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Leonard v. Filson

United States District Court, D. Nevada

August 18, 2017

TIMOTHY FILSON, et al., Respondents.



         On 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.


         With his motion for leave to supplement, Leonard asks to amend his existing petition (Dkt. No. 1.)[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. § 2244(d)(1)(c).

         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).

         Hurst 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.

         Furthermore, 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)).

         Leonard 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.

         Nothing 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.


         With 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.

         In 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.

         In 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.

         Although 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, ...

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