Romero v. Paramo et al

Filing 61

ORDER Granting Petitioner's 55 Motion for Leave to File Amended Petition. Signed by Judge Gonzalo P. Curiel on 8/29/17. (All non-registered users served via U.S. Mail Service)(dlg)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 WILLIAM VINCENT ROMERO, Case No.: 3:14-CV-01284-GPC-BLM Plaintiff, 12 13 v. 14 ORDER GRANTING PETITIONER’S MOTION FOR LEAVE TO FILE AMENDED PETITION DANIEL PARAMO, Defendant. 15 [Dkt. No. 55] 16 17 18 INTRODUCTION 19 Petitioner William Vincent Romero, proceeding pro se, filed a motion for leave to 20 file an Amended Petition for Writ of Habeas Corpus. In it, he asks the Court to add five 21 newly-exhausted claims to his original petition which contained a single habeas claim. 22 Based on the reasoning below, the Court GRANTS the motion for leave to file an 23 amended petition. 24 25 PROCEDURAL BACKGROUND On May 20, 2014, Petitioner William Vincent Romero (“Petitioner”), proceeding 26 pro se and in forma pauperis, filed his Petition for Writ of Habeas Corpus (“Petition”) in 27 federal court. Dkt. No. 1. The original Petition challenges Petitioner’s second degree 28 murder conviction as being based upon “insufficient evidence to support implied malice.” 1 3:14-CV-0284-GPC-BLM 1 Id. at 6. There has never been any dispute that this original habeas claim was exhausted 2 in state courts. See Dkt. No. 45 at 1. 3 On June 14, 2014, Petitioner filed a motion to stay and abey the federal 4 proceedings while Petitioner exhausted new claims in state court. Dkt. No. 14. While 5 that motion was still pending before the district court, but after U.S. Magistrate Judge 6 Barbara Major issued a Report and Recommendation denying Petitioner’s request for 7 stay, Petitioner filed a request for an extension of time to object to the Report and 8 Recommendation. Dkt. No. 40. In the request, Petitioner explained that he was currently 9 litigating his habeas case in state court and that he had an evidentiary hearing scheduled 10 in the near future. Id. at 3. Upon consideration of the new information provided by 11 Petitioner, the Magistrate Judge altered her Report and Recommendation and concluded 12 that Petitioner’s request for stay should be granted under Kelly v. Small, 315 F.3d 1063 13 (9th Cir. 2003). 14 On August 5, 2015, this Court stayed Petitioner’s case pursuant to Kelly v. Small. 15 Dkt. No. 45. A stay under Kelly requires a Petitioner to comply with a three-step 16 procedure. Under Kelly, a district court may allow a petitioner to: (1) delete unexhausted 17 claims from a mixed habeas petition — that is a habeas petition with exhausted and 18 unexhausted claims; (2) seek state court remedies for the unexhausted claims while the 19 district court stays the fully exhausted petition; and (3) add newly exhausted claims back 20 onto the federal petition once state courts have had a chance to rule on them. King v. 21 Ryan, 564 F.3d 1133, 1135 (9th Cir. 2009). In the August 5, 2015 order, the Court 22 indicated that Petitioner could continue to litigate his claims pending in state court and 23 that he could move to amend the claims after he exhausted them. The Court warned 24 Petitioner, however, that any amended claim must “relate back” to the exhausted claims 25 in the original habeas petition. Id. at 1140-41. 26 On Feburary 2, 2017, this Court issued an order to show because why Petitioner’s 27 case should not be dismissed for failure to amend. Dkt. No. 53. In it, the Court observed 28 that publicly available information indicated that the California Supreme Court had 2 3:14-CV-0284-GPC-BLM 1 denied Petitioner a habeas petition on February 18, 2016 and on August 10, 2016. Id. 2 Accordingly, and since Petitioner had yet to file an amended petition, the Court ordered 3 Petitioner to show cause, by March 2, 2017, why he had yet to amend his habeas petition. 4 Id. 5 On March 9, 2017, nunc pro tunc March 3, 2017, Petitioner filed a motion to 6 amend his habeas petition. Dkt. No. 55. In it, he moved to add five grounds to his 7 original exhausted habeas petition. Specifically, he moved to amend the following 8 claims: (a) Ineffective assistance of counsel, “failure to investigate”; (b) Procedural error, 9 “speedy trial rights”; (c) Structural error, “due process rights”; (d) Ineffective assistance 10 of counsel, “right to testify” and “failure to inform”; and (e) actual innocence. Id. at 17. 11 Respondent filed an opposition on April 12, 2017. Respondent argues that the 12 Court should not grant Petitioner leave to amend because his five new claims do not 13 relate back under AEDPA or, in the alternative, that they are procedurally barred. Id. 14 Petitioner filed a reply on May 1, 2017. Dkt. No. 60. 15 LEGAL STANDARD 16 A petition for a writ of habeas corpus “may be amended or supplemented as 17 provided in the rules of procedure applicable to civil actions.” 28 U.S.C. § 2242. Under 18 Fed. R. Civ. P. 15, courts should give leave to amend freely “when justice so requires.” 19 When ruling on a motion to amend, the Ninth Circuit has “repeatedly stressed that the 20 court must remain guided by the underlying purpose of rule 15,” that is, “to facilitate 21 decisions on the merits, rather than on the pleadings.” Nunes v. Ashcroft, 375 F.3d 805, 22 808 (9th Cir. 2003) (internal quotation omitted). However, a court may deny a motion to 23 amend if it is made in bad faith, there was undue delay, prejudice would result to the 24 opposing party, amendment would be futile, or amendment would delay the proceeding. 