Eli E Garcia-v-MacDonald, et al

Filing 39

ORDER GRANTING 30 MOTION FOR LEAVE TO FILE AMENDED ANSWER by Hon. William H. Orrick. (jmdS, COURT STAFF) (Filed on 6/15/2017)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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ELI E. GARCIA,
Plaintiff,

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United States District Court
Northern District of California

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Case No. 15-cv-04484-WHO
ORDER GRANTING MOTION FOR
LEAVE TO FILE AMENDED ANSWER

v.
JIM MACDONALD, et al.,
Defendants.

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INTRODUCTION
On March 1, 2017, I granted petitioner’s request for an evidentiary hearing to investigate

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his habeas claim of juror bias. (Dkt. No. 25). Following that order, respondent moved for leave to

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file an amended answer to the order to show cause, seeking to add a new argument that

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petitioner’s juror bias claim is procedurally defaulted based on a Supreme Court case published

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after his initial answer was filed. See Mot. for Leave (Dkt. No. 30). Respondent further moved

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for reconsideration of the Order granting an evidentiary hearing because (1) I failed to properly

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apply AEDPA; and (2) the juror bias claim is procedurally defaulted. Reconsideration Mot. at 1-2

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(Dkt. No. 31). The motion for leave to file an amended answer is GRANTED because it is not the

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product of undue delay, will not cause undue prejudice, and is not futile. Respondent’s proposed

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Amended Answer and Memorandum of Points and Authorities in Support, filed at Dockets 30-1

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and 30-2 will be deemed filed as of today. Petitioner will have 30 days from the date of this Order

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to file an Amended Traverse. I will defer ruling on respondent’s motion for reconsideration until

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after petitioner has had a chance to file his Amended Traverse.

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BACKGROUND1

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Petitioner is a California state prisoner serving a sentence of 17 years. A jury found him

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guilty of 15 counts of lewd acts upon a child under the age of 14, under Cal. Penal Code § 288(a)

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and six counts of contacting or communicating with a minor with the intent to commit a sex

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offense under Cal. Penal Code § 288.3(a). On direct appeal to the California Court of Appeal,

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petitioner raised seven claims as grounds for relief but did not raise his juror bias claim. The

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California Court of Appeal affirmed the conviction, People v. Garcia, No. H039212, 2014 WL

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3752799 (Cal. App. July 31, 2014) (Pet. Ex. 1), (Dkt. No. 1-1), and on October 15, 2014 the

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California Supreme Court denied review. People v. Garcia, No. S221105 (Cal. Oct. 15, 2014) (en

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United States District Court
Northern District of California

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banc) (Pet. Ex. 4), (Dkt. No. 1-1).
While his direct appeal was pending, petitioner filed for habeas relief in the California

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Court of Appeal, raising his juror bias claim for the first time along with three other claims that he

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had raised on direct appeal. The petition was denied without comment on July 31, 2014. In re

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Garcia, No. H040599 (Cal. App. July 31, 2014) (Pet. Ex. 2), (Dkt. No. 1-1).

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Petitioner filed a petition for habeas corpus with the California Supreme Court on

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September 29, 2014, raising only his juror bias claim and his related ineffective assistance of

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counsel claim as grounds for relief. The California Supreme Court denied the petition on

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December 17, 2014, stating only “The petition for writ of habeas corpus is denied” and citing

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People v. Duvall (1995) 9 Cal.4th 464, 474; and In re Dixon (1953) 41 Cal.2d 756, 759. See In re

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Garcia, No. S221537 (Cal. Dec. 17, 2014) (en banc) (Pet. Ex. 5), (Dkt. No. 1-1).

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Petitioner filed his petition for habeas corpus in federal court on September 29, 2015,

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raising all eight claims for relief that he had raised on direct appeal and in his state habeas

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petitions, including his juror bias claim. See Pet. (Dkt. No. 1). Respondent filed his answer on

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April 1, 2016. See Answer (Dkt. No. 14).

