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Romero v. Paramo

United States District Court, S.D. California

August 29, 2017





         Petitioner 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.


         On May 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.

         On June 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).

         On 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.

         On 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. Id.

         On 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 17.

         Respondent 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.


         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 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 original).


         Respondent 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 ...

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