(HC)(DP) Maury v. Martel

[7] 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA [10] 11 ROBERT EDWARD MAURY, No. 2:12-cv-1043 WBS DB P 12 Petitioner, 13 v. FINDINGS AND RECOMMENDATIONS 14 WARDEN, CALIF. STATE PRISON AT SAN QUENTIN, [15] Respondent. [17] Petitioner is a condemned state prisoner proceeding through counsel with a petition for a [18] writ of habeas corpus under 28 U.S.C. § 2254 . Before the court is petitioner’s motion to file a [19] supplemental petition. For the reasons set forth below, this court will recommend petitioner’s [20] motion be denied without prejudice. [21] BACKGROUND [22] Petitioner filed a petition in October 2012. (ECF No. 25.) Respondent filed an answer in [23] December 2013. (ECF No. 48.) After the withdrawal of one of his attorneys in 2015, petitioner, [24] through his remaining attorney, filed a reply in March 2017. (ECF No. 155.) For various [25] reasons, petitioner’s counsel changed twice after he filed the reply. The court appointed his [26] current counsel in May 2019. [27] //// [28] 1 Petitioner then sought a stay of these proceedings and equitable tolling of the statute of 2 limitations to permit new counsel to conduct investigations. The court granted those requests. In 3 May 2021, petitioner filed the present motion to file a supplemental petition. (ECF No. 195.) 4 Respondent filed an opposition (ECF No. 200) and petitioner filed a reply (ECF No. 204). 5 Petitioner argues he should be permitted to add claims to his petition that prior counsel failed to 6 raise due to conflicts of interest. 7 MOTION TO FILE SUPPLEMENTAL PETITION 8 I. Legal Standards 9 Under 28 U.S.C. § 2242 , an application for a writ of habeas corpus “may be amended or 10 supplemented as provided in the rules of procedure applicable to civil actions.” While petitioner 11 identifies his motion as one to supplement his petition, he is essentially seeking to amend it 12 because his claims challenge the same conviction and sentence challenged in his original petition. 13 See 4 Wright, Miller & Kane, Federal Practice & Procedure, § 1504 (3d ed.) (Supplemental 14 pleadings deal with events subsequent to the present pleading.).1 15 The standards for amending a petition are set out in Federal Rule of Civil Procedure 15. 16 Leave to amend “‘shall be freely given when justice so requires.’” Caswell v. Calderon, 363 F.3d 17 832, 837 (9th Cir. 2004) (quoting Fed. R. Civ. P. 15(a)). In deciding whether to grant leave to 18 amend, courts are guided by five factors: (1) bad faith; (2) undue delay; (3) prejudice to the 19 opposing party; (4) futility of amendment; and (5) whether the party previously amended its 20 pleadings. Id. Each factor is not given equal weight. Bonin v. Calderon, 59 F.3d 815, 845 (9th 21 Cir. 1995). 22 “Futility of amendment can, by itself, justify the denial of a motion for leave to amend.” 23 Bonin, 59 F.3d at 845 . “[A]mendment is futile if the statute of limitations has run, the claims are 24 unexhausted, or the legal bases for the claims are tenuous.” Ibarra v. Hedgpeth, No. 1:10-cv25 //// [26] 27 1 The court excused petitioner from compliance with Local Rule 220, which requires a party seeking to amend a pleading to file a new pleading which supersedes the original one. (See ECF 28 No. 191.) That ruling explains petitioner’s identification of his motion as one to “supplement.” 1 0180 LJO SAB HC, 2013 WL 5969667 , at *1 (E.D. Cal. Nov. 8, 2013) (citing Rodriguez v. 2 United States, 286 F.3d 972, 980 (7th Cir. 2002) and Caswell, 363 F.3d at 837-39 )). 3 II. Discussion 4 Petitioner contends that none of the five factors counseling against amendment apply here. 5 Respondent argues that amendment would be futile because petitioner failed to exhaust the claims 6 raised in the supplemental petition. This court agrees. 7 Petitioner concedes that his claims are not exhausted.2 (See ECF No. 204 at 4 (petitioner 8 argues he should be given the opportunity to exhaust his new claims).) However, petitioner also 9 makes a somewhat contradictory arguments that the exhaustion issue is premature because it is 10 not clear from the face of the supplemental petition and should be addressed after briefing on the 11 merits. (Id.) Petitioner cites no authority for this proposition and it is contrary to case law from 12 this circuit. In Caswell, when considering a motion to amend the petition, the court analyzed the 13 exhaustion status of the claims the petitioner sought to add. See 363 F.3d at 837-39 . 