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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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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WILLIAM VINCENT ROMERO,

Case No.: 3:14-CV-01284-GPC-BLM

Plaintiff,

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v.

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ORDER GRANTING PETITIONER’S
MOTION FOR LEAVE TO FILE
AMENDED PETITION

DANIEL PARAMO,
Defendant.

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[Dkt. No. 55]

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INTRODUCTION

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Petitioner William Vincent Romero, proceeding pro se, filed a motion for leave to

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file an Amended Petition for Writ of Habeas Corpus. In it, he asks the Court to add five

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newly-exhausted claims to his original petition which contained a single habeas claim.

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Based on the reasoning below, the Court GRANTS the motion for leave to file an

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amended petition.

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PROCEDURAL BACKGROUND
On May 20, 2014, Petitioner William Vincent Romero (“Petitioner”), proceeding

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pro se and in forma pauperis, filed his Petition for Writ of Habeas Corpus (“Petition”) in

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federal court. Dkt. No. 1. The original Petition challenges Petitioner’s second degree

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murder conviction as being based upon “insufficient evidence to support implied malice.”
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Id. at 6. There has never been any dispute that this original habeas claim was exhausted

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in state courts. See Dkt. No. 45 at 1.

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On June 14, 2014, Petitioner filed a motion to stay and abey the federal

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proceedings while Petitioner exhausted new claims in state court. Dkt. No. 14. While

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that motion was still pending before the district court, but after U.S. Magistrate Judge

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Barbara Major issued a Report and Recommendation denying Petitioner’s request for

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stay, Petitioner filed a request for an extension of time to object to the Report and

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Recommendation. Dkt. No. 40. In the request, Petitioner explained that he was currently

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litigating his habeas case in state court and that he had an evidentiary hearing scheduled

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in the near future. Id. at 3. Upon consideration of the new information provided by

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Petitioner, the Magistrate Judge altered her Report and Recommendation and concluded

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that Petitioner’s request for stay should be granted under Kelly v. Small, 315 F.3d 1063

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(9th Cir. 2003).

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On August 5, 2015, this Court stayed Petitioner’s case pursuant to Kelly v. Small.

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Dkt. No. 45. A stay under Kelly requires a Petitioner to comply with a three-step

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procedure. Under Kelly, a district court may allow a petitioner to: (1) delete unexhausted

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claims from a mixed habeas petition — that is a habeas petition with exhausted and

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unexhausted claims; (2) seek state court remedies for the unexhausted claims while the

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district court stays the fully exhausted petition; and (3) add newly exhausted claims back

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onto the federal petition once state courts have had a chance to rule on them. King v.

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Ryan, 564 F.3d 1133, 1135 (9th Cir. 2009). In the August 5, 2015 order, the Court

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indicated that Petitioner could continue to litigate his claims pending in state court and

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that he could move to amend the claims after he exhausted them. The Court warned

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Petitioner, however, that any amended claim must “relate back” to the exhausted claims

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in the original habeas petition. Id. at 1140-41.

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On Feburary 2, 2017, this Court issued an order to show because why Petitioner’s

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case should not be dismissed for failure to amend. Dkt. No. 53. In it, the Court observed

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that publicly available information indicated that the California Supreme Court had
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denied Petitioner a habeas petition on February 18, 2016 and on August 10, 2016. Id.

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Accordingly, and since Petitioner had yet to file an amended petition, the Court ordered

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Petitioner to show cause, by March 2, 2017, why he had yet to amend his habeas petition.

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Id.

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On March 9, 2017, nunc pro tunc March 3, 2017, Petitioner filed a motion to

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amend his habeas petition. Dkt. No. 55. In it, he moved to add five grounds to his

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original exhausted habeas petition. Specifically, he moved to amend the following

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claims: (a) Ineffective assistance of counsel, “failure to investigate”; (b) Procedural error,

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“speedy trial rights”; (c) Structural error, “due process rights”; (d) Ineffective assistance

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of counsel, “right to testify” and “failure to inform”; and (e) actual innocence. Id. at 17.

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Respondent filed an opposition on April 12, 2017. Respondent argues that the

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Court should not grant Petitioner leave to amend because his five new claims do not

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relate back under AEDPA or, in the alternative, that they are procedurally barred. Id.

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Petitioner filed a reply on May 1, 2017. Dkt. No. 60.

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LEGAL STANDARD

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A petition for a writ of habeas corpus “may be amended or supplemented as

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provided in the rules of procedure applicable to civil actions.” 28 U.S.C. § 2242. Under

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Fed. R. Civ. P. 15, courts should give leave to amend freely “when justice so requires.”

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When ruling on a motion to amend, the Ninth Circuit has “repeatedly stressed that the

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court must remain guided by the underlying purpose of rule 15,” that is, “to facilitate

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decisions on the merits, rather than on the pleadings.” Nunes v. Ashcroft, 375 F.3d 805,

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808 (9th Cir. 2003) (internal quotation omitted). However, a court may deny a motion to

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amend if it is made in bad faith, there was undue delay, prejudice would result to the

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opposing party, amendment would be futile, or amendment would delay the proceeding.

