United States District Court, D. Nevada
MIRANDA M. DU, UNITED STATES DISTRICT JUDGE
December 28, 2016, this Court entered a scheduling order that
allowed petitioner Leonard sixty (60) days within which to
file an amended petition. (ECF No. 120.) Within that 60-day
period, Leonard filed, in succession, a motion for leave to
supplement petition for writ of habeas corpus (ECF No. 121),
a motion to re-impose stay (ECF No. 124), and a motion for
extension of time to file first amended petition pending
resolution of motion to re-impose stay (ECF No. 127). This
order decides all three motions.
MOTION FOR LEAVE TO SUPPLEMENT
his motion for leave to supplement, Leonard asks to amend his
existing petition (Dkt. No. 1.) to include a claim that his death
penalty is unconstitutional because the trial court was
required to give the jury a clear instruction that, in order
to find him eligible for the death penalty, it must conclude
that there are insufficient mitigating circumstances to
outweigh the aggravating circumstances beyond a
reasonable doubt. (ECF No. 122.) Leonard premises this
claim on Hurst v. Florida, 136 S.Ct. 616 (2016),
which was decided January 12, 2016. He represents to the
Court that, rather than include his Hurst claim in
his forthcoming amended petition, he seeks leave to amend his
existing petition in order to present the claim within one
year of the date on which a “constitutional right was
initially recognized by the Supreme Court.” 28 U.S.C.
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
was decided January 12, 2016. Leonard's request to add a
claim based on Hurst within the following year does
not involve undue delay, bad faith, or dilatory motive, nor
does it unduly prejudice the respondents.
while there appear to be serious questions regarding the
merits of Leonard's Hurst-based claim, the Court
determines - for purposes of the motion to supplement only -
that there is no showing that addition of the 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)).
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. Because Leonard will be filing an
amended petition, the Court will waive the requirements of
Local Rule 15-1.
in this order granting Leonard'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 of
the new claim in any other context.
MOTION TO RE-IMPOSE STAY
his motion to re-impose stay, Leonard asks the Court to stay
further proceedings in this case until he completes state
court litigation of his Hurst claim. Leonard
represents to this Court that, on January 9, 2017, he mailed
for filing a state petition raising his Hurst issue
in the First Judicial District Court for Carson City, Nevada.
Rhines v. Weber, 544 U.S. 269 (2005), the stay and
abeyance procedure was condoned by the Court as a means by
which a habeas petitioner with a mixed petition subject to
dismissal under Rose v. Lundy, 455 U.S. 509 (1982),
could fully exhaust his petition without the risk of running
afoul of the 1-year statutory time limit for filing federal
petitions. Rhines, 544 U.S. at 276. The Court in
Rhines cautioned, however, that stay and abeyance,
if too frequently used, would undermine AEDPA's goals of
prompt resolution of claims and deference to state court
rulings. Id. Thus, the Court held that, in order to
obtain “stay and abeyance, ” a petitioner must
show: 1) good cause for the failure to exhaust claims in
state court; 2) that unexhausted claims are potentially
meritorious; and 3) the absence of abusive tactics or
intentional delay. Id.; Jackson v. Roe, 425
F.3d 654, 662 (9th Cir. 2005). For the reasons
that follow, this Court concludes that Leonard's Hurst
claim is not potentially meritorious and, on that basis, will
deny his request for a Rhines stay.
Hurst, the Court held that Florida's capital
sentencing scheme violated the Sixth Amendment right to a
jury trial because, under the scheme, the jury rendered an
advisory verdict but the judge ultimately found the facts
necessary to impose a sentence of death. 136 S.Ct. at 624. In
reaching that holding, the Court relied upon Ring v.
Arizona, 536 U.S. 584 (2002), which held that any fact
necessary for the imposition of the death penalty must be
found by a jury, not a judge. 536 U.S. at 589. Ring
and Hurst are both based on Apprendi v. New
Jersey, 530 U.S. 466 (200), which held that any fact
that “expose[s] the defendant to a greater punishment
than that authorized by the jury's guilty verdict”
is an “element” that must be submitted to a jury.
530 U.S. at 494.
a jury imposed the death penalty in Leonard's case, he
claims that his death sentence is nonetheless
unconstitutional under Hurst because the jury was
not instructed that it must find beyond a reasonable doubt
that there are no mitigating circumstances sufficient to
outweigh the aggravating circumstances. Leonard reasons that,
under Hurst, the weighing of aggravating and
mitigating factors is an “element” that must be
submitted to the jury and, ...