Voage v. Paramo

Filing 35

ORDER signed by Magistrate Judge Allison Claire on 06/06/14 granting 32 Motion to Amend. The first amended 2254 petition in rendered to operative pleading in this action. Petitioner's motion to stay his original 2254 petition 27 is vacate d as moot. Within 21 days from the date of this order, respondent is ordered to file a response to petitioner's amended motion to stay his first amended 2254 petition that was filed on 4/21/14. Petitioner may file a reply within 14 days thereafter. (Plummer, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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KEVIN S. VOAGE,

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Petitioner,

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No. 2:13-cv-01342 JAM AC P

v.

ORDER

DANIEL PARAMO,

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Respondent.

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Petitioner is a state prisoner proceeding pro se and in forma pauperis with a habeas corpus

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petition pursuant to 28 U.S.C. § 2254. The matter has been referred to the Magistrate Judge

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pursuant to 28 U.S.C. § 636(b)(1) and Local Rule 302. Currently pending before the court is

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petitioner’s motion to stay his unexhausted claims, filed on January 27, 2014. ECF No. 27.

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Respondent opposed the motion on February 20, 2014. ECF No. 28. Before the court could rule

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on this motion, however, petitioner filed a motion to amend his 28 U.S.C. § 2254 petition as well

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as a putative first amended § 2254 petition. See ECF Nos. 32, 34. Petitioner also filed an

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amended motion for a stay and abeyance of his amended habeas corpus petition. ECF No. 33.

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No opposition to the motion to amend nor the amended motion for a stay and abeyance was filed

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by respondent. The court will first address petitioner’s motion to amend his habeas corpus

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petition, as the adjudication of that motion will affect the resolution of his motion for a stay and

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abeyance.

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I.

Motion to Amend

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In his motion to amend, petitioner requests leave of court to file an amended habeas

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corpus petition that contains both exhausted and unexhausted claims for relief, i.e. a mixed

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petition. ECF No. 32 at 1. He concedes that the first three claims for relief are unexhausted, but

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the last five claims for relief were all exhausted on direct appeal. Id. According to petitioner, he

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filed the amended § 2254 petition in order to correct “errors in the original petition.” Id. Later in

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his amended § 2254 petition petitioner clarifies the error that he is seeking to correct by stating

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that the “federal relevance of [his] claims was not clear enough” in the original petition. ECF No.

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34 at 11.

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The putative first amended § 2254 petition challenges petitioner’s 2011 conviction for

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receiving stolen property. ECF No. 34 at 1. As a result of California’s Three Strikes Law,

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petitioner was sentenced to serve thirty years to life. Id. Comparing the claims presented in the

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original petition to those identified in the amended § 2254 petition, it appears that petitioner has

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added three new unexhausted claims for relief as well as an additional claim that was presented

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on direct appeal. Compare ECF No. 1 with ECF No. 33. These new claims include a challenge

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to appellate counsel’s effectiveness for failing to appeal claims of constitutional merit; a claim of

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judicial misconduct during sentencing proceedings which led to a fundamentally unfair life

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sentence; a challenge to the restitution ordered as part of petitioner’s sentence; and a challenge to

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the trial court’s admission of petitioner’s six prior felony convictions as impeachment evidence at

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trial. ECF No. 33 at 12-33.

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II.

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Standards Governing Leave to Amend
Under 28 U.S.C. § 2242, an application for a writ of habeas corpus “may be amended or

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supplemented as provided in the rules of procedure applicable to civil actions.” See also Rule 12

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of the Rules Governing § 2254 Cases (recognizing general applicability in habeas of rules of civil

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procedure). Petitioner's motion is governed by Rule 15(a)(2) of the Federal Rules of Civil

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Procedure which permits an amended pleading “once as a matter of course within: (A) 21 days

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after serving it, or (B) if the pleading is one to which a responsive pleading is required, 21 days

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after service of a responsive pleading or 21 days after service of a motion under rule 12(b) ), (e),
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or (f), whichever is earlier.” In considering whether to grant leave to amend, under Rule 15(a)(2),

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the court “should freely give leave when justice so requires.” See Outdoor Systems, Inc. v. City

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of Mesa, 997 F.2d 604, 614 (9th Cir. 1993) (the Ninth Circuit reviews a denial of leave to amend

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“for abuse of discretion and in light of the strong public policy permitting amendment.”). Factors

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to be considered include “bad faith, undue delay, prejudice to the opposing party, futility of the

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amendment, and whether the party has previously amended his pleadings.” Bonin v. Calderon,

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59 F.3d 815, 845 (9th Cir. 1995).

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III.

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Analysis
While more than 21 days have passed since the original § 2254 petition was served,

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respondent has not filed a responsive pleading or a dispositive motion. In fact, this court vacated

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respondent’s deadline for filing a response to the original § 2254 petition in light of the pending

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motion for a stay. See ECF No. 26. Accordingly, petitioner may amend his habeas corpus

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petition as of right pursuant to Rule 15 of the Federal Rules of Civil Procedure.

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In reviewing the additional factors to consider pursuant to Bonin, the court further finds

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that leave to amend should be granted even if petitioner were not entitled to amend his petition as

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of right. The record does not demonstrate any bad faith on the part of petitioner or any attempt to

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delay these proceedings. Petitioner indicated that he filed the amended § 2254 petition in order to

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correct deficiencies he identified in the original petition. Additionally, this is petitioner’s first

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amended pleading and there is no prejudice to respondent because they have not filed an answer

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to the original petition. Absent a review of the full state court record of petitioner’s trial, which

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has not yet been filed in the present case, it cannot be said that any of the claims presented in the

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amended § 2254 petition are futile. This is especially true in light of both parties’

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acknowledgment that the statute of limitations did not expire in the present case until May 14,

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2014. See ECF Nos. 28 (respondent’s opposition to motion for a stay), 33 (petitioner’s amended

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request for a stay). Thus, the amended habeas corpus petition was timely filed. For all these

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additional reasons, the court will grant petitioner’s motion to amend.

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IV.

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Original Motion to Stay
In light of the amended § 2254 petition which supersedes the original petition for which
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petitioner requested a stay, this court will vacate petitioner’s original motion for a stay filed on

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January 27, 2014 as moot. See Lacey v. Maricopa County, 693 F.3d 896 (9th Cir. 2012)

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(recognizing the general rule that an an amended pleading supersedes the original pleading and

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renders it without legal effect). The court will order further briefing on the amended motion for a

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stay that was filed contemporaneously with petitioner’s amended § 2254 petition. See ECF No.

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33. Since the amended § 2254 petition contains new claims that were not presented in the

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original petition, the parties shall focus on the factors for obtaining a stay pursuant to Rhines v.

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Weber, 544 U.S. 269 (1995), in light of the claims presented in the amended § 2254 petition.

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Accordingly, IT IS HEREBY ORDERED THAT:
1. Petitioner’s motion to amend (ECF No. 32) is granted, rendering the first amended
§ 2254 petition the operative pleading in the instant action;
2. Petitioner’s motion to stay his original § 2254 petition (ECF No. 27) is vacated as
moot; and,
3. Within 21 days from the date of this order, respondent is ordered to file a response to

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petitioner’s amended motion to stay his first amended § 2254 petition that was filed on April 21,

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2014; and,

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4. Petitioner may file a reply within 14 days thereafter.
DATED: June 6, 2014

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