United States District Court, N.D. California
ELI E. GARCIA, Plaintiff,
JIM MACDONALD, et al., Defendants.
ORDER GRANTING MOTION FOR LEAVE TO FILE AMENDED
William H. Orrick United States District Judge.
March 1, 2017, I granted petitioner's request for an
evidentiary hearing to investigate his habeas claim of juror
bias. (Dkt. No. 25). Following that order, respondent moved
for leave to file an amended answer to the order to show
cause, seeking to add a new argument that petitioner's
juror bias claim is procedurally defaulted based on a Supreme
Court case published after his initial answer was filed.
See Mot. for Leave (Dkt. No. 30). Respondent further
moved for reconsideration of the Order granting an
evidentiary hearing because (1) I failed to properly apply
AEDPA; and (2) the juror bias claim is procedurally
defaulted. Reconsideration Mot. at 1-2 (Dkt. No. 31). The
motion for leave to file an amended answer is GRANTED because
it is not the product of undue delay, will not cause undue
prejudice, and is not futile. Respondent's proposed
Amended Answer and Memorandum of Points and Authorities in
Support, filed at Dockets 30-1 and 30-2 will be deemed filed
as of today. Petitioner will have 30 days from the date of
this Order to file an Amended Traverse. I will defer ruling
on respondent's motion for reconsideration until after
petitioner has had a chance to file his Amended Traverse.
is a California state prisoner serving a sentence of 17
years. A jury found him guilty of 15 counts of lewd acts upon
a child under the age of 14, under Cal. Penal Code §
288(a) and six counts of contacting or communicating with a
minor with the intent to commit a sex offense under Cal.
Penal Code § 288.3(a). On direct appeal to the
California Court of Appeal, petitioner raised seven claims as
grounds for relief but did not raise his juror bias claim.
The California Court of Appeal affirmed the conviction,
People v. Garcia, No. H039212, 2014 WL 3752799
(Cal.App. July 31, 2014) (Pet. Ex. 1), (Dkt. No. 1-1), and on
October 15, 2014 the California Supreme Court denied review.
People v. Garcia, No. S221105 (Cal. Oct. 15, 2014)
(en banc) (Pet. Ex. 4), (Dkt. No. 1-1).
his direct appeal was pending, petitioner filed for habeas
relief in the California Court of Appeal, raising his juror
bias claim for the first time along with three other claims
that he had raised on direct appeal. The petition was denied
without comment on July 31, 2014. In re Garcia, No.
H040599 (Cal.App. July 31, 2014) (Pet. Ex. 2), (Dkt. No.
filed a petition for habeas corpus with the California
Supreme Court on September 29, 2014, raising only his juror
bias claim and his related ineffective assistance of counsel
claim as grounds for relief. The California Supreme Court
denied the petition on December 17, 2014, stating only
“The petition for writ of habeas corpus is
denied” and citing People v. Duvall (1995) 9
Cal.4th 464, 474; and In re Dixon (1953) 41 Cal.2d
756, 759. See In re Garcia, No. S221537 (Cal. Dec.
17, 2014) (en banc) (Pet. Ex. 5), (Dkt. No. 1-1).
filed his petition for habeas corpus in federal court on
September 29, 2015, raising all eight claims for relief that
he had raised on direct appeal and in his state habeas
petitions, including his juror bias claim. See Pet.
(Dkt. No. 1). Respondent filed his answer on April 1, 2016.
See Answer (Dkt. No. 14).
31, 2016, the Supreme Court decided Johnson v. Lee,
136 S.Ct. 1802 (2016), in which it reversed a prior Ninth
Circuit decision and held that California's
Dixon bar is a well-established and regularly
followed state procedural bar that is adequate to bar federal
habeas review. Lee, 136 S.Ct. at 1805.
filed his traverse on June 30, 2016. Traverse (Dkt. No. 22).
I granted petitioner's request for an evidentiary hearing
on his juror bias claim on March 1, 2017 and denied his
remaining claims for habeas relief. See Dkt. No. 25.
On March 14, 2017 I held a status conference with the parties
to discuss the scheduling and briefing related to the
evidentiary hearing. See Dkt. No. 28. At that
hearing, counsel for respondent indicated her intent to file
a motion for leave to file an Amended Answer to assert the
affirmative defense that petitioner's juror bias claim is
procedurally barred under Dixon. She further
requested leave to file a motion for reconsideration on the
basis of the new Dixon claim and on the basis that I
had not applied the proper AEDPA standard. I granted
respondent leave to file a motion for reconsideration and
respondent subsequently filed the pending motions.
Federal Rule of Civil Procedure 15(a)(2), a party may amend
its pleading to add an affirmative defense with leave of
court. “The court should freely give leave when justice
so requires.” Fed.R.Civ.P. 15(a)(2). In assessing
whether leave is appropriate, courts generally consider five
factors: (1) bad faith; (2) undue delay; (3) prejudice to the
opposing party; (4) futility of amendment; and (5) whether
the moving party has previously amended its pleadings.
Foman v. Davis, 371 U.S. 178, 182 (1962). “It
is common practice to allow [parties] to amend their
pleadings to accommodate changes in the law.” Doe I
v. Nestle USA, Inc., 766 F.3d 1013, 1028 (9th Cir.
asserts that leave to amend is appropriate because he could
not assert his Dixon bar defense at the time he
filed his original answer. Mot. for Leave at 3. He explains
that under the prevailing Ninth Circuit precedent at the
time, Dixon was not an adequate procedural bar. He
argues that the Supreme Court's decision in Lee,
which reversed the Ninth Circuit's ruling and established
that Dixon is an adequate procedural bar, is a
material change in the controlling law and justifies granting
him leave to amend. Petitioner responds that (1) ...