress of his state petition, Petitioner moved to replace previous counsel. Dkt. No. 192. The Court denied the motion on March 28, 2011. Dkt. No. 195.

         Meanwhile, on February 4, 2011, Petitioner filed a supplemental petition for habeas corpus in state court. Dkt. No. 240-1, Ex. A. On February 16, 2011, the Superior Court denied the petition as procedurally barred. Id., Ex. B. On November 14, 2011, this Court reopened the case at Petitioner’s request. Dkt. No. 207. On November 28, 2012, the Court granted Petitioner’s renewed request to appoint new counsel, citing irreconcilable differences between Petitioner and previous counsel. Dkt. Nos. 224, 226. Through his new counsel, on April 3, 2015, Petitioner filed the instant motion, in which he seeks to amend his previous petition to add the four claims discussed above. Dkt. No. 240.

         II. LEGAL STANDARD

         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 Fed.R.Civ.P. 81(a)(4). Under Federal Rule of Civil Procedure 15(a), a habeas petitioner may seek leave of court to amend his pleading at any time during the proceeding. See Mayle v. Felix, 545 U.S. 644, 655 (2005). “The [C]ourt should freely give leave when justice so requires.” Fed.R.Civ.P. 15(a). However, the Court may deny a motion for leave to amend a habeas petition if the respondent shows bad faith, undue delay, prejudice to the respondent, or that amendment would be futile. Nunes v. Ashcroft, 375 F.3d 805, 808 (9th Cir. 2003) (citing Bonin v. Calderon, 59 F.3d 815, 845 (9th Cir. 1995)). “Futility alone can justify the denial of a motion for leave to amend.” Id. (citing Bonin, 59 F.3d at 845).

         III. DISCUSSION

         Respondent urges the Court to deny the motion to amend on the grounds that the proposed claims are futile because they are procedurally defaulted and untimely. Respondent also contends that Plaintiff has not made a sufficient showing of actual innocence such that he may obtain collateral review. The Court considers each argument in turn.

         A. ...