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See Foman v. Davis, 371 U.S. 178, 182 (1962); Nunes, 375 F.3d at 808. Futility alone is

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a sufficient basis for denying a motion to amend. Novak v. United States, 795 F.3d 1012,

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1020 (9th Cir. 2015). “Absent prejudice, or a strong showing of any of the remaining

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Foman factors[,]” however, “there exists a presumption under Rule 15(a) in favor of

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granting leave to amend.”) (emphasis in original).

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DISCUSSION

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Respondent argues that amendment is inappropriate because Petitioner’s amended

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claims are futile. Dkt. No. 58. Specifically, Respondent argues that amendment would

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be futile because Petitioner’s amended claims do not relate back to the original exhausted

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claim and because, timeliness notwithstanding, the five new claims are procedurally

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barred under California law.

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A habeas petitioner may amend a new claim into a pending federal habeas petition

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after the expiration of the limitations period only if the new claim shares a “common core

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of operative facts” with the claims in the pending petition. Mayle v. Felix, 545 U.S. 644,

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646 (2005). “[A] new claim,” however “does not ‘relate back’ to the filing of an

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exhausted petition simply because it arises from ‘the same trial, conviction, or sentence.’”

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King, 564 F.3d at 114. Stated differently, a claim does not relate back “when it asserts a

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

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original pleading set forth.” Hebner v. McGrath, 543 F.3d 1133, 1138 (9th Cir. 2008).

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Respondent contends in conclusory fashion that “Romero’s proposed new claims

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of alleged ineffective assistance of counsel, speedy trial violation, delay of filing of the

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information, and actual innocence do not share a ‘common core of operative facts’ with

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the sufficiency-of-the-evidence claim set forth in the original pleading.” Dkt. No. 58 at

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12. Accordingly, Respondent avers, “the new claims differ in both time and type from

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the previously advanced timely claim.” Id. Petitioner, in turn, rebuts this by arguing, in

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his reply brief, that the amended claims assert constitutional violations that arise out of

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the same facts underlying the “sufficiency-of-the evidence” claim. See Dkt. No. 60 at 8.

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Given that Respondent bears the burden of demonstrating futility under Fed. R.

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Civ. P. 15(a), see DCD Programs, Ltd. v. Leighton, 833 F.2d 183, 187 (9th Cir. 1987),

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and the Ninth Circuit’s recognition that pro se-plaintiff claims should be dismissed “only

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where it appears beyond a doubt that the plaintiff can prove not set of facts in support of
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his claim which would entitled him to relief,” see Franklin v. Murphy, 745 F.2d 1221,

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1228 (9th Cir. 1984), the Court concludes that Respondent has failed to demonstrate that

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Petitioner’s putative amended claims do not relate back to the original claims. The bare

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assertion that Petitioner’s additional claims do not share a “common core of operative

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facts” is not enough to show futility under the liberal Fed. R. Civ. P 15(a) standard or

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udner the relation-back doctrine. Accordingly, the Court rejects without prejudice

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Respondent’s argument that these claims do not relate back. To the extent Respondent

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wishes to challenge the “common core of operative facts” in a future filing, Respondent

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must explain why the facts underlying each of the newly added claims differ in “time and

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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

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claims are futile because they are procedurally barred — the Court finds it premature to

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resolve this issue at this time. In the Court’s August 5, 2015 order staying the case

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pursuant to Kelly v. Small, the Court stated that Petitioner could amend his stayed habeas

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petition if the claims he sought to amend “relate back” to the original claim. Petitioner

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has since followed the procedure outlined by the Court pursuant to Kelly v. Small. He

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exhausted his state court remedies and has since sought to amend those exhausted claims

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to his stayed petition. As such, and in light of the fact that Respondent has failed to

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effectively argue that Petitioner’s amended claims do not “relate back” to the original

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claim, the Court concludes that the interests of justice are best served by allowing

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Petitioner to amend his newly exhausted claims. See Day v. McDonough, 547 U.S. 198,

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209 (2006) (recognizing that district courts may, in certain cases, exercise discretion to

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decide whether justice is better served by dismissing the case on procedural grounds or

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by reaching the merits of the petition). Respondent is free to reassert the argument that

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Petitioner’s claims are procedurally barred in briefing dedicated to that issue. See

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Velasco v. SEI Pharms, Inc., 2013 U.S. Dist. LEXIS 10505, at *4-5 (S.D. Cal. Jan. 25,

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2013) (deferring consideration of respondent’s argument that the amended habeas claims

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were “futile” until after the amended pleading is filed). Once such a motion has been
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filed and briefing submitted, the Court will be in a position to fully evaluate the parties’

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positions. See Day, 547 U.S. at 210 (“a court must accord the parties fair notice and an

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opportunity to present their positions” before “acting on its own initiative” as to

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timeliness).

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CONCLUSION

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Petitioner’s motion to amend his habeas petition pursuant to the Court’s August 15,

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2015 Order granting a stay pursuant to Kelly v. Small is GRANTED. The motion is

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granted without prejudice as to any argument that the amended claims are barred on

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timeliness or other procedural grounds.

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IT IS SO ORDERED.

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Dated: August 29, 2017

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