Ellawendy v. Monterey County Superior Court

Filing 25

ORDER DENYING LEAVE TO FILE AMENDED PETITION; LIFTING STAY ON BRIEFING; SETTING DEADLINE FOR PETITIONERS TRAVERSE. Signed by Judge Beth Labson Freeman on 5/9/2022. Traverse due by 6/20/2022. (tsh, COURT STAFF) (Filed on 5/9/2022)Any non-CM/ECF Participants have been served by First Class Mail to the addresses of record listed on the Notice of Electronic Filing (NEF)

Case 5:20-cv-02708-BLF Document 25 Filed 05/09/22 Page 1 of 6

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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United States District Court
Northern District of California

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ABDELFATAH ELLAWENDY,
Petitioner,
v.

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MONTEREY COUNTY SUPERIOR
COURT,
Respondent.

Case No. 20-02708 BLF (PR)
ORDER DENYING LEAVE TO FILE
AMENDED PETITION; LIFTING
STAY ON BRIEFING; SETTING
DEADLINE FOR PETITIONER’S
TRAVERSE
(Docket No. 15)

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Petitioner, a state parolee, filed a pro se petition for a writ of habeas corpus under

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28 U.S.C. § 2254 challenging his 2019 state conviction out of Monterey County, which

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involved charges for stalking, several counts of assault, and dissuading a witness from

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testifying. Dkt. No. 1; Dkt. No. 12-1 at 1-2. Pursuant to a negotiated plea, Petitioner

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pleaded no contest to one count of assault with a deadly weapon, agreeing to serve no

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more than two years; the trial court sentenced him to two years in state prison. Dkt. No.

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12-1 at 2. The Court found the only cognizable claim in the petition was the claim

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challenging the voluntary nature of Petitioner’s plea and dismissed all other claims;

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Respondent was directed to show cause why the petition should not be granted. Dkt. No.

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6. On January 27, 2021, Respondent filed an answer on the merits, Dkt. No. 12-1.

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Nearly six months later on July 8, 2021, Petitioner filed a document entitled

Case 5:20-cv-02708-BLF Document 25 Filed 05/09/22 Page 2 of 6

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“petition for a writ of habeas corpus,” which the Court construed as a motion for leave to

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file an amended petition. Dkt. No. 15. The Court directed Respondent to file an

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opposition or statement of non-opposition to the motion and stayed briefing on

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Respondent’s answer. Dkt. No. 16. Respondent filed an opposition, Dkt. No. 17, and

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Petitioner filed a reply, Dkt. No. 23.

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DISCUSSION

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A.

Leave to Amend
The Civil Rule governing pleading amendments, Federal Rule of Civil Procedure

15, made applicable to habeas proceedings by 28 U.S.C. § 2242, Federal Rule of Civil

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United States District Court
Northern District of California

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Procedure 81(a)(2), and Habeas Corpus Rule 11, allows amendments with leave of court

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any time during a proceeding. Mayle v, Felix, 545 U.S. 644, 654-55 (2005) (citing Fed. R.

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Civ. P. 15(a)). Before a responsive pleading is served, pleadings may be amended once as

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a matter of course, i.e., without seeking court leave. Id. at 655. Here, Petitioner filed his

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proposed amended petition ten months after the Court ordered the matter served on

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Respondent. Dkt. No. 6. Accordingly, Petitioner must obtain leave of court to proceed

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with his amended petition.

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Rule 15 applies to amendments to habeas answers as well. See Waldrip v. Hall, 548

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F.3d 729, 731-33 (9th Cir. 2008). Public policy strongly encourages courts to permit

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amendments. Id. at 731. In reviewing whether a grant of leave to amend was an abuse of

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discretion, the appellate court “‘often consider[s] . . . bad faith, undue delay, prejudice to

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the opposing party, futility of the amendment, and whether the party has previously

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amended his pleadings.’” Id. 732 (quoting Bonin v. Calderon, 59 F.3d 815, 845 (9th Cir.