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My March 1, 2017 Order includes a detailed factual background of petitioner’s trial that I
will not repeat here. A more limited factual and procedural background relevant to the pending
motion for leave to amend follows.
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On May 31, 2016, the Supreme Court decided Johnson v. Lee, 136 S.Ct. 1802 (2016), in

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which it reversed a prior Ninth Circuit decision and held that California’s Dixon bar is a well-

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established and regularly followed state procedural bar that is adequate to bar federal habeas

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review. Lee, 136 S.Ct. at 1805.

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Petitioner filed his traverse on June 30, 2016. Traverse (Dkt. No. 22). I granted
petitioner’s request for an evidentiary hearing on his juror bias claim on March 1, 2017 and denied

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his remaining claims for habeas relief. See Dkt. No. 25. On March 14, 2017 I held a status

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conference with the parties to discuss the scheduling and briefing related to the evidentiary

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hearing. See Dkt. No. 28. At that hearing, counsel for respondent indicated her intent to file a

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motion for leave to file an Amended Answer to assert the affirmative defense that petitioner’s

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United States District Court
Northern District of California

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juror bias claim is procedurally barred under Dixon. She further requested leave to file a motion

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for reconsideration on the basis of the new Dixon claim and on the basis that I had not applied the

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proper AEDPA standard. I granted respondent leave to file a motion for reconsideration and

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respondent subsequently filed the pending motions.
LEGAL STANDARD

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Under Federal Rule of Civil Procedure 15(a)(2), a party may amend its pleading to add an

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affirmative defense with leave of court. “The court should freely give leave when justice so

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requires.” Fed. R. Civ. P. 15(a)(2). In assessing whether leave is appropriate, courts generally

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consider five factors: (1) bad faith; (2) undue delay; (3) prejudice to the opposing party; (4) futility

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of amendment; and (5) whether the moving party has previously amended its pleadings. Foman v.

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Davis, 371 U.S. 178, 182 (1962). “It is common practice to allow [parties] to amend their

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pleadings to accommodate changes in the law.” Doe I v. Nestle USA, Inc., 766 F.3d 1013, 1028

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(9th Cir. 2014).

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DISCUSSION

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Respondent asserts that leave to amend is appropriate because he could not assert his

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Dixon bar defense at the time he filed his original answer. Mot. for Leave at 3. He explains that

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under the prevailing Ninth Circuit precedent at the time, Dixon was not an adequate procedural

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bar. He argues that the Supreme Court’s decision in Lee, which reversed the Ninth Circuit’s
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ruling and established that Dixon is an adequate procedural bar, is a material change in the

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controlling law and justifies granting him leave to amend. Petitioner responds that (1) respondent

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was not diligent in moving for leave; (2) amendment would prejudice him; and (3) amendment

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would be futile. Leave Oppo. at 1 (Dkt. No. 32).

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A.

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Petitioner asserts that respondent unduly delayed in moving for leave because he waited

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more than nine months after the decision in Lee to seek leave to amend. Leave Oppo. at 3. He

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notes that the Ninth Circuit has held that “an eight month delay between the time of obtaining a

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relevant fact and seeking a leave to amend is unreasonable.” AmerisourceBergen Corp. v.

Undue Delay

Dialysist West, Inc., 465 F.3d 946, 953 (9th Cir. 2006). He argues that respondent could have

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Northern District of California

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moved for leave before the traverse was filed, in the eight months between when the traverse was

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filed and when I ruled on the petition, and in the joint statement the parties filed before the case

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management conference held on March 14, 2017 but failed to do so.

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Respondent answers that he raised the issue at the earliest practicable time, given the

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constraints placed on the California Attorney General’s Office and the number of habeas

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proceedings in which the office is currently involved. Leave Reply at 2 (Dkt. No. 36). He asserts

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that it was not feasible for the Attorney General’s Office to identify this issue during the

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intervening nine months, which would have required “[c]ombing through its vast caseload to

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search for cases in which to raise a procedural default defense based on the Dixon bar,” and that,

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given the constraints on the office, it “raise[s] issues such as these as they come up, be it at the

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next briefing opportunity, the next court appearance, or upon review of a court decision.” Id.

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Given the numerous habeas cases in which the California Attorney General’s Office is

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involved and its limited resources as a government agency, I conclude that respondent did not

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unduly delay in bringing this motion for leave and instead raised it at the earliest time that it

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realistically could.

