United States District Court, S.D. California
ORDER: (1) DENYING MOTION TO AMEND [Doc. No. 76] AND
(2) REINSTATING STAY
CATHY ANN BENCIVENGO UNITED STATES DISTRICT JUDGE
21, 2016, Defendant/Petitioner filed a motion under 28 U.S.C.
§ 2255 to vacate, set aside, or correct a sentence.
[Doc. No. 65.] On July 1, 2016, this Court issued an order
staying the motion pending a decision by the Ninth Circuit in
14-10080, United States v. Begay. [Doc. No. 67.]
April 20, 2018, Defendant/Petitioner filed a motion to lift
the stay in light of the Supreme Court's decision in
Sessions v. Dimaya, __ S.Ct. __, 2018 WL 1800371
(U.S. Apr. 17, 2018). [97cr2546, Doc. No. 69.] On January 10,
2019, the Court denied the motion to lift the stay. [Doc. No.
18, 2019, the Ninth Circuit Court of Appeals issued an order
regarding an application for authorization to file a second
or successive 28 U.S.C. §2255 motion filed in Ninth
Circuit No. 18-71013. [Doc. No. 75.] The Ninth Circuit denied
the motion as unnecessary because the applicant (Petitioner
Reginald Owen) already has a section 2255 motion pending in
this Court. Id. The Ninth Circuit further ordered
the proposed section 2255 motion be filed in this action as a
motion to amend the currently pending 2255 motion.
Id. That motion to amend is now filed in this action
as docket no. 76.
August 6, 2019, this Court issued an order lifting the stay
to address the motion to amend, and set a briefing schedule.
[Doc. No. 77.] On August 23, 2019, Respondent filed an
opposition to the motion to amend. [Doc. No. 78.] No reply
has been filed. For the reasons set forth below, the motion
to amend is DENIED.
of the Rules Governing Section 2255 Motions provides that the
Federal Rules of Civil Procedure may be applied to §
2255 motions when appropriate. See also Anthony v.
Cambra, 236 F.3d 568, 576 (9th Cir. 2000). Under Federal
Rule of Civil Procedure 15(a), one seeking collateral relief
may amend his pleadings once as a matter of course before a
responsive pleading is served and may seek leave of court to
amend his pleading at any time during the pendency of the
proceeding. See Mayle v. Felix, 545 U.S. 644, 654
(2005); see also In re Morris, 363 F.3d 891, 893
(9th Cir. 2004) (Rule 15(a) applies to habeas actions with
the same force that it applies to other civil cases).
Although leave to amend should be given freely, a court may
deny a motion to amend if the motion is made in bad faith,
there would be prejudice to the opposing party, the amendment
would be futile or would delay resolution of the action, or
if the party acted in a dilatory fashion in seeking leave to
amend. Foman v. Davis, 371 U.S. 178, 182 (1962).
the proposed amendment would be futile because it is
untimely. Petitioner's motion to amend seeks to add
“whether the district court felt its hands were tied in
fashioning a sentence for the underlying offense and the
924(c) while still abiding by the Statute requiring the
sentence to be run consecutive.” [Doc. No. 76 at 3.]
Ordinarily, a “1-year period of limitation”
applies to habeas petitions challenging a sentence. 28 U.S.C.
§ 2255(f). The limitations period typically begins to
run from “the date on which the judgment of conviction
becomes final” (in this case 1999). 28 U.S.C. §
2255(f)(1). But if the “right asserted” in the
petition was “newly recognized” by the Supreme
Court and is made retroactively applicable to cases on
collateral review, a petitioner may file within one year of
the date that the “right asserted” was newly
recognized by the Supreme Court. 28 U.S.C. § 2255(f)(3).
cites Dean v. United States, 137 S.Ct. 1170 (2017)
in support of this amendment, presumably asserting that he is
filing within one year of Dean. [Doc. No. 76 at 3.]
However, Dean did not establish a retroactively
applicable constitutional rule. See Garcia v. United
States, 923 F.3d 1242, 1245-46 (9th Cir. 2019)(“
Dean's rule was statutory, not constitutional,
and the Supreme Court has not made it retroactive to cases on
collateral review”). Because Petitioner's proposed
amendment is untimely under 28 U.S.C. § 2255(f)(1), and
because Dean is inapplicable, any amendment would be
futile. Therefore, the motion to amend is
reasons set forth above, the motion to amend is DENIED and
the STAY is REINSTATED. Counsel for Petitioner shall notify
this Court within 5 days of the Ninth Circuit's final
decision in Begay.