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1995)); see, e.g., id. at 732-33 (no undue delay when state’s motion to amend answer to

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assert untimeliness defense was only filed after United States Supreme Court decision

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made clear that Ninth Circuit authority was incorrect).

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An amendment made after AEDPA’s one-year statute of limitations has run relates
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back to the date of the original pleading when the amendment “asserts one or more claims

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that arise out of ‘the conduct, transaction, or occurrence’ that the original petition “set out”

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or “attempted to . . . set out.” Ross v. Williams, 950 F.3d 1160, 1167 (9th Cir. 2020) (en

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banc) (quoting Fed. R. Civ. P. 15(c)(1)(B)). “An amended habeas petition . . . does not

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relate back (and thereby escape AEDPA’s one-year time limit) when it asserts a new

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ground for relief supported by facts that differ in both time and type from those the original

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pleading set forth.” Mayle, 545 U.S. at 650 (finding that new coerced confession claim did

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not relate back to the original petition that raised only a factually distinct Confrontation

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Clause claim). Only if the original and amended petition state claims that are tied to a
common core of operative facts will relation back be in order. Id. at 664. “[F]or all

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United States District Court
Northern District of California

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purposes,” including relation back, the original petition consists of the petition itself and

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any “written instrument[s]” that are exhibits to the petition. Ross, 950 F.3d at 1167

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(quoting Fed. R. Civ. P. 10(c)) (specifying that, “[l]ike a brief, a court decision is a written

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instrument” and holding that state appellate court’s order, attached to timely petition, was

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incorporated by reference for relation back purposes).

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In the original petition, Petitioner claimed the following: (1) invalid plea which was

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made under duress and not voluntarily; (2) racial and gender bias by the police,

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prosecution, and trial judge; (3) new evidence which was not available at the time of

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judgment, including perjury by the witness; and (4) violation of his rights under the Sixth

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and Fourteenth Amendments based on the witness lying under oath, no interpreter was

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provided at the signing of the plea, and police fabricated evidence, among other

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allegations. Dkt. No. 1 at 6-7. Petitioner was advised that a defendant who pleads guilty

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cannot later raise in habeas corpus proceedings independent claims relating to the

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deprivation of constitutional rights that occurred before the plea of guilty. Dkt. No. 6 at 3,

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citing Haring v. Prosise, 462 U.S. 306, 3019-20 (1983) (guilty plea foreclose consideration

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of pre-plea constitutional deprivation); Tollett v. Henderson, 411 U.S. 258, 266-67 (1973)

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(same). The only challenges left open in federal habeas corpus after a guilty plea is the

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voluntary and intelligent character of the plea and the nature of the advice of counsel to

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plead. Id. citing Hill v. Lockhart, 474 U.S. 52, 56-57 (1985); Tollett, 411 U.S. at 267.

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Accordingly, the Court found the first claim that his plea was made under duress was

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cognizable and dismissed claims 2, 3, and 4 which related to the deprivation of

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constitutional rights that occurred before the guilty plea. Id.

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In the amended petition, Petitioner raises additional grounds challenging the

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voluntary nature of his plea based on counsel’s deficient advice. Dkt. No. 15 at 1.

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Petitioner also claims prosecutorial misconduct, bias by the trial judge, and new evidence.

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Id. In opposition, Respondent asserts the amendment should be denied because Petitioner
fails to explain any reason for the lengthy delay and his failure to add the allegations

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United States District Court
Northern District of California

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originally. Dkt. No. 17 at 2. Respondent also points out that the amended petition

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includes the same claims that were already dismissed by the Court. Id. Furthermore,

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Respondent asserts that the proffered amendments with respect to Plaintiff’s plea adds

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nothing beyond what was already discussed in their answer. Id. at 3. Lastly, Respondent

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asserts that the amendment would be futile as to all of Petitioner’s claims because they

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involve allegations of out-of-court, and thus off-record events, which have no support in

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the appellate record; and since the Court’s review is limited to the record before the state

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court, Petitioner’s allegations were reasonably rejected by the state court as unsupported.