25 See Foman v. Davis, 371 U.S. 178, 182 (1962); Nunes, 375 F.3d at 808. Futility alone is 26 a sufficient basis for denying a motion to amend. Novak v. United States, 795 F.3d 1012, 27 1020 (9th Cir. 2015). “Absent prejudice, or a strong showing of any of the remaining 28 3 3:14-CV-0284-GPC-BLM 1 Foman factors[,]” however, “there exists a presumption under Rule 15(a) in favor of 2 granting leave to amend.”) (emphasis in original). 3 DISCUSSION 4 Respondent argues that amendment is inappropriate because Petitioner’s amended 5 claims are futile. Dkt. No. 58. Specifically, Respondent argues that amendment would 6 be futile because Petitioner’s amended claims do not relate back to the original exhausted 7 claim and because, timeliness notwithstanding, the five new claims are procedurally 8 barred under California law. 9 A habeas petitioner may amend a new claim into a pending federal habeas petition 10 after the expiration of the limitations period only if the new claim shares a “common core 11 of operative facts” with the claims in the pending petition. Mayle v. Felix, 545 U.S. 644, 12 646 (2005). “[A] new claim,” however “does not ‘relate back’ to the filing of an 13 exhausted petition simply because it arises from ‘the same trial, conviction, or sentence.’” 14 King, 564 F.3d at 114. Stated differently, a claim does not relate back “when it asserts a 15 new ground for relief supported by facts that differ in both time and type from those the 16 original pleading set forth.” Hebner v. McGrath, 543 F.3d 1133, 1138 (9th Cir. 2008). 17 Respondent contends in conclusory fashion that “Romero’s proposed new claims 18 of alleged ineffective assistance of counsel, speedy trial violation, delay of filing of the 19 information, and actual innocence do not share a ‘common core of operative facts’ with 20 the sufficiency-of-the-evidence claim set forth in the original pleading.” Dkt. No. 58 at 21 12. Accordingly, Respondent avers, “the new claims differ in both time and type from 22 the previously advanced timely claim.” Id. Petitioner, in turn, rebuts this by arguing, in 23 his reply brief, that the amended claims assert constitutional violations that arise out of 24 the same facts underlying the “sufficiency-of-the evidence” claim. See Dkt. No. 60 at 8. 25 Given that Respondent bears the burden of demonstrating futility under Fed. R. 26 Civ. P. 15(a), see DCD Programs, Ltd. v. Leighton, 833 F.2d 183, 187 (9th Cir. 1987), 27 and the Ninth Circuit’s recognition that pro se-plaintiff claims should be dismissed “only 28 where it appears beyond a doubt that the plaintiff can prove not set of facts in support of 4 3:14-CV-0284-GPC-BLM 1 his claim which would entitled him to relief,” see Franklin v. Murphy, 745 F.2d 1221, 2 1228 (9th Cir. 1984), the Court concludes that Respondent has failed to demonstrate that 3 Petitioner’s putative amended claims do not relate back to the original claims. The bare 4 assertion that Petitioner’s additional claims do not share a “common core of operative 5 facts” is not enough to show futility under the liberal Fed. R. Civ. P 15(a) standard or 6 udner the relation-back doctrine. Accordingly, the Court rejects without prejudice 7 Respondent’s argument that these claims do not relate back. To the extent Respondent 8 wishes to challenge the “common core of operative facts” in a future filing, Respondent 9 must explain why the facts underlying each of the newly added claims differ in “time and 10 11 type” from the facts underlying Petitioner’s “sufficiency of the evidence” claim. As to Respondent’s second argument — that is, that Petitioner’s putative amended 12 claims are futile because they are procedurally barred — the Court finds it premature to 13 resolve this issue at this time. In the Court’s August 5, 2015 order staying the case 14 pursuant to Kelly v. Small, the Court stated that Petitioner could amend his stayed habeas 15 petition if the claims he sought to amend “relate back” to the original claim. Petitioner 16 has since followed the procedure outlined by the Court pursuant to Kelly v. Small. He 17 exhausted his state court remedies and has since sought to amend those exhausted claims 18 to his stayed petition. As such, and in light of the fact that Respondent has failed to 19 effectively argue that Petitioner’s amended claims do not “relate back” to the original 20 claim, the Court concludes that the interests of justice are best served by allowing 21 Petitioner to amend his newly exhausted claims. See Day v. McDonough, 547 U.S. 198, 22 209 (2006) (recognizing that district courts may, in certain cases, exercise discretion to 23 decide whether justice is better served by dismissing the case on procedural grounds or 24 by reaching the merits of the petition). Respondent is free to reassert the argument that 25 Petitioner’s claims are procedurally barred in briefing dedicated to that issue. See 26 Velasco v. SEI Pharms, Inc., 2013 U.S. Dist. LEXIS 10505, at *4-5 (S.D. Cal. Jan. 25, 27 2013) (deferring consideration of respondent’s argument that the amended habeas claims 28 were “futile” until after the amended pleading is filed). Once such a motion has been 5 3:14-CV-0284-GPC-BLM 1 filed and briefing submitted, the Court will be in a position to fully evaluate the parties’ 2 positions. See Day, 547 U.S. at 210 (“a court must accord the parties fair notice and an 3 opportunity to present their positions” before “acting on its own initiative” as to 4 timeliness). 5 CONCLUSION 6 Petitioner’s motion to amend his habeas petition pursuant to the Court’s August 15, 7 2015 Order granting a stay pursuant to Kelly v. Small is GRANTED. The motion is 8 granted without prejudice as to any argument that the amended claims are barred on 9 timeliness or other procedural grounds. 10 IT IS SO ORDERED. 11 12 Dated: August 29, 2017 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 6 3:14-CV-0284-GPC-BLM

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