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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1 WO 2 3 4 5 6 7 IN THE UNITED STATES DISTRICT COURT 8 FOR THE DISTRICT OF ARIZONA 9 10 Ernest Valencia Gonzales, Petitioner, 11 12 13 vs. Charles L. Ryan, et al., 14 Respondents. 15 16 ) No. CV-99-2016-PHX-SMM ) ) ) DEATH PENALTY CASE ) ) ) ) ORDER ) ) ) ) ) 17 Before the Court are Petitioner’s Motions to (1) Amend and/or Supplement the 18 Memorandum on the Merits and (2) Stay Proceeding Pending Restoration. (Docs. 221, 222.) 19 Respondents oppose the motions. (Doc. 223.) Because the first motion was not filed in a 20 procedurally appropriate manner and the second is premature, the Court denies both without 21 prejudice. 22 Petitioner’s motion to amend and/or supplement is procedurally deficient for four 23 reasons. First, the motion is 63 pages in length and was filed without seeking leave to exceed 24 the 17-page limitation for motions. See D. Ariz. LR Civ 7.2(e)(1). Second, Petitioner may 25 not add new claims in this case by amending or supplementing his already-filed merits 26 memorandum. The Court expressly limited the scope of that memorandum to provide for 27 supplemental briefing only on the claims found by the Court to be procedurally appropriate 28 for merits review. (See Doc. 97 at 33–37; Doc. 208 at 7-10.) Moreover, it is not appropriate 1 to raise new claims outside of a habeas petition. See Cacoperdo v. Demosthenes, 37 F.3d 2 504, 507 (9th Cir. 1994) (holding that a traverse “is not the proper pleading to raise 3 additional grounds for relief”). 4 supplement. The purpose of a supplemental pleading is to set forth facts pertaining to 5 occurrences or events that have occurred since the filing of the original pleading. See Fed. 6 R. Civ. P. 15(d); 6A Charles Alan Wright et al., Federal Practice and Procedure § 1504 (3d 7 ed. 2004). Here, Petitioner has sought to “supplement” a merits memorandum with new 8 claims but the claims are not based on new events or occurrences; rather, they assert 9 ineffective assistance of counsel based on alleged deficiencies that occurred at the time of 10 trial. Fourth, Petitioner has not complied with the local rules for amendment by motion by 11 attaching a copy of the proposed amended pleading as an exhibit to the motion and indicating 12 in what respect it differs from the pleading which it amends. See D. Ariz. LRCiv 15.1(a). 13 Because Petitioner’s motion to amend and/or supplement the merits memorandum is 14 procedurally improper, it will be denied without prejudice to refiling in a procedurally 15 appropriate manner. If Petitioner files a motion to amend to add new claims to his pending 16 habeas petition, he shall address in such motion (1) applicability of equitable tolling of the 17 statute of limitations, and (2) applicability of the relation-back doctrine to each claim. Third, Petitioner must seek leave to amend, not to 18 The Court will also deny without prejudice the motion to stay proceedings pending 19 competency restoration. The motion argues that Petitioner is presently incompetent and 20 therefore cannot assist counsel in litigating the new claims identified in the motion to amend 21 and/or supplement. However, until the Court determines whether amendment to add the 22 claims is appropriate, it finds that any request for a stay based on Petitioner’s alleged 23 incompetency to assist in litigation of the amended claims is premature. Petitioner can refile 24 such motion when and if the Court grants leave to amend. 25 Based on the foregoing, 26 IT IS ORDERED that Petitioner’s Motion to Amend and/or Supplement the 27 28 Memorandum on the Merits (Doc. 221) is DENIED WITHOUT PREJUDICE. -2- 1 2 3 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. 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -3-

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