14 It is well established that a federal court may not “adjudicate mixed petitions for habeas 15 corpus, that is, petitions containing both exhausted and unexhausted claims.” Rhines v. Weber, [16] 544 U.S. 269, 273 (2005) (citing Rose v. Lundy, 455 U.S. 509, 518-19 (1982)). Historically, 17 federal courts dismissed mixed petitions. See Rhines, 544 U.S. at 274 ; Rose, 455 U.S. at 522 . In 18 2005, the Supreme Court considered the propriety of staying a mixed petition. In Rhines, the 19 Court held that stay and abeyance of a mixed petition is available in “limited circumstances” 20 when “the district court determines there was good cause for the petitioner’s failure to exhaust his 21 claims first in state court.” 544 U.S. at 277 . Petitioner does not seek such a stay here. 22 This court finds amending the petition at this time would be futile. Absent an express 23 waiver of exhaustion by respondent, which respondent has not made, petitioner cannot succeed on [24] 2 Petitioner disputes respondent’s contention that petitioner is alleging his claims are “‘technically [25] exhausted’ because they are now procedurally barred under [state] law.” Gray v. Netherland, 518 U.S. 152, 162-63 (1996) (quoting Castille v. Peoples, 489 U.S. 436 , 351 (1989)); see also 28 26 U.S.C. § 2254 (b)(1)(B)(i) (exhaustion not necessary if there is “an absence of available State 27 corrective process”). Petitioner states that he “has a viable legal avenue to exhaust the claims in his supplemental petition in state court.” (ECF No. 204 at 2.) Accordingly, technical exhaustion 28 is not an issue before the court and this court does not address it. 1 his unexhausted claims at this time. See Scott v. Baldwin, 225 F.3d 1020 , 1023 n. 7 (9th Cir. 2 2000) (The petitioner “cannot succeed on a [new] claim for the simple reason that it, obviously, 3 has not been exhausted in state court.” (citing 28 U.S.C. § 2254 (b)(1)(A) (providing that a state 4 prisoner’s habeas petition “shall not be granted unless it appears that the applicant has exhausted 5 the remedies available in the courts of the State”) and Jiminez v. Rice, 222 F.3d 1210 , 1212 (9th 6 Cir.2000), reh’g granted, opinion withdrawn on other grounds, 246 F.3d 1277 (9th Cir. 2001), 7 and on reh’g, 276 F.3d 478 (9th Cir. 2001).); cf. 28 U.S.C. §2254 (b)(3) (a state’s waiver of 8 exhaustion must be expressly made); 28 U.S.C. § 2254 (b)(2) (an unexhausted claim may be 9 denied if it is meritless). Based on controlling authority, this court will recommend petitioner’s 10 motion to amend the petition by filing a supplemental petition be denied without prejudice. 11 Accordingly, IT IS HEREBY RECOMMENDED that petitioner’s motion to supplement 12 the petition (ECF No. 195) be denied without prejudice. 13 These findings and recommendations will be submitted to the United States District Judge 14 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636 (b)(l). Within fourteen days 15 after being served with these findings and recommendations, any party may file written 16 objections with the court and serve a copy on all parties. The document should be captioned 17 “Objections to Magistrate Judge's Findings and Recommendations.” Any response to the 18 objections shall be filed and served within seven days after service of the objections. The parties 19 are advised that failure to file objections within the specified time may result in waiver of the 20 right to appeal the district court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). In the 21 objections, the party may address whether a certificate of appealability should issue in the event 22 an appeal of the judgment in this case is filed. See Rule 11, Rules Governing § 2254 Cases (the 23 //// 24 //// 25 //// 26 //// 27 //// 28 //// 1 | district court must issue or deny a certificate of appealability when it enters a final order adverse 2 | to the applicant). 3 | Dated: September 26, 2022 [5] 6 ‘BORAH BARNES UNITED STATES MAGISTRATE JUDGE [19] DLB:9 29 || DB Prisoner Inbox/Capital/Maury.mot to amend