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B.

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Petitioner asserts that he would be prejudiced by amendment because respondent’s new

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Prejudice to Petitioner

claim would require him to prepare an additional defense, delay the proceedings, and require
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petitioner to incur additional litigation expenses. Leave Oppo. at 5. He points to Morongo Band

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of Mission Indians v. Rose, 893 F.2d 1074, 1079 (9th Cir. 1990), in which the Ninth Circuit upheld

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a district court’s decision to deny leave to permit a plaintiff to add new claims that “would have

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greatly altered the nature of the litigation and would have required defendants to have undertaken,

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at a late hour, an entirely new course of defense.” He asserts that procedural default rules are an

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“endless morass” of confusing and conflicting rules that can delay litigation for years and

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highlights that, if I were to conclude that respondent’s procedural default claim applies, he would

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have to prepare additional arguments explaining why petitioner can nevertheless overcome the

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procedural bar. Leave Oppo. at 5.

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While it appears that amendment would result in some prejudice to petitioner, it would not

United States District Court
Northern District of California

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“greatly alter[]” the nature of these proceedings. Unlike the plaintiffs in Rose, respondent does not

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seek to add new and substantively different claims, but to assert a procedural bar defense that it

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previously could not assert under, now-reversed Ninth Circuit precedent. In Lee, the Supreme

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Court held that Dixon is an adequate procedural bar that was firmly established and regularly

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followed at the time of Lee’s 1999 procedural default. Lee, 136 S. Ct. at 1805. Based on the

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Court’s holding in Lee, the Dixon bar must also have been well-established during all of

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petitioner’s proceedings which began over a decade after Lee’s. Accordingly, petitioner should

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have been aware of a possible Dixon bar claim prior to and during the entire pendency of his

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proceedings. The assertion of the Dixon bar now does not fundamentally change the nature of

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these proceedings even though respondent did not assert it in his original Answer.

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While the addition of a new defense may cause some delay in these proceedings and, if

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applicable, will require petitioner to prepare additional responses, this prejudice is relatively

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minimal. The financial burden to petitioner is also minimal as he is being represented by court

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appointed counsel. Leave to amend will not cause undue prejudice to petitioner.

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C.

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Finally, petitioner asserts that amendment would be futile. He argues that the Dixon bar

Futility

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does not apply to his juror bias claim because the California Supreme Court’s decision, which

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cited both Dixon and Duvall and resolved both petitioner’s juror bias and related ineffective
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assistance claims, was ambiguous because it did not make clear which case it intended to apply to

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which claim. The parties agree that a citation to Duvall reflects a decision on the merits and is not

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a procedural bar. Given the ambiguity, and given that Duvall reflects a merits decision, petitioner

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asserts that I should presume that there was no procedural bar. See Colman v. Thompson, 501

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U.S. 722, 33 (1991). Respondent acknowledges some ambiguity in the state court decision but

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asserts that this ambiguity can be resolved.

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While petitioner has raised a plausible argument that the Dixon bar does not apply to his

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juror bias claim, respondent’s Dixon bar defense is not futile on its face. If Dixon does apply, it

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would preclude federal review of petitioner’s juror bias claim unless he can demonstrate cause and
prejudice. Given the potentially dispositive effect of the Dixon bar claim, and its facial

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Northern District of California

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plausibility, I conclude that the claim is not clearly futile so as to preclude amendment.

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Respondent should be permitted to amend his answer to add this affirmative defense. The merits

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of respondent’s Dixon bar argument, and petitioner’s arguments against it, are more appropriately

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addressed in resolving respondent’s motion for reconsideration.
CONCLUSION

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Respondent did not unduly delay in seeking leave to amend, amendment would not unduly

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prejudice petitioner, and respondent’s Dixon bar claim is not clearly futile. As courts “should

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freely give leave when justice so requires,” Fed. R. Civ. P. 15(a)(2), respondent’s motion for leave

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to file his Amended Answer is GRANTED. Petitioner will have 30 days from the date of this

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order to file an Amended Traverse.

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IT IS SO ORDERED.
Dated: June 15, 2017

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William H. Orrick
United States District Judge

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