United States District Court, D. Nevada
M. NAVARRO UNITED STATES DISTRICT JUDGE.
pro se habeas matter comes before the Court on
petitioner's motion for leave to file a second amended
petition (ECF No. 30). Respondents have opposed (ECF No. 33),
and petitioner has replied (ECF No. 34).
initiated this action on March 1, 2016, with the filing of a
petition for writ of habeas corpus pursuant to 28 U.S.C.
§ 2254. The Court screened the petition and ordered
service and a response. Respondents first filed a motion to
dismiss on the grounds that some of the claims were
procedurally defaulted and others noncognizable. The Court
ruled on the motion, and dismissed Grounds 1 and 5 as
procedurally defaulted and Ground 7 as noncognizable.
Respondents filed an answer to the petition on February 21,
2018. (See ECF No. 8). Petitioner asserts that he
deposited his motion for leave to amend with his
institution's mailroom on March 4, 2018. (See
ECF No. 34 at 3).
petitions may be amended “as provided in the rules of
procedure applicable to civil actions, ” but the
Federal Rules of Civil Procedure apply only “to the
extent they are not inconsistent with any statutory
provisions, or” the Rules Governing Section 2254 Cases.
28 U.S.C. § 2242; Rule 12 of the Rules Governing Section
2254 Cases in the United States District Courts. Rule
15(a)(1) allows a plaintiff the right to amend once as a
matter of course within 21 days of service of the complaint,
or within the earlier of 21 days after service of a
responsive pleading or 21 days after service of a motion
under Rule 12(b), (e), or (f). Otherwise, amendment is
allowed only with the opposing party's written consent or
with leave of court. Fed.R.Civ.P. 15(a)(2).
argues that his amendment is proper as a matter of course
pursuant to Federal Rule of Civil Procedure 15(a)(1)(B)
because he submitted his proposed amended petition within 21
days of the filing of the answer. Respondents argue that Rule
15(a)(1)(B) conflicts with the habeas rules by allowing
amendment after an answer because the habeas rules
contemplate only a reply after an answer. Respondents further
argue that, even if Rule 15(a)(1)(B) can apply in this
context, petitioner did not file his proposed amended
petition within the timeline set forth in the rule.
the Court is not persuaded by respondents' argument that
Rule 15(a)(1) conflicts with the habeas rules in this
context, it is persuaded that petitioner's amended
petition was not timely filed pursuant to Rule 15(a)(1)(B)
and therefore cannot be considered an amendment of right.
Court accepts as true petitioner's representation that he
delivered his proposed amended petition to his
institution's mailroom for filing on March 4, 2018, even
though the document was apparently not actually mailed until
several weeks later. That would mean he effectively filed his
proposed amended petition within 21 days after respondents
served him with their answer. Nevertheless, Rule 15(a)(1)
provides for an amendment of right within 21 days of the
earlier of service of a responsive pleading
(i.e., an answer) or service of a motion
pursuant to Rule 12(b), (e) or (f). Respondents filed a
motion to dismiss on October 31, 2016. The deadline for
petitioner to file a petition as a matter of course under
Rule 15(a)(1)(B) therefore expired long before he submitted
his proposed amended petition. Under the express language of
Rule 15(a)(1)(B), petitioner was not entitled to a renewed
period to amend as a matter of right after the respondents
filed their answer. See Ramirez v. County of San
Bernardino, 806 F.3d 1002, 1008 (9th Cir. 2015).
Accordingly, petitioner's motion to amend his complaint
as a matter of course will be denied.
may therefore amend only with leave of court. Under Federal
Rule of Civil Procedure 15(a)(2), leave to amend should be
freely given “when justice so requires.” But
leave to amend “is not to be granted automatically,
” and the court “considers the following five
factors to assess whether to grant leave to amend: (1) bad
faith, (2) undue delay, (3) prejudice to the opposing party,
(4) futility of amendment; and (5) whether plaintiff has
previously amended his complaint.” In re W. States
Wholesale Natural Gas Antitrust Litig., 715 F.3d 716,
738 (9th Cir. 2013) (internal punctuation omitted). Whether a
claim is exhausted is a relevant consideration in determining
whether amendment would be futile. See Caswell v.
Calderon, 363 F.3d 832, 837-38 (9th Cir. 2004).
review of the original and proposed amended petitions in this
case, it is clear that many of the new claims petitioner
seeks to add are not exhausted, including but not limited to
Grounds 2, 7 and 8. (ECF No. 30-2 at 10, 35 & 39). In
addition, petitioner seeks to reintroduce claims that the
Court has already dismissed with prejudice, although he asks
the Court to reconsider dismissal of those claims
“based on the facts in the second amended
petition.” (See ECF No. 30 at 16).
Petitioner's arguments that the Court may excuse his
failure to exhaust and should reconsider its earlier
dismissal of Grounds 1, 5 and 7 are not persuasive. Thus,
petitioner's amendment would, in large part, be futile.
extent petitioner seeks to add claims that have been
exhausted, or to include additional factual allegations to
the claims already in the petition, he has failed to provide
good cause for his failure to include the claims and
allegations in his original federal petition.
petitioner has unduly delayed in seeking to amend his
petition. Petitioner initiated this action more than two
years ago and did not seek leave to amend until
respondents' motion to dismiss had been fully resolved
and respondents had filed an answer.
petitioner's motion to amend will be denied on the basis
that petitioner has unduly delayed, has failed to establish
good cause for the failure to include his new claims and
additional allegations in the original petition, and because
amendment would, as to many of the new claims, be futile.
Insofar as petitioner seeks to add additional factual
allegations to his existing claims in response to
respondents' arguments, in their answer, that the claims
lack factual specificity, those allegations are more
appropriately raised in the reply.
accordance with the foregoing, IT IS HEREBY ORDERED that
petitioner's motion for leave to amend (ECF No. 30) is
FURTHER ORDERED that to the extent petitioner seeks
reconsideration of the Court's order on respondents'
motion to dismiss, the motion is DENIED WITHOUT PREJUDICE.
Should petitioner wish to file a renewed motion for
reconsideration, he should specify what facts and arguments
justify reconsideration on each claim. A conclusory request
that the Court ...