United States District Court, D. Nevada
MIRANDA M. DU, District Judge.
This is a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 in which petitioner, a state prisoner, is proceeding pro se. Before the Court are petitioner's combined motion for a stay of proceedings and motion to amend (dkt. nos. 22 & 23), and petitioner's motion for release of seized property (dkt no. 31).
I. PROCEDURAL BACKGROUND
Petitioner dispatched his federal habeas petition to this Court on June 8, 2012. (Dkt. no. 6). Ground 1 of the petition raises several claims of ineffective assistance of trial counsel. Ground 2 raises several claims of ineffective assistance of appellate counsel. Ground 3 raises several instances of prosecutorial misconduct. Ground 4 alleges that petitioner's conviction and sentence are unconstitutional because the trial court abused its discretion in determining pretrial writs and motions. Ground 5 contains assorted arguments, including a purported claim under Martinez v. Ryan, 132 S.Ct. 1309 (2012), as well as a claim of actual innocence. (Dkt. no. 6.) Respondents moved to dismiss Grounds 3 and 4 of the petition as procedurally barred, and Ground 5 as unexhausted and not otherwise cognizable. (Dkt. no. 8.) By order filed July 23, 2013, this Court granted respondents' motion to dismiss. (Dkt. no. 21.) Grounds 3 and 4 of the petition were dismissed with prejudice as procedurally barred, and Ground 5 was dismissed with prejudice as not cognizable. ( Id. ) The Court allowed Grounds 1 and 2, alleging ineffective assistance of trial and appellate counsel, to proceed. ( Id. ) The Court ordered respondents to file an answer to Grounds 1 and 2 of the petition within 45 days. ( Id. )
On July 31, 2013, petitioner filed a combined motion for stay and motion for leave to amend the petition. (Dkt. nos. 22 & 23.) Respondents opposed the motion. (Dkt. no. 24.) Petitioner filed a reply. (Dkt. no. 26.) On August 22, 2013, the Court granted respondents' motion to continue briefing until the Court rules on petitioner's motion to amend the petition. (Dkt. no. 28.) On September 11, 2013, petitioner filed an amended petition. (Dkt. no. 29.)
On January 10, 2014, petitioner filed a motion for the release of seized property. (Dkt. no. 31.) Respondents opposed petitioner's motion. (Dkt. no. 34.)
A. Petitioner's Combined Motion for Stay and Motion to Amend
Initially, the Court observes that petitioner's motion for a stay (dkt. no. 22) and motion to amend (dkt. no. 23) are identical documents, entitled "Consolidated Motions for Stay of Proceedings and Motion for Leave of Court to Amend 28 U.S.C. 2254 Petition." This document was filed by the Clerk as two motions. (Dkt. nos. 22 & 23.) The Court further observes that the request for a stay appears only in the caption of the motion, and petitioner makes no argument for a stay of proceedings. As such, the Court denies the request for a stay of proceedings. Instead, the Court focuses on petitioner's arguments for leave to amend the petition.
Rule 15(a)(1) of the Federal Rules of Civil Procedure provides: "A party may amend his pleading once as a matter of course within: (A) 21 days after serving it, or (B) if the pleading is one to which a responsive pleading is required, 21 days after service of a responsive pleading or 21 days after service of a motion under Rule 12(b), (e), or (f), whichever is earlier." Rule 15(a)(2) provides that: "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."
The court may consider "bad faith, undue delay, prejudice to the opposing party, futility of the amendment, and whether the party has previously amended his pleadings" though each factor is not necessarily given equal weight. Bonin v. Calderon, 59 F.3d 815, 844-45 (9th Cir. 1995); Foman v. Davis, 371 U.S. 178, 182 (1962) (the court may consider whether there is evidence of "undue delay, bad faith or dilatory motive" as to whether the motion to amend should be granted); Saul v. United States, 928 F.2d 829, 843 (9th Cir. 1991) (leave to amend may be denied if the proposed amendment is futile or would be subject to dismissal). A district court may deny a motion to amend where the movant presents no new facts, only new theories, with no satisfactory explanation for the failure to fully develop the contentions in the first place. Bonin, 59 F.3d at 844-45.
In this case, petitioner seeks to amend his petition to include the following claims, which appear as Grounds 3, 4, 5, and 6 of the amended petition: (1) petitioner's rights to due process, equal protection, and a fair trial were violated when the trial court erred when, after granting in part the defense's petition for writ of habeas corpus, amended the wording of the possession of stolen property count; (2) petitioner's rights to due process, equal protection, and a fair trial were violated by the State's failure to preserve exculpatory evidence (wire); (3) there was insufficient evidence to sustain his conviction; and (4) based on facts of the case, petitioner's sentence constituted cruel and unusual punishment. (Motion, at dkt. no. 23; Amended Petition, at dkt. no. 29.)
Respondents argue that the claims that petitioner seeks to add in the amended petition do not relate back to the original petition, and are thus untimely. The Antiterrorism and Effective Death Penalty Act (AEDPA) amended the statutes controlling federal habeas corpus practice to include a one-year statute of limitations on the filing of federal habeas corpus petitions. With respect to the statute of limitations, the habeas corpus statute provides:
(d)(1) A 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court. The ...