(HC)Smith v. Clark

[8] UNITED STATES DISTRICT COURT [9] EASTERN DISTRICT OF CALIFORNIA [10] 11 LAWRENCE CHRISTOPHER SMITH, Case No. 1:21-cv-01554-JLT-EPG-HC 12 Petitioner, ORDER DENYING PETITIONER’S MOTIONS TO AMEND, MOTION TO 13 v. WITHDRAW PLEADINGS, MOTIONS TO CONSOLIDATE, AND MOTION FOR 14 KEN CLARK, CONTEMPT PROCEEDINGS 15 Respondent. (ECF Nos. 30, 36, 38, 39, 40, 43) 16 ORDER GRANTING PETITIONER EXTENSION OF TIME TO FILE 17 TRAVERSE [18] 19 Petitioner Lawrence Christopher Smith is a state prisoner proceeding pro se with a 20 petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 . Before the Court are Petitioner’s 21 motions to amend, motion for contempt proceedings, motion to withdraw pleadings, and motions 22 to consolidate. (ECF Nos. 30, 36, 38, 39, 40, 43.) 23 I. 24 DISCUSSION 25 A. Motions to Withdraw Pleadings and Consolidate Petitions (ECF Nos. 36, 39, 40) 26 In the motion to withdraw pleadings, Petitioner seeks to withdraw his previously 27 submitted motion to amend (ECF No. 30) because “the proper course of action for [Petitioner] to have taken is to have sought to consolidate the current petition(s) [Petitioner has] before the 1 Court and . . . then filing a reply to the Respondent’s answers in one pleading hence 2 [Petitioner’s] actions in seeking to consolidate Case No. 1:21-cv-01346-JLT-EPG (HC) here.” 3 (ECF 39 at 2.)1 In the motions to consolidate petitions, Petitioner seeks to consolidate the instant 4 matter challenging his 2021 Kings County convictions with Smith v. Clark, No. 1:21-cv-013465 JLT-EPG, which challenges Petitioner’s 2017 Kern County convictions. (ECF Nos. 36, 40.)2 6 “A petitioner who seeks relief from judgments of more than one state court must file a 7 separate petition covering the judgment or judgments of each court.” Rule 2(e), Rules Governing 8 Section 2254 Cases in the United States District Courts (“Habeas Rules”), 28 U.S.C. foll. § 2254. 9 The instant matter seeks relief from a 2021 Kings County Superior Court judgment. In Smith v. 10 Clark, No. 1:21-cv-01346-JLT-EPG, Petitioner seeks relief from a 2017 Kern County Superior 11 Court judgment. (Petition, Smith v. Clark, No. 1:21-cv-01346-JLT-EPG, ECF No. 1.) As 12 Petitioner is seeking relief from judgments of more than one state court, he must file separate 13 petitions. Accordingly, consolidation is not warranted, and the Court will deny the motions to 14 consolidate petitions and the motion to withdraw pleadings.3 15 B. Motions to Amend 16 A party may amend its pleading once as a matter of course within 21 days after serving it, 17 or “if the pleading is one to which a responsive pleading is required, 21 days after service of a 18 responsive pleading.” Fed. R. Civ. P. 15(a)(1). But “[i]n all other cases, a party may amend its 19 pleading only with the opposing party’s written consent or the court’s leave.” Fed. R. Civ. P. 20 15(a)(2). See Mayle v. Felix, 545 U.S. 644, 655 (2005) (noting Federal Rule of Civil Procedure 21 15 is applicable to habeas proceedings). 22 Leave to amend “shall be freely given when justice so requires.” Fed. R. Civ. P. 15(a)(2). 23 However, the Court may decline to grant leave to amend “if there is strong evidence of ‘undue 24 delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies [25] 1 Page numbers refer to the ECF page numbers stamped at the top of the page. 2 The Court notes that ECF No. 36 is listed as a motion to amend on the docket, but the document itself is entitled [26] “Petitioners Motion To Consolidate Petitions.” (ECF No. 36 at 1.) 3 In the motion to withdraw pleadings, Petitioner seeks to withdraw his previously submitted motion to amend 27 because “the proper course of action for [Petitioner] to have taken is to have sought to consolidate the current petition(s) [Petitioner has] before the Court[.]” (ECF 39 at 2.) However, given that the motions to consolidate have 1 by amendments previously allowed, undue prejudice to the opposing party by virtue of 2 allowance of the amendment, [or] futility of amendment, etc.’” Sonoma Cty. Ass’n of Retired 3 Employees v. Sonoma Cty., 708 F.3d 1109, 1117 (9th Cir. 2013) (quoting Foman v. Davis, 371 4 U.S. 178, 182 (1962)). “Futility alone can justify a court’s refusal to grant leave to amend.” 