United States District Court, D. Nevada
capital habeas corpus action was stayed on February 1, 2013,
pending the petitioner's exhaustion of claims in state
court. See Order entered February 1, 2013 (ECF No.
53). Petitioner's state-court litigation has not yet been
completed. See Status Report filed December 15, 2016
(ECF No. 65).
January 11, 2017, petitioner filed a Motion to Temporarily
Lift Stay to Supplement Second Amended Petition for Writ of
Habeas Corpus (ECF No. 67). In that motion, petitioner
requests that he be granted leave of court to add to his
petition a claim based on Hurst v. Florida, 136
S.Ct. 616 (2016). Petitioner filed the proposed additional
claim as a supplement to his second amended petition (ECF No.
69). Respondents filed an opposition to petitioner's
motion on January 12, 2017 (ECF No. 70). Petitioner replied
on January 23, 2017 (ECF No. 71).
contend that petitioner has mischaracterized the addition of
the Hurst claim 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
petitioner's request to add a claim 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 claim 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.
requests that the court waive the requirements of LR 15-1,
which generally requires that a complete proposed amended
petition be attached to a motion to amend, and that, after a
motion to amend is granted, the petitioner is to file the
complete amended petition. Under the circumstances here, in
the interest of judicial economy and in the interest of
conserving the parties' resources, the court will waive
the requirements of Local Rule 15-1. After the completion of
his pending state-court proceedings, and if and when the stay
of this action is permanently lifted, the court will require
petitioner to file an amended habeas petition, including the
in this order, granting petitioner's motion for leave to
supplement, will have any bearing 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
petitioner's new claim in any other context.
THEREFORE HEREBY ORDERED that petitioner's Motion to
Temporarily Lift Stay to Supplement Second Amended Petition
for Writ of Habeas Corpus (ECF No. 67) is GRANTED.
FURTHER ORDERED that petitioner is granted leave of court to
add to his habeas corpus petition in this action the claim
set forth in his Supplement to Second Amended Petition for
Writ of Habeas Corpus (ECF No. 69). That claim will be
considered added to the habeas corpus petition in this
action. The court will not, at this time, require petitioner
to file an amended habeas petition, including his new claim.
After completion of his state-court proceedings, and if and
when the stay of this action is permanently lifted, the court
will require petitioner to file an amended habeas petition
including this new claim.
FURTHER ORDERED that, in all other respects, the stay of this
action shall remain in effect.
FURTHER ORDERED that, pursuant to Federal Rule of Civil
Procedure 25(d), the Clerk of the Court shall substitute
Timothy Filson for Renee Baker, on the docket for this case,
as the respondent warden, and ...