United States District Court, D. Nevada
ORDER DENYING MOTION FOR RECONSIDERATION (ECF NO.
186) AND GRANTING MOTION FOR LEAVE TO AMEND (ECF NO.
R. HICKS, UNITED STATES DISTRICT JUDGE
capital habeas corpus action, on March 6, 2017, the
petitioner, Fernando Navarro Hernandez, filed a fourth
amended habeas petition (ECF No. 147). On March 5, 2018,
Respondents filed a motion to dismiss (ECF No. 161). The
Court ruled on the motion to dismiss on February 4, 2019 (ECF
No. 184), granting the motion in part and denying it in part
and dismissing certain of Hernandez’s claims.
March 1, 2019, Hernandez filed a motion for reconsideration
(ECF No. 186), requesting that the Court reconsider an issue
resolved in the order on the motion to dismiss. Respondents
filed an opposition to that motion on April 19, 2019 (ECF No.
194), and Hernandez replied on May 10, 2019 (ECF No. 200).
The issue Hernandez seeks to have reconsidered is
“whether the Nevada Supreme Court ‘clearly and
expressly’ applied Nev. Rev. Stat. (NRS) § 34.726
to claims raised in Mr. Hernandez’s second state
post-conviction (habeas) action.” Motion for
Reconsideration (ECF No. 186), p. 3.
district court possesses “inherent procedural power to
reconsider, rescind, or modify an interlocutory order for
cause seen by it to be sufficient.” City of Los
Angeles v. Santa Monica Baykeeper, 254 F.3d 882, 885
(9th Cir. 2001) (citations and internal quotation marks
omitted); see also Fed. R. Civ. P. 60. However,
reconsideration of a prior order is an extraordinary remedy
“to be used sparingly in the interests of finality and
conservation of judicial resources.” Kona
Enterprises, Inc. v. Estate of Bishop, 229 F.3d 877, 890
(9th Cir. 2000) (citation omitted). “Whether or not to
grant reconsideration is committed to the sound discretion of
the court.” Navajo Nation v. Confederated Tribes
and Bands of the Yakama Indian Nation, 331 F.3d 1041,
1046 (9th Cir. 2003). However, “a motion for
reconsideration should not be granted, absent highly unusual
circumstances, unless the district court is presented with
newly discovered evidence, committed clear error, or if there
is an intervening change in the controlling law.”
Marlyn Nutraceuticals, Inc. v. Mucos Pharma GmbH &
Co., 571 F.3d 873, 880 (9th Cir. 2009) (quoting 389
Orange St. Partners v. Arnold, 179 F.3d 656, 665 (9th
Cir. 1999). A motion for reconsideration “may not be
used to raise arguments or present evidence for the first
time when they could reasonably have been raised earlier in
the litigation.” Id. (quoting Kona
Enterprises, 229 F.3d at 890).
argument made by Hernandez in his motion for reconsideration
– that the Nevada Supreme Court did not clearly and
expressly apply NRS § 34.726 to all the claims raised in
his second state habeas action – was asserted in his
opposition to Respondents’ motion to dismiss.
See Opposition to Motion to Dismiss (ECF No. 168),
pp. 32-39. Hernandez adds nothing of substance to the
arguments he made regarding that issue in response to the
motion to dismiss. The Court remains of the view that the
Nevada Supreme Court clearly and expressly applied NRS §
34.726 to all the claims in his untimely second state habeas
action. See Order of Affirmance, Exhibit 203 (ECF
No. 98-7). The Court will deny Hernandez’s motion for
on July 2, 2019, Hernandez filed a motion for leave to
further amend his habeas petition (ECF No. 204), seeking
leave of court to amend his petition to add three new claims,
which would be Claim 30, 31 and 32. Hernandez alleges that
the three claims in question have been exhausted in state
court, and that they were included in Hernandez’s
initial pro se petition in this action but not in
any of his subsequent amended petitions.
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; 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).
argue generally that the proposed amendment will cause undue
delay and prejudice. See Opposition to Motion for
Leave to Amend (ECF No. 212), pp. 1, 3. However, Respondents
do not describe how they would be prejudiced. And,
Respondents do not show that the relatively minor delay
caused by the amendment outweighs the petitioner’s
need, in this capital habeas corpus action, to assert his
claims. Respondents also assert that they would have
procedural defenses to the new claims, but they do not brief
those defenses, and they do not oppose the amendment on the
ground that it would be futile.
Court will grant Hernandez leave of court to file a fifth
amended petition, adding Claims 30, 31 and 32 – and
making no other changes. Claims 1 through 29 are to remain in
the fifth amended petition and will not be altered.
granting Hernandez leave to amend to add his Claims 30, 31
and 32 to his petition, the Court conveys no opinion
regarding the procedural viability of those claims or
regarding their merits.
assert that there are “available procedural defenses to
the proposed new claims.” Opposition to Motion for
Leave to Amend (ECF No. 212), p. 2, footnote 1. The Court
will, therefore, set a schedule for Respondents to file a
motion to dismiss, which motion to dismiss may raise
procedural defenses to Claims 30, 31 and 32 – and only
those three claims.
IS THEREFORE ORDERED that Petitioner’s Motion
for Reconsideration (ECF No. 186) is DENIED.
IS FURTHER ORDERED that Petitioner’s Motion
for Leave to Amend (ECF No. 204) is GRANTED.
Petitioner will have 10 days from the date of this order to
file a Fifth Amended Petition for Writ of Habeas Corpus,
including his three new claims, Claims 30, 31 and 32 (and
making no other substantive changes to the petition).
IS FURTHER ORDERED that Respondents will have 60
days from the filing of Petitioner’s fifth amended
petition to file a motion to dismiss ...