United States District Court, E.D. California
KENNETH A. SHARONOFF, Petitioner,
FINDINGS AND RECOMMENDATIONS
ALLISON CLAIRE UNITED STATES MAGISTRATE JUDGE
is a California state prisoner proceeding pro se with an
application for a writ of habeas corpus pursuant to 28 U.S.C.
§ 2254. He has filed a motion to amend his petition (ECF
No. 86) which, for the reasons stated below, should be
16, 2017, the court issued findings and recommendations which
determined that petitioner's claims should be denied. ECF
No. 84. These claims were: (1) that the admission of his
prior convictions as evidence at trial violated his due
process rights; and (2) that the trial court erred when it
declined his request that the jury be instructed on imperfect
self-defense as a theory of voluntary manslaughter.
Id. at 9, 14. Those findings and recommendations are
currently pending before the district judge.
26, 2017, the Ninth Circuit denied petitioner's
application for authorization to file a second or successive
petition. ECF No. 85. The Ninth Circuit noted that this case
was still pending and transferred the application to this
court with a direction that it be processed as a motion to
amend the petition and that it should be deemed filed in this
court on September 16, 2016. Id. The Ninth Circuit
declined to express an opinion on whether the motion to amend
should be granted. Id. at 2.
proposed amended petition, although difficult to parse in
parts, appears to raise four new claims, namely: (1) the
prosecution violated Brady v. Maryland, 373 U.S. 83
(1963) when it failed to disclose the results of a swab test
of the victim's wound; (2) false evidence was presented
to the jury when they were “walked through” a
hole in the barrier surrounding the victim's encampment;
(3) the trial judge was biased against petitioner; and (4)
the prosecution knowingly presented false evidence to the
jury when it presented them with a firearm which petitioner
contends could not have been the murder weapon. ECF No. 87 at
responsive pleading has been filed in this case and,
accordingly, petitioner must obtain leave of court to file an
amended petition. See Anthony v. Cambra, 236 F.3d
568, 577 (9th Cir. 2000). Habeas petitions may be amended or
supplemented as provided in the Federal Rules of Civil
Procedure. See 28 U.S.C. § 2242;
Anthony, 236 F.3d at 576. And although Federal Rule
of Civil Procedure 15(a) requires that leave to amend
“shall be freely given when justice so requires,
” the court should also weigh whether there is any
evidence of undue delay, bad faith or dilatory motives with
respect to the filing of an amendment when determining
whether leave to amend should be granted. See
Anthony, 236 F.3d at 577-78.
most pertinent question before this court is whether any of
the newly proposed claims are timely. If they are not,
granting leave to amend would be futile. A federal habeas
petition must be filed within one year of: (1) the date the
state court judgment became final, either by conclusion of
direct review or the expiration of time to seek such review;
(2) the date on which an impediment to filing created by
state action is removed (if the applicant was prevented from
filing by that action); (3) the date on which a
constitutional right is newly recognized by the Supreme Court
and made retroactive on collateral review; or (4) the date on
which the factual predicate of the claim could have been
recognized through the exercise of due diligence.
See 28 U.S.C. § 2244(d). In most cases the
statute of limitations begins to run after the state court
judgment becomes final pursuant to 28 U.S.C. §
original petition filed with this court notes that the
underlying conviction occurred on June 29, 2010. ECF No. 1 at
28. Petitioner's conviction became final on forty days
after the Supreme Court denied his petition for review on
direct appeal on May 9, 2012. See Lodg. Doc. 8;
see also California Rules of Court 8.264, 8.500;
Smith v. Duncan, 297 F.3d 809, 813 (9th Cir. 2001).
His conviction was, therefore, finalized on June 18, 2012.
Petitioner's first habeas corpus petition was the
immediate one filed in this federal court on April 18, 2013.
ECF No. 1.
the claims in the motion to amend are timely.
Petitioner's September 16, 2016 motion to amend comes
more than three years after the original petition was filed
and more than four years after his conviction became final.
The one-year limitations period expired on August 7, 2013.
See ECF No. 36 at 10. Petitioner appears to argue
that he should be entitled to equitable tolling until June 7,
2013 - the date respondent lodged the relevant portions of
the state court record in conjunction with its answer. ECF
No. 86 at 6. Petitioner claims that he could not “study
the record of the court's actions” or prove his
claims until he received these documents. Id. at 4.
These claims would be untimely even if June 7, 2013 were the
first date on which the factual predicate of his new claims
could have been recognized, however. Finally, these claims
would be untimely even if plaintiff's previous amended
petitions (ECF Nos. 21 & 24) could be construed to
present them. Both of those amended petitions were struck
from the record (ECF No. 43) and petitioner may not rely on
the court must consider whether these claims relate back to
the original petition. The Ninth Circuit has held that
Federal Rule of Civil Procedure 15(c) applies to a
petitioner's attempt to amend his petition to add newly
exhausted claims. See Anthony, 236 F.3d at 576. The
claims may only relate back if respondent was on notice of
them before the statute of limitations period expired.
Id. at 576-77. The court finds that the claims
raised in the original petition could not have given the
respondent notice of the current claims before the
limitations period expired on August 7, 2013. The court
previously summarized the claims in the original petition as
In the federal habeas corpus petition filed on April 15,
2013, petitioner raised six separate claims for relief. ECF
No. 1 at 5. First petitioner asserts that the trial court
prejudicially erred in admitting prior bad act evidence from
1986 and 1994. Id. Secondly, petitioner alleges that
he received ineffective assistance of counsel without
identifying any specific acts or omissions that prejudiced
him. Id. Next petitioner contends that the Three
Strikes Law is a violation of the ex post facto clause.
Id. In his fourth claim for relief, petitioner
alleges that the trial court imposed an illegal enhancement
for elder abuse because the victim was suspected of fraud
against the federal government. Id. Petitioner also
contends that the police tampered with evidence. Id.
Because petitioner attached a copy of his opening brief on
direct appeal in the California Court of Appeal ...