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Rocha v. McDowell

United States District Court, S.D. California

March 13, 2017

JUAN ROCHA, Plaintiff,
v.
NEIL MCDOWELL, Warden, Defendant.

          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]

          Hon. Gonzalo P. Curiel United States District Judge

         INTRODUCTION

         Petitioner 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 and abeyance.

         PROCEDURAL BACKGROUND

         On 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.

         Petitioner 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. No. 13.

         On 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.

         On 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, [1] and his motion for stay and abeyance. Dkt. No. 24. No objections have been filed to the Magistrate Judge's Report and Recommendation.

         STANDARD OF REVIEW

         The 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).

         DISCUSSION

         A. Motion for Leave to File Second Amended Petition

         1. 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. 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 ...


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