Xabandith v. Horel

Filing 38

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Dale A. Drozd on 08/11/11 recommending that petitioner's motion to amend 31 be denied. MOTION to AMEND 31 referred to Judge Lawrence K. Karlton. Objections due within 21 days. (Plummer, M)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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PHANHAHA XABANDITH,

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Petitioner,

No. CIV S-09-2550 LKK DAD P

vs.
FRANCISCO JACQUEZ,
Respondent.

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FINDINGS AND RECOMMENDATIONS
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Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas

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corpus pursuant to 28 U.S.C. § 2254. On May 18, 2011, respondent filed an answer to the

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petition. Pending before the court is petitioner’s motion to amend his petition. Respondent has

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filed an opposition to the motion.

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PETITIONER’S MOTION TO AMEND

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In his motion to amend, petitioner argues that he forgot to include one other

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ground for relief in his petition for habeas relief. Specifically, in his proposed “Ground 7”,

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petitioner claims that the trial court admitted impermissible hearsay evidence at trial in violation

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of petitioner’s rights under the Sixth Amendment.

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Respondent has opposed petitioner’s motion to amend and argues, inter alia, that
any amendment would be untimely.
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DISCUSSION

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As both parties are aware, on January 31, 2011, the undersigned issued findings

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and recommendations, recommending that respondent’s motion to dismiss the petition as

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untimely be denied. On March 28, 2011, the assigned district judge adopted the findings and

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recommendations in full. In those findings and recommendations, the undersigned found that

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petitioner’s judgment of conviction became final on October 9, 2007. The AEDPA statute of

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limitations for the filing of a federal habeas petition began to run on October 10, 2007, and

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continued to run for 265 days until petitioner filed his first state petition for habeas relief. The

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statute of limitations then tolled for 408 days, from his filing of his first state habeas petition on

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June 30, 2008, to the denial of his third and final state habeas petition on August 12, 2009.

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Under these circumstances, petitioner timely filed his original habeas petition on August 29,

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2009.

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However, the statute of limitations continued running during the pendency of this

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action, rendering petitioner’s proposed “Ground 7”, filed May 28, 2011, untimely because more

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than the 100 days remaining on the statute of limitations have long since passed. See Duncan v.

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Walker, 533 U.S. 167, 172-75 (2001) (unlike the filing of a state habeas petition, the filing of a

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federal habeas petition does not toll the statute of limitations).

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A petitioner’s amendments made after the statute of limitations has run will relate

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back to the date of his original pleading only if the new claims arose out of the conduct,

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transaction, or occurrence set forth or attempted to be set forth in the original pleading. See

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Mayle v. Felix, 545 U.S. 644 (2005). See also Rule 11, Fed. R. Governing § 2254 Cases

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(providing that the Federal Rules of Civil Procedure may be applied in habeas corpus

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proceedings to the extent that the rules of civil procedure are not inconsistent with any statutory

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provision or with the rules governing habeas cases). In Mayle, the Supreme Court explained that

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“[t]he ‘original pleading’ to which Rule 15 refers is the complaint in an ordinary civil case, and

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the petition in a habeas proceeding.” Id. at 655. The Court observed that the complaint in an
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ordinary civil case need only provide fair notice of the plaintiff’s claim and the grounds on which

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the claim rests, while a habeas petition is required to specify all grounds for relief available to the

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petitioner and state the facts supporting each ground. Id. Because of this difference between

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civil complaints and habeas petitions, the relation back of new habeas claims “depends on the

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existence of a common ‘core of operative facts’ uniting the original and newly asserted claims.”

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Mayle, 545 U.S. at 659. See also Hebner v. McGrath, 543 F.3d 1133, 1138 (9th Cir. 2008)

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(admission of evidence during a trial and the instructions given to the jury after the close of

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evidence are two discrete occurrences that do not share a common core of operative fact).

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In this case, petitioner’s proposed “Ground 7” regarding the trial court’s purported

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admission of improper hearsay evidence does not share a common core of operative facts with

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his pending, timely filed claims. See Mayle, 545 U.S. at 656 (amended claim must arise from the

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same “conduct, transaction, or occurrence” as original claim to relate back). Accordingly,

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petitioner’s proposed new claim for habeas relief does not relate back to his timely filed federal

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habeas petition and is barred by the applicable statute of limitations.

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CONCLUSION

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For the reasons discussed above, IT IS HEREBY RECOMMENDED that
petitioner’s motion to amend (Doc. No. 31) be denied.

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These findings and recommendations are submitted to the United States District

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Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within twenty-

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one days after being served with these findings and recommendations, any party may file written

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objections with the court and serve a copy on all parties. Such a document should be captioned

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“Objections to Magistrate Judge’s Findings and Recommendations.” Any reply to the objections

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shall be served and filed within ten days after service of the objections. The parties are advised

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that failure to file objections within the specified time may waive the right to appeal the District

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Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

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DATED: August 11, 2011.

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DAD:9
xaba22550.mta

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