United States District Court, D. Nevada
capital habeas corpus action was stayed on October 17, 2008,
pending the petitioner's exhaustion of claims in state
court. See Order entered October 17, 2008 (ECF No.
January 11, 2017, petitioner filed a Motion to Temporarily
Lift the Stay to Supplement the First Amended Petition (ECF
No. 78), and a Motion to Continue the Stay (ECF No. 80).
Respondents filed oppositions to both motions (ECF Nos. 82,
83), and petitioner filed replies (ECF No. 84, 85).
motion to temporarily lift the stay to supplement his
petition, petitioner requests 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 in the form of a supplement to his petition (ECF No.
79). Petitioner states that the state-court habeas action
that he initiated on September 10, 2008, was completed on
December 16, 2016, when the Nevada Supreme Court issued its
remittitur after affirming the dismissal of that action.
See Motion to Continue the Stay (ECF No. 80), p. 2.
Petitioner states, further, that on January 6, 2017, he
filed, in the state district court, a new petition for writ
of habeas corpus, asserting a claim based on Hurst.
See id. at 2; see also Exhibit 1 to Motion
to Continue the Stay (ECF No. 81-1). Petitioner asks in his
motion to continue the stay that the stay of this action
remain in place pending the conclusion of his new state-court
habeas action, in which he asserts the Hurst claim.
contend that petitioner has mischaracterized the addition of
the Hurst claim as a supplement, rather than 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 involves undue
delay, bad faith, or dilatory motive, or that they would be
unduly prejudiced by the addition of the claim. Furthermore,
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 resolution
of these motions 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. 1995). The Court will, therefore,
grant petitioner's motion to temporarily lift the stay to
supplement his petition.
requests waiver of 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
interests of judicial economy and 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 new claim.
Court will also grant petitioner's motion to continue the
stay that is currently in place in this action. When this
action was stayed, the Court stated:
The court's intention is that this will be the last time
that the court imposes a stay to facilitate petitioner's
exhaustion of claims in state court. Petitioner must exhaust
all of his unexhausted claims in state court during
the stay of this action imposed pursuant to this order.
entered October 17, 2008 (ECF No. 52), p. 6 (emphasis in
original). Under the circumstances, with the case stayed for
exhaustion of all petitioner's claims in state court,
with petitioner's new state habeas action asserting a
Hurst claim under way, and in the interests of
federal-state comity, judicial economy, and conservation of
the parties' resources, the Court determines that the
better approach is to leave the stay of this action in place
pending the completion of the state-court action initiated by
petitioner on January 6, 2017. The Court will, therefore,
exercise its discretion to continue the stay.
in this order 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 of
petitioner's new claim in any other context.
THEREFORE HEREBY ORDERED that petitioner's Motion to
Temporarily Lift the Stay to Supplement the First Amended
Petition (ECF No. 78) 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 First Amended Petition for
Writ of Habeas Corpus (ECF No. 79). 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 petitioner's Motion to Continue the
Stay (ECF No. 80) is GRANTED. The stay of this action imposed
in the order entered October 17, 2008 (ECF No. 52) shall
remain in place. Petitioner shall continue to file status
reports, and shall move to lift the stay upon the completion
of his state-court proceedings, as directed in the order
entered October 17, 2008 (ECF No. 52).
FURTHER ORDERED that, pursuant to Federal Rule of Civil
Procedure 25(d), the Clerk of the Court shall, on the docket
for this case, substitute Timothy Filson for Renee Baker as
the respondent warden, and Adam Paul Laxalt for Catherine
Cortez Masto as the respondent Attorney General of the ...