Gonzales, et al v. Schriro, et al

Filing 225

ORDER denying without prejudice the 221 Motion to Amend and/or Supplement the Memorandum on the Merits; denying without prejudice the 222 Motion to Stay Proceeding Pending Restoration. (See document for further details). Signed by Senior Judge Stephen M McNamee on 1/23/14. (LAD)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Ernest Valencia Gonzales,
Petitioner,

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vs.
Charles L. Ryan, et al.,

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Respondents.

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) No. CV-99-2016-PHX-SMM
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) DEATH PENALTY CASE
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) ORDER
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Before the Court are Petitioner’s Motions to (1) Amend and/or Supplement the

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Memorandum on the Merits and (2) Stay Proceeding Pending Restoration. (Docs. 221, 222.)

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Respondents oppose the motions. (Doc. 223.) Because the first motion was not filed in a

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procedurally appropriate manner and the second is premature, the Court denies both without

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prejudice.

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Petitioner’s motion to amend and/or supplement is procedurally deficient for four

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reasons. First, the motion is 63 pages in length and was filed without seeking leave to exceed

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the 17-page limitation for motions. See D. Ariz. LR Civ 7.2(e)(1). Second, Petitioner may

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not add new claims in this case by amending or supplementing his already-filed merits

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memorandum. The Court expressly limited the scope of that memorandum to provide for

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supplemental briefing only on the claims found by the Court to be procedurally appropriate

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for merits review. (See Doc. 97 at 33–37; Doc. 208 at 7-10.) Moreover, it is not appropriate

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to raise new claims outside of a habeas petition. See Cacoperdo v. Demosthenes, 37 F.3d

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504, 507 (9th Cir. 1994) (holding that a traverse “is not the proper pleading to raise

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additional grounds for relief”).

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supplement. The purpose of a supplemental pleading is to set forth facts pertaining to

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occurrences or events that have occurred since the filing of the original pleading. See Fed.

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R. Civ. P. 15(d); 6A Charles Alan Wright et al., Federal Practice and Procedure § 1504 (3d

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ed. 2004). Here, Petitioner has sought to “supplement” a merits memorandum with new

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claims but the claims are not based on new events or occurrences; rather, they assert

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ineffective assistance of counsel based on alleged deficiencies that occurred at the time of

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trial. Fourth, Petitioner has not complied with the local rules for amendment by motion by

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attaching a copy of the proposed amended pleading as an exhibit to the motion and indicating

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in what respect it differs from the pleading which it amends. See D. Ariz. LRCiv 15.1(a).

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Because Petitioner’s motion to amend and/or supplement the merits memorandum is

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procedurally improper, it will be denied without prejudice to refiling in a procedurally

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appropriate manner. If Petitioner files a motion to amend to add new claims to his pending

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habeas petition, he shall address in such motion (1) applicability of equitable tolling of the

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statute of limitations, and (2) applicability of the relation-back doctrine to each claim.

Third, Petitioner must seek leave to amend, not to

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The Court will also deny without prejudice the motion to stay proceedings pending

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competency restoration. The motion argues that Petitioner is presently incompetent and

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therefore cannot assist counsel in litigating the new claims identified in the motion to amend

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and/or supplement. However, until the Court determines whether amendment to add the

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claims is appropriate, it finds that any request for a stay based on Petitioner’s alleged

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incompetency to assist in litigation of the amended claims is premature. Petitioner can refile

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such motion when and if the Court grants leave to amend.

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Based on the foregoing,

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IT IS ORDERED that Petitioner’s Motion to Amend and/or Supplement the

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Memorandum on the Merits (Doc. 221) is DENIED WITHOUT PREJUDICE.
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IT IS FURTHER ORDERED that Petitioner’s Motion to Stay Proceeding Pending
Restoration (Doc. 222) is DENIED WITHOUT PREJUDICE.
DATED this 23rd day of January, 2014.

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