United States District Court, S.D. California
ORDER ADOPTING REPORT AND RECOMMENDATION (1) GRANTING
PETITIONER'S MOTION FOR LEAVE TO FILE SECOND AMENDED
PETITION [Dkt. No. 20] (2) GRANTING MOTION TO HOLD FEDERAL
HABEAS PETITION IN ABEYANCE [Dkt. No. 14]
Gonzalo P. Curiel United States District Judge
Juan Rocha, proceeding with counsel, filed a motion for leave
to file his Second Amended Petition for Writ of Habeas Corpus
(“SAP”). Dkt. No. 20. Rocha previously amended
his claims on August 1, 2016 when he filed a First Amended
Petition. Dkt. No. 13. He also requests that the Court hold
his SAP in abeyance while he exhausts the latter two claims.
Dkt. No. 14. United States Magistrate Judge Nita L. Stormes
filed a Report and Recommendation granting petitioner's
motions for leave to file a second amended petition and
motion to hold his habeas petition in abeyance while he
exhausts in state court. Based on the reasoning below, the
Court ADOPTS the Magistrate Judge's
Report and Recommendation, GRANTS the petitioner's motion
for leave to file a second amended petition, and
GRANTS the petitioner's motion for stay
March 10, 2016, Rocha filed a Petition for Writ of Habeas
Corpus in this Court. Dkt. No. 1. On August 1, 2016, Rocha
filed a First Amended Petition (“FAP”), Dkt. No.
13, and a motion to stay his federal habeas petition while he
exhausted his state claims, Dkt. No. 14.
raised seven grounds for relief in the FAP: (1) insufficient
evidence for charge of second degree murder; (2) insufficient
evidence to warrant gang enhancement; (3) failure to instruct
on primary activities of a criminal street gang; (4) failure
to instruct jury on meaning of “gang
allegations”; (5) failure to instruct jury on lesser
included offense of involuntary manslaughter; (6) ineffective
assistance of counsel for failing to request an instruction
on involuntary manslaughter; (7) deprivation of Sixth
Amendment right to confront the gang expert who testified
with hearsay (as to petitioner's gang membership). Dkt.
September 20, 2016, Petitioner filed a motion for leave to
file a second amended petition. Dkt. No. 20. Petitioner's
SAP raises the previous seven grounds for habeas relief and
adds (8) deprivation of Sixth Amendment right to confront the
gang expert who testified with hearsay (as to gang's
predicate offenses). Petitioner is currently pursuing his
unexhausted habeas claims in state court. Pet.'s Status
Report, Dkt. No. 26.
November 14, 2016, Magistrate Judge Stormes filed a Report
and Recommendation granting the petitioner's motion for
leave to file a second amended petition, which applies to the
filing of both the first and second amended petitions,
his motion for stay and abeyance. Dkt. No. 24. No objections
have been filed to the Magistrate Judge's Report and
district court's role in reviewing a Magistrate
Judge's report and recommendation is set forth in 28
U.S.C. § 636(b)(1). “A judge of the court shall
make a de novo determination of those portions of the report
. . . to which objection is made.” 28 U.S.C. §
636(b)(1); see also Fed.R.Civ.P. 72(b); United
States v. Remsing, 874 F.2d 614, 617 (9th Cir. 1989).
However, in the absence of timely objection, as is the case
here, “the court need only satisfy itself that there is
no clear error on the face of the record in order to accept
the recommendation.” Fed.R.Civ.P. 72 advisory
committee's notes. When no objections are filed, a
district court may assume the correctness of the magistrate
judge's findings and recommendations, and decide the
motion on the applicable law. Campbell v. U.S. Dist.
Court, 501 F.2d 196, 206 (9th Cir. 1974); Johnson v.
Nelson, 142 F.Supp.2d 1215, 1217 (S.D. Cal. 2001).
Motion for Leave to File Second Amended Petition
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. Under
Fed.R.Civ.P. 15, courts should give leave to amend freely
“when justice so requires.” When ruling on a
motion to amend, the Ninth Circuit has “repeatedly
stressed that the court must remain guided by the underlying
purpose of rule 15, ” that is, “to facilitate
decisions on the merits, rather than on the pleadings.”
Nunes v. Ashcroft, 375 F.3d 805, 808 (9th Cir. 2003)
(internal quotation omitted). However, a court may deny a
motion to amend if it is made in bad faith, there was undue
delay, prejudice would result to the opposing party,
amendment would be futile, or amendment would delay ...