United States District Court, D. Nevada
RICHARD F. BOULWARE, II UNITED STATES DISTRICT JUDGE.
habeas corpus action, brought pursuant to 28 U.S.C. §
2254 by Omar Ayala, a Nevada prisoner, the Court appointed
counsel for Ayala. See Order entered August 7, 2017
(ECF No. 4). Counsel -- the Federal Pubic Defender for the
District of Nevada (FPD) -- appeared for Ayala on September
6, 2017 (ECF No. 7). The respondents have also appeared (ECF
September 15, 2017, the FPD filed a first amended petition
for writ of habeas corpus on Ayala's behalf (ECF No. 8).
However, on that same day, along with the first amended
petition, the FPD also filed, for Ayala, a motion for leave
to file a second amended petition (ECF No. 19). In the motion
for leave to amend, the FPD explains that they filed
Ayala's first amended petition shortly after their
appointment in order to preserve claims from being barred by
the statute of limitations; counsel believe that the
applicable limitations period ran out on September 18, 2017.
See Motion for Leave to File Second Amended Petition
(ECF No. 19). The FPD, therefore, request leave to file a
second amended petition in order to more properly plead
Ayala's claims. See id. Respondents are not
opposed to Ayala's motion for leave to file a second
amended petition. See Response to Motion for Leave
to File Second Amended Petition (ECF No. 20).
petition for 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. A petitioner
may amend his habeas petition at any time with leave of
court. See Fed. R. Civ. P. 15(2). “The court
should freely give leave when justice so requires.”
Id. Whether to grant leave to amend rests in the
sound discretion of the trial court. See Bonin v.
Calderon, 59 F.3d 815, 845 (9th Cir. 1995) (citing
Outdoor Sys., Inc. v. City of Mesa, 997 F.2d 604,
614 (9th Cir. 1993)). “In exercising its discretion
‘a court must be guided by the underlying purpose of
Rule 15 -- to facilitate decision on the merits rather than
on the pleadings or technicalities.'” DCD
Programs, Ltd. v. Leighton, 833 F.2d 183, 186 (9th Cir.
1987) (quoting United States v. Webb, 655 F.2d 977,
979 (9th Cir. 1981)). Courts commonly consider four factors
-- the so-called Foman factors -- when determining
whether to grant leave to amend: (1) bad faith on the part of
the movant; (2) undue delay; (3) prejudice to the opposing
party; and (4) futility of the proposed amendment. See
Foman v. Davis, 371 U.S. 178, 182 (1962); Lockheed
Martin Corp. v. Network Solutions, Inc., 194 F.3d 980,
986 (9th Cir. 1999). Prejudice to the opposing party is the
most important of these factors. See Jackson v. Bank of
Hawaii, 902 F.2d 1385, 1387 (9th Cir. 1990). “The
party opposing amendment bears the burden of showing
prejudice.” DCD Programs, Ltd., 833 F.2d at
187. Under the circumstances in this case, there is plainly
no indication of bad faith or undue delay on the part of
Ayala, there is no indication that amendment would be futile,
and there will be no prejudice to respondents if Ayala files
a second amended petition. The Court will grant the motion
for leave to file a second amended petition, and will set a
schedule for further proceedings in this action.
IS THEREFORE ORDERED that petitioner's Motion
for Leave to File Second Amended Petition (ECF No. 19) is
IS FURTHER ORDERED that the following schedule shall
apply to further proceedings in this case:
Amended Petition. Petitioner shall file a second amended
petition for writ of habeas corpus within 90 days from the
date of this order.
to Petition. Respondents shall have 60 days, after the
second amended petition is filed, to file and serve an answer
or other response to the second amended petition.
Petitioner shall have 45 days following service of an answer
to file and serve a reply. Respondents shall thereafter have
30 days following service of a reply to file and serve a
response to the reply.
of Motion to Dismiss. If respondents file a motion to
dismiss, petitioner shall have 60 days following service of
the motion to file and serve a response to the motion.
Respondents shall thereafter have 30 days following service
of the response to file and serve a reply.
If petitioner wishes to move for leave to conduct discovery,
petitioner shall file and serve such motion concurrently
with, but separate from, the response to respondents'
motion to dismiss or the reply to respondents' answer.
Any motion for leave to conduct discovery filed by petitioner
before that time may be considered premature, and may be
denied, without prejudice, on that basis. Respondents shall
file and serve a response to any such motion concurrently
with, but separate from, their reply in support of their
motion to dismiss or their response to petitioner's
reply. Thereafter, petitioner shall have 20 days to file and
serve a reply in support of the motion for leave to conduct
Hearing. If petitioner wishes to request an evidentiary
hearing, petitioner shall file and serve a motion for an
evidentiary hearing concurrently with, but separate from, the
response to respondents' motion to dismiss or the reply
to respondents' answer. Any motion for an evidentiary
hearing filed by petitioner before that time may be
considered premature, and may be denied, without prejudice,
on that basis. The motion for an evidentiary hearing must
specifically address why an evidentiary hearing is required,
and must meet the requirements of 28 U.S.C. § 2254(e).
The motion must state whether an evidentiary hearing was held
in state court, and, if so, state where the transcript is
located in the record. If petitioner files a motion for an
evidentiary hearing, respondents shall file and serve a
response to that motion concurrently with, but ...