5 Novak v. United States, 795 F.3d 1012, 1020 (9th Cir. 2015) (citing Bonin v. Calderon, 59 F.3d 6 815, 845 (9th Cir. 1995)). 7 1. ECF No. 30 8 On November 7, 2022, Petitioner moved to amend the petition and lodged an amended 9 petition. (ECF Nos. 30, 31.) Respondent filed an opposition. (ECF No. 34.) Here, an answer has 10 been filed and Petitioner did not move to amend within 21 days after the responsive pleading was 11 filed. As Respondent has opposed the motion to amend, Petitioner may only amend his petition 12 with the Court’s leave. 13 Petitioner claims that when he drafted the original petition he “was ill from the 14 debilitating effects of anemia . . . which is known to affect cognitive abilities.” (ECF No. 30 at 15 3.) Petitioner’s argument appears to be that the original petition is lacking because he drafted it 16 while ill from anemia. Yet after reviewing the petition and the amended petition, this Court does 17 not perceive any significant change in substance between the two petitions. The proposed 18 amended petition appears to reword and reorganize the claims and arguments, but it raises the 19 same claims, arguments, and facts as the original petition. Given that the proposed amended 20 petition is substantively identical to the original petition and Respondent has already filed an 21 answer, the Court finds that leave to amend is not warranted. Any enhancement or supplement to 22 the claims can be included in Petitioner’s traverse. 23 “Pursuant to section 636, magistrate judges may hear and determine nondispositive 24 matters, but not dispositive matters, in § 2254 proceedings.” Mitchell v. Valenzuela, 791 F.3d 25 1166, 1168 (9th Cir. 2015) (citing Hunt v. Pliler, 384 F.3d 1118, 1123 (9th Cir. 2004)). “To 26 determine whether a motion is dispositive, we have adopted a functional approach that looks to 27 the effect of the motion, in order to determine whether it is properly characterized as dispositive 1 omitted) (quoting Flam v. Flam, 788 F.3d 1043, 1046 (9th Cir. 2015)). “Under [Ninth Circuit] 2 caselaw, to determine whether a magistrate judge’s ruling denying a motion is dispositive, we 3 examine whether the denial of the motion effectively disposes of a claim or defense or precludes 4 the ultimate relief sought.” Bastidas v. Chappell, 791 F.3d 1155, 1164 (9th Cir. 2015) (citing 5 S.E.C. v. CMKM Diamonds, Inc., 729 F.3d 1248, 1260 (9th Cir. 2013)). Given that denial of 6 leave to amend in the instant proceeding does not “effectively dispose[] of a claim or defense or 7 preclude[] the ultimate relief sought,” Bastidas, 791 F.3d at 1164 , the undersigned has authority 8 to deny Petitioner’s motion for leave to amend.4 9 2. ECF No. 43 10 On April 21, 2023, Petitioner filed another motion to amend. (ECF No. 43.) Respondent 11 filed an opposition, and Petitioner filed a reply. (ECF Nos. 44, 45.) In this motion to amend, 12 Petitioner appears to seek to supplement his petition with challenges to his 2022 convictions in 13 two criminal cases and two disciplinary hearings. (ECF No. 43 at 4.) 14 Here, an answer already has been filed addressing the merits of the original petition. It 15 does not appear that any claims challenging the new 2022 criminal convictions and/or the two 16 disciplinary hearings have been exhausted. Any amended petition adding unexhausted claims 17 would have to be dismissed as a mixed petition. See Bolin v. Baker, 994 F.3d 1154, 1156 (9th 18 Cir. 2021) (“[F]ederal courts may not adjudicate ‘mixed petitions’ for habeas corpus—that is, 19 petitions that contain both exhausted and unexhausted federal claims.” (citing Rose v. Lundy, [20] 455 U.S. 509, 510 (1982))). And Petitioner’s vague and conclusory assertions do not establish 21 that he falls within one of the statutory exceptions to the exhaustion requirement or that his 22 failure to exhaust available state remedies should be excused. See 28 U.S.C. § 2254 (b)(1)(B) 23 (stating that a petitioner is excused from the exhaustion requirement if “(i) there is an absence of 24 available State corrective