United States District Court, S.D. California
ORDER GRANTING PETITIONER'S MOTION FOR LEAVE TO
FILE AMENDED PETITION [DKT. NO. 55]
GONZALO P. CURIEL UNITED STATES DISTRICT JUDGE.
William Vincent Romero, proceeding pro se, filed a
motion for leave to file an Amended Petition for Writ of
Habeas Corpus. In it, he asks the Court to add five
newly-exhausted claims to his original petition which
contained a single habeas claim. Based on the reasoning
below, the Court GRANTS the motion for leave
to file an amended petition.
20, 2014, Petitioner William Vincent Romero
(“Petitioner”), proceeding pro se and
in forma pauperis, filed his Petition for Writ of
Habeas Corpus (“Petition”) in federal court. Dkt.
No. 1. The original Petition challenges Petitioner's
second degree murder conviction as being based upon
“insufficient evidence to support implied
malice.” Id. at 6. There has never been any
dispute that this original habeas claim was exhausted in
state courts. See Dkt. No. 45 at 1.
14, 2014, Petitioner filed a motion to stay and abey the
federal proceedings while Petitioner exhausted new claims in
state court. Dkt. No. 14. While that motion was still pending
before the district court, but after U.S. Magistrate Judge
Barbara Major issued a Report and Recommendation denying
Petitioner's request for stay, Petitioner filed a request
for an extension of time to object to the Report and
Recommendation. Dkt. No. 40. In the request, Petitioner
explained that he was currently litigating his habeas case in
state court and that he had an evidentiary hearing scheduled
in the near future. Id. at 3. Upon consideration of
the new information provided by Petitioner, the Magistrate
Judge altered her Report and Recommendation and concluded
that Petitioner's request for stay should be granted
under Kelly v. Small, 315 F.3d 1063 (9th Cir. 2003).
August 5, 2015, this Court stayed Petitioner's case
pursuant to Kelly v. Small. Dkt. No. 45. A stay
under Kelly requires a Petitioner to comply with a
three-step procedure. Under Kelly, a district court
may allow a petitioner to: (1) delete unexhausted claims from
a mixed habeas petition - that is a habeas petition with
exhausted and unexhausted claims; (2) seek state court
remedies for the unexhausted claims while the district court
stays the fully exhausted petition; and (3) add newly
exhausted claims back onto the federal petition once state
courts have had a chance to rule on them. King v.
Ryan, 564 F.3d 1133, 1135 (9th Cir. 2009). In the August
5, 2015 order, the Court indicated that Petitioner could
continue to litigate his claims pending in state court and
that he could move to amend the claims after he exhausted
them. The Court warned Petitioner, however, that any amended
claim must “relate back” to the exhausted claims
in the original habeas petition. Id. at 1140-41.
Feburary 2, 2017, this Court issued an order to show because
why Petitioner's case should not be dismissed for failure
to amend. Dkt. No. 53. In it, the Court observed that
publicly available information indicated that the California
Supreme Court had denied Petitioner a habeas petition on
February 18, 2016 and on August 10, 2016. Id.
Accordingly, and since Petitioner had yet to file an amended
petition, the Court ordered Petitioner to show cause, by
March 2, 2017, why he had yet to amend his habeas petition.
March 9, 2017, nunc pro tunc March 3, 2017,
Petitioner filed a motion to amend his habeas petition. Dkt.
No. 55. In it, he moved to add five grounds to his original
exhausted habeas petition. Specifically, he moved to amend
the following claims: (a) Ineffective assistance of counsel,
“failure to investigate”; (b) Procedural error,
“speedy trial rights”; (c) Structural error,
“due process rights”; (d) Ineffective assistance
of counsel, “right to testify” and “failure
to inform”; and (e) actual innocence. Id. at
filed an opposition on April 12, 2017. Respondent argues that
the Court should not grant Petitioner leave to amend because
his five new claims do not relate back under AEDPA or, in the
alternative, that they are procedurally barred. Id.
Petitioner filed a reply on May 1, 2017. Dkt. No. 60.
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 the
proceeding. See Foman v. Davis, 371 U.S. 178, 182
(1962); Nunes, 375 F.3d at 808. Futility alone is a
sufficient basis for denying a motion to amend. Novak v.
United States, 795 F.3d 1012, 1020 (9th Cir. 2015).
“Absent prejudice, or a strong showing of any of the
remaining Foman factors[, ]” however,
“there exists a presumption under Rule 15(a)
in favor of granting leave to amend.”) (emphasis in
argues that amendment is inappropriate because
Petitioner's amended claims are futile. Dkt. No. 58.
Specifically, Respondent argues that amendment would be
futile because Petitioner's amended claims do not relate
back to the original exhausted claim and because, timeliness