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Id. In reply, Petitioner asserts that he is self-representing and therefore needs more time to

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review the law. Dkt. No. 23 at 1. He also repeats his allegations regarding misconduct by

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the district attorney, the witness who lied under oath, bias and racism by the judge, and the

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involuntary nature of his plea. Id. at 2-4. Petitioner asserts that he is innocent and desires

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to “disclose the corruption and abuse by some law enforcement members.” Id. at 4.

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After carefully reviewing the papers, in exercising its discretion, the Court declines

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to permit an amendment at such a late stage in the proceedings. The Court dismissed the

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non-cognizable claims and directed Respondent to answer on the remaining claim on

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September 8, 2020. Dkt. No. 6. Petitioner did nothing to challenge that ruling. Rather,

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ten months later, he filed an amended petition on July 8, 2021, which again includes the

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same claims which the Court dismissed from the original petition. Dkt. No. 15.

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Meanwhile, Respondent filed an answer on the merits on January 27, 2021. Dkt. No. 12.

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Petitioner’s traverse was due 30 days thereafter, but he filed nothing until April 14, 2021,

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when he filed an “amended complaint.” Dkt. No. 13. Then nearly three months later, he

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filed the amended petition. Dkt. No. 15. Petitioner provides no explanation for the undue

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delay in attempting to amend his pleading to include additional grounds for challenging his

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plea.
Furthermore, permitting the amendment would be futile. First of all, the

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amendment runs afoul of AEDPA’s one-year statute of limitations period. Petitioner’s

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United States District Court
Northern District of California

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direct appeal denied by the California Supreme Court on March 18, 2020. Dkt. No. 12-1 at

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2, Ex. G. Therefore, Petitioner had until March 18, 2021, to file a timely petition.

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Petitioner filed the amended petition on April 14, 2021, after the limitations period

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expired. Although the new claims in the amended petition challenging his plea could

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relate back and be timely as they are tied to a common core of operative facts as the

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cognizable claim, Mayle, 545 U.S. at 664, Petitioner would still have to exhaust those new

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claims in state court before he can raise them in the instant federal habeas action. He

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clearly has not. The result is a mixed petition which would be subject to dismissal. See

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Rose v. Lundy, 455 U.S. 509, 522 (1982). Although the Court has discretion to stay a

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mixed petition under Rhines v. Weber, 544 U.S. 269 (2005), it is only appropriate where

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the district court has first determined that there was good cause for the petitioner’s failure

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to exhaust the claims in state court and that the claims are potentially meritorious. Id. at

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277. Here, Petitioner has provided no explanation for the delay in filing an amended

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petition or why he did not raise these claims sooner. Accordingly, the Court is not inclined

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to exercise its discretion and entertain a motion for a stay under Rhines at this late stage in

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the proceedings.

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Lastly, Petitioner does not argue that the non-cognizable claims, those not related to
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Case 5:20-cv-02708-BLF Document 25 Filed 05/09/22 Page 6 of 6

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the nature of his plea, were improperly dismissed at the outset, and the Court finds no error

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in its ruling. Accordingly, Petitioner’s motion for leave to amend is DENIED.

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CONCLUSION

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For the foregoing reasons, the Court orders as follows:

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1.

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Petitioner’s motion for leave to file an amended petition is DENIED. The

amended petition under Docket No. 15 shall be STRICKEN.
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The stay of briefing on Respondent’s answer, Dkt. No. 12, is hereby

LIFTED. If Petitioner wishes to respond to the answer, he shall do so by filing a traverse
with the Court and serving it on Respondent within forty-two (42) days from the date this

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United States District Court
Northern District of California

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order is filed.

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The matter will be deemed submitted as of the date Petitioner’s traverse is due.

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IT IS SO ORDERED.

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Dated: __May 9, 2022____________

________________________
BETH LABSON FREEMAN
United States District Judge

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Order Denying Leave to Amend; Briefing
PRO-SE\BLF\HC.20\02708Ellawendy_deny.lta

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