process; or (ii) circumstances exist that render such process ineffective 25 to protect the rights of the applicant”); Duckworth v. Serrano, 454 U.S. 1, 3 (1981) (noting that 26 an “exception [to the exhaustion requirement] is made only if there is no opportunity to [27] 4 A party may file objections to a magistrate judge’s order within fourteen days after being served a copy of the order, and a district judge will “consider timely objections and modify or set aside any part of the order that is 1 obtain redress in state court or if the corrective process is so clearly deficient as to render futile 2 any effort to obtain relief”); Hendricks v. Zenon, 993 F.2d 664, 672 (9th Cir. 1993) (recognizing 3 that exhaustion requirement may be excused “in rare cases where exceptional circumstances of 4 peculiar urgency are shown to exist” (quoting Granberry v. Greer, 481 U.S. 129, 134 (1987))). 5 Given that any amended petition adding Petitioner’s unexhausted claims would have to 6 be dismissed as a mixed petition, the Court finds that leave to amend is not warranted. This 7 conclusion does not preclude Petitioner from challenging his 2022 criminal convictions and the 8 two disciplinary hearings in separately filed habeas petitions. As denial of leave to amend does 9 not “effectively dispose[] of a claim or defense or preclude[] the ultimate relief sought,” 10 Bastidas, 791 F.3d at 1164 , the undersigned has authority to deny Petitioner’s motion for leave to 11 amend. 12 C. Motion for Contempt Proceedings (ECF No. 38) 13 “Civil contempt ‘consists of a party’s disobedience to a specific and definite court order 14 by failure to take all reasonable steps within the party’s power to comply.’” United States v. 15 DAS Corp., 18 F.4th 1032, 1039 (9th Cir. 2021) (quoting In re Dual-Deck Video Cassette 16 Recorder Antitrust Litig., 10 F.3d 693, 695 (9th Cir. 1993)). “For issuance of a contempt order 17 against [Respondent] to be proper, [Petitioner] must establish ‘(1) that [Respondent] violated the 18 court order, (2) beyond substantial compliance, (3) not based on a good faith and reasonable 19 interpretation of the order, (4) by clear and convincing evidence.’” Lab./Cmty. Strategy Ctr. v. 20 Los Angeles Cnty. Metro. Transp. Auth., 564 F.3d 1115, 1123 (9th Cir. 2009) (quoting In re 21 Dual–Deck Video Cassette Recorder Antitrust Litig., 10 F.3d at 695 ). 22 Here, Petitioner appears to argue that Respondent should be held in contempt pursuant to 23 Federal Rule of Civil Procedure 70(e) and compensatory damages should be awarded because 24 Respondent electronically lodged the state court record in this proceeding and did not provide 25 Petitioner with a hard copy. (ECF No. 38 at 3, 5–6.) However, Respondent did not disobey any 26 court order. In the Court’s January 27, 2022 order to respond, the Court ordered: 27 Respondent SHALL FILE any and all transcripts or other documents necessary for the resolution of the issues presented in 1 The transcripts or other documents shall only be filed electronically and, to the extent practicable, provided in 2 Optical Character Recognition (“OCR”) format. Respondent shall not file a hard copy of the transcripts or other documents 3 unless so ordered by this Court. 4 | (ECF No. 8 at 2 (emphasis in original).) The Court ordered Respondent to only file the state 5 | court record electronically and did not order Respondent to provide Petitioner with a hard copy 6 | of the state court record. As Petitioner has not established by clear and convincing evidence that 7 | Respondent violated a court order, the Court finds that issuance of a contempt order is not g | warranted. 9 II. 10 ORDER 11 Accordingly, the Court HEREBY ORDERS that: 12 1. The motions to consolidate (ECF Nos. 36, 40) are DENIED; 13 2. The motion to withdraw pleadings (ECF No. 39) is DENIED; 14 3. The motions to amend (ECF Nos. 30, 43) are DENIED; 15 4. The motion for contempt proceedings (ECF No. 38) is DENIED; and 16 5. Within THIRTY (30) days from the date of service of this order Petitioner may file a 17 traverse. [18] IT IS SO ORDERED. [19] 20| Dated: _ May 25, 2023 [sf Fy — UNITED STATES MAGISTRATE JUDGE