United States District Court, E.D. California
KENDALL J. NEWMAN, UNITED STATES MAGISTRATE JUDGE
proceeding is currently stayed pending resolution of
petitioner's state exhaustion petition. Petitioner moves
to temporarily lift the stay for the purpose of amending his
federal petition. For the reasons set forth below, this court
grants petitioner's motion.
action is proceeding on the original petition filed January
12, 2015. (ECF No. 45.) On June 4, 2016, petitioner filed a
second state habeas petition raising unexhausted claims.
In re Kennedy, No. S235415. On April 19, 2016, the
district court granted petitioner's request to stay these
proceedings pending the state court's resolution of his
habeas petition. (ECF No. 83.) The California Supreme Court
has not resolved the state petition.
13, 2016, petitioner filed a request to temporarily lift the
stay to identify potentially unexhausted facts and/or claims.
On June 3, 2016, the undersigned granted the request and
found that petitioner should present the newly-identified
evidence to the California Supreme Court. (ECF No. 88.) On
March 6, 2017, petitioner filed the present motion in this
court to again lift the stay temporarily and for permission
to amend the petition with newly-discovered claims and/or
facts of prosecutorial misconduct and ineffective assistance
of trial and state habeas counsel. (ECF No. 91.) Respondent
opposes the motion. (ECF No. 92.) Petitioner filed a reply.
(ECF No. 93.)
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; see
also Rule 12, Rules Governing § 2254 Cases (Federal
Rules of Civil Procedure are applicable to federal habeas
proceedings “to the extent that they are not
inconsistent.”) Federal Rule of Civil Procedure 15(a)
permits a party to amend its pleading “once as a matter
of course” either 21 days after service or, if the
pleading is “one to which a responsive pleading is
required, 21 days after service of the responsive pleading .
. . . [¶] In all other cases, a party may amend its
pleading only with the opposing party's written consent
or the court's leave. The court should freely give leave
when justice so requires.” Id.
is not a perfect fit in a federal capital habeas case because
a responsive pleading must be ordered by the court and may be
filed a great deal of time after the filing of the petition,
as will be true in the present case. See Rule 5(a),
Rules Governing § 2254 Cases. However, the Ninth Circuit
Court of Appeals has looked to Rule 15's standards, and
the cases interpreting them, when determining the propriety
of a request to amend a capital habeas petition. See In
re Morris, 363 F.3d 891 (9th Cir. 2004). The court in
Morris described the appropriate considerations:
Under Rule 15(a), leave to amend “shall be freely given
when justice so requires.” Fed.R.Civ.P. 15(a). We have
held that leave to amend, although within the discretion of
the trial court, “should be guided by the underlying
purpose of Rule 15(a) . . . which was to facilitate decisions
on the merits, rather than on technicalities or
pleadings.” James v. Pliler, 269 F.3d 1124,
1126 (9th Cir. 2001). A district court may, however, take
into consideration such factors as “bad faith, undue
delay, prejudice to the opposing party, futility of the
amendment, and whether the party has previously amended his
pleadings.” Bonin v. Calderon, 59 F.3d 815,
845 (9th Cir. 1995).
Id. at 894. The “crucial factor” in
determining the propriety of a motion to amend is “the
resulting prejudice to the opposing party.” Howey
v. United States, 481 F.2d 1187, 1190 (9th Cir. 1973).
The court in Howey further noted that denying leave
to amend would be an abuse of discretion “[w]here there
is a lack of prejudice to the opposing party and the amended
complaint is obviously not frivolous, or made as a dilatory
maneuver in bad faith.” Id. at 1190-91.
asserts that the court should deny petitioner's request
because petitioner was previously granted leave to present
only two items of evidence to the state court: letters
showing that Ron Woods may have received an alleged benefit
as a result of testifying, and documentation that Doreen
Westbrook was married to Jimmie Westbrook at the time of
trial. Respondent argues that petitioner now attempts to add
new subclaims to existing claims, as well as add a new
ineffective assistance of state habeas counsel claim.
Respondent also contends the court should reject the motion
to amend because petitioner failed to present these claims in
the manner required by Local Rule 137(c) (amended complaint
must be appended to motion). Respondent argues that the new
claims petitioner seeks to add are not subject to a stay
under Rhines v. Weber, 544 U.S. 269, 277-78 (2005),
absent a showing of good cause, and are untimely absent a
showing that the new claims relate back to the same conduct
transaction or occurrence in the original petition, as
required under Mayle v. Felix, 545 U.S. 644 (2005).
(ECF No. 92 at 5.)
noted by petitioner in his reply, respondent does not argue
petitioner is acting in bad faith or otherwise attempting to
delay these proceedings. More importantly, ...