United States District Court, D. Nevada
R. HICKS UNITED STATES DISTRICT JUDGE
capital habeas corpus action, there are, pending, a motion to
dismiss filed by respondents (ECF No. 107) and a motion for
evidentiary hearing filed by the petitioner, Fernando Navarro
Hernandez (ECF No. 118).
addition, on January 11, 2017, Hernandez filed a motion for
leave to supplement his third amended petition (ECF No. 133),
and on February 15, 2017, Hernandez filed a motion for stay
and abeyance (ECF No. 145).
motion for leave to supplement, Hernandez requests that he be
granted leave of court to add two new claims based on
Hurst v. Florida, 136 S.Ct. 616 (2016). Respondents
filed an opposition to that motion on February 1, 2017 (ECF
No. 140), and Hernandez filed a reply on February 15, 2017
(ECF No. 144). The motion will be granted.
contend that Hernandez has mischaracterized the addition of
the Hurst claims as a supplement, rather than as an
amendment. See Fed. R. Civ. P. 15. For purposes of
this motion, the distinction is immaterial. 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; see also Rule
12, Rules Governing Section 2254 Cases (Rules of Civil
Procedure apply to federal habeas proceedings “to the
extent that they are not inconsistent.”). Federal Rule
of Civil Procedure 15(a) permits a party to amend a pleading
with the opposing party's written consent or the
court's leave. See Fed. R. Civ. P. 15(a)(2).
“The court should freely give leave when justice so
requires.” Id. “Courts may decline to
grant leave to amend only if there is strong evidence of
‘undue delay, bad faith or dilatory motive on the part
of the movant, repeated failure to cure deficiencies by
amendments previously allowed, undue prejudice to the
opposing party by virtue of allowance of the amendment, [or]
futility of amendment, etc.'” Sonoma County.
Ass'n of Retired Employees v. Sonoma County, 708
F.3d 1109, 1117 (9th Cir. 2013) (quoting Foman v.
Davis, 371 U.S. 178, 182 (1962)). “[T]he
consideration of prejudice to the opposing party carries the
greatest weight.” Eminence Capital, LLC v. Aspeon,
Inc., 316 F.3d 1048, 1052 (9th Cir. 2003).
was decided January 12, 2016. Respondents do not show that
Hernandez's request to add claims based on Hurst
within the following year involved undue delay, bad faith, or
dilatory motive, or that they would be unduly prejudiced by
the addition of such claims.
while there appear to be serious questions regarding the
retroactivity of Hurst, and its application in this
case, the court determines -- for purposes of the motion to
supplement only -- that there is no showing that addition of
the Hurst claims would be futile. “[P]roposed
amendments [are futile when they] are either duplicative of
existing claims or patently frivolous.” Murray v.
Schriro, 745 F.3d 984, 1015 (9th Cir. 2014), quoting
Bonin v. Calderon, 59 F.3d 815, 846 (9th Cir.1995).
the court will grant Hernandez's motion to supplement,
and will allow Hernandez to add his new Claims 28 and 29 to
his petition. Hernandez has presented his new claims in a
document entitled “Supplement to Third Amended Petition
for Writ of Habeas Corpus” (ECF No. 134). See
also Exhibit 250, filed with the Motion for Leave to
Supplement the Third Amended Petition (ECF No. 133-1). The
court will require Hernandez to file a fourth amended
petition, including his two new claims. The addition of the
new claims to Hernandez's petition should be purely a
clerical matter, and it should not require significant time
or resources. The court determines that, at this point in
this action, doing so will create a better record going
forward, with Hernandez's entire petition in one
court will deny as moot, and without prejudice, the pending
motion to dismiss, as well as Hernandez's motion for
evidentiary hearing. The court recognizes that, when
appropriate, there will likely be a motion to dismiss
Hernandez's fourth amended petition, and, to a great
extent, that motion will duplicate background information and
argument in the motion to dismiss the third amended petition,
but the reiteration of material in the parties' briefing
of a new motion to dismiss should be largely a clerical
matter, and should not require significant time or resources.
The court will not, however, entertain the anticipated motion
to dismiss the fourth amended petition until the motion for
stay is resolved.
court will set an extended schedule for further briefing of
the motion for stay, recognizing that the resolution of that
motion for stay will likely turn on the issues whether there
was good cause for Hernandez's failure to previously
exhaust his Hurst claims in state court, and whether
those claims are plainly meritless. See Rhines v.
Weber, 544 U.S. 269, 277 (2005).
in this order, granting Hernandez's motion for leave to
supplement, will have any bearing on any issue raised by the
motion for stay, or on any other procedural issue in this
case; nor will any aspect of this order have any bearing on
the court's consideration of the merits Hernandez's
new claims in any other context.
IS THEREFORE HEREBY ORDERED that petitioner's
Motion for Leave to Supplement the Third Amended Petition
(ECF No. 133) is GRANTED. Petitioner shall
have 10 days from the date of this order to
file a fourth amended petition for writ of habeas corpus,
including his new Claims 28 and 29, which are set forth in
the Supplement to Third Amended Petition for Writ of Habeas
Corpus (ECF No. 134).
IS FURTHER ORDERED that respondents shall have
30 days from the date of this order to file
a response to petitioner's motion for stay. Thereafter,
petitioner shall have 30 days to file a
reply in support of his motion for stay. The court will not
look favorably upon any motion to extend this schedule.
IS FURTHER ORDERED that respondents' Motion to
Dismiss (ECF No. 107) ...