Robinson v. Sabatka-Rine

Filing 38

ORDER - The petitioner's Motion for Leave to File Amended Petition for Writ of Habeas Corpus (Filing No. 33 ) is granted. The petitioner shall have until February 27, 2015, to file the Amended Petition. The respondent's Objection to Motion to File Second Amended Petition (Filing No. 35 ) is overruled. Ordered by Magistrate Judge Thomas D. Thalken. (NMW)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA

EDWARD ROBINSON, JR.,
Petitioner,

8:13CV197

vs.
ORDER
DIANE SABATKA-RINE, Warden of
Nebraska State Penitentiary,
Respondent.
This matter is before the court on the petitioner’s Motion for Leave to File
Amended Petition for Writ of Habeas Corpus (Filing No. 33). The petitioner filed a brief
(Filing No. 34) in support of the motion. The respondent filed an objection (Filing No.
35) and a brief (Filing No. 36), with evidence attached, in response.1 The petitioner filed
a brief (Filing No. 37) in reply.

BACKGROUND
The petitioner was convicted of first degree murder and use of a firearm to
commit a felony on November 15, 2004. The Nebraska Supreme Court later affirmed
the decision on direct appeal and denied a petition for post-conviction relief.

The

petitioner, pro se, filed a petition for writ of habeas corpus, in this court, on July 2, 2013.
See Filing No. 1. Twenty-one days later on July 23, 2013, the petitioner, still pro se,
filed an amendment to the petition adding a ground not included in the original petition.
See Filing No. 4. Although the petitioner sought appointment of counsel, the court
initially denied his request. See Filing No. 7.
Thereafter the respondent filed the state court records and the parties briefed the
issues raised in the amended petition. See Filing Nos. 12-16, 21. Prior to timely filing
his brief, the petitioner sought an extension of time and again sought appointment of
counsel. See Filing Nos. 17, 19. Despite the completion of briefing, the court granted
the petitioner’s second motion for appointment of counsel. See Filing No. 23. Such
counsel was later granted leave to withdraw, when a conflict of interest came to light.
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Counsel is reminded the local rules expressly forbid filing an “Objection” with a brief opposing a motion.
See NECivR 7.1(b)(1)(A). Similarly, the local rules expressly require counsel to file evidence in an index
of evidence as a filing separate from the brief. See NECivR 7.1(b)(2).

See Filing No. 27. The petitioner’s current counsel entered an appearance on August
27, 2014.

See Filing No. 28.

The court entered a progression order allowing the

petitioner time until January 26, 2015, to file either an amended brief in support of the
amended petition or a motion to amend the petition. See Filing No. 32.
The petitioner timely filed the motion to amend seeking to add one additional
ground for relief now that he is represented by legal counsel and based on evidence
newly obtained by the petitioner. Specifically, the petitioner argues the new evidence
suggests a trial witness, Michael Whitlock (Whitlock), lied during trial when he testified
the petitioner called Whitlock looking for the victim, stating, “I don’t want to have to pop
him.” The testimony, when the statement supporting the first degree murder conviction
is eliminated, “establish[es] that [the petitioner] merely wanted to talk with the victim
without any violent intentions.” See Filing No. 34 - Brief p. 3. Accordingly, the petitioner
argues the new evidence supports a claim of actual innocence. Id. at 1.
The respondent opposes the amendment arguing the proposed changes are
improper consequent to undue delay, prejudice, and futility.

See Filing No. 36 -

Response p. 2. Generally, the respondent contends it suffers prejudice due to any
additional delay after the previous matters were fully briefed.

Id. at 2, 8-10.

Additionally, the respondent argues there is no claim of actual innocence, because if the
changes to Whitlock’s testimony are adopted, despite challenges to credibility, the most
the petitioner may show is he was guilty of second degree murder or manslaughter. Id.
at 4-6. Finally, the respondent argues the amendment is futile because the proposed
amendment is unrelated to the issues raised in the earlier petition, placing the
amendment outside the statute of limitations. Id. at 7-8.
The petitioner denies the respondent will suffer any undue prejudice because the
petitioner remains incarcerated and the changes to the petition are minimal, merely
allowing the previously unrepresented petitioner an opportunity to set forth and argue
his claims with the assistance of counsel. See Filing No. 37 - Reply p. 7. Further, the
petitioner contends he should have the opportunity based on the law to raise the actual
innocence claim, which rests on whether a reasonable factfinder could find him guilty of
the underlying offense, rather than any offense as suggested by the respondent. Id. at
3-4. Additionally, the weight of the petitioner’s evidence should not be resolved on a
motion to amend. Id. at 4-5. Finally, the petitioner argues he has not caused undue
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delay or exceeded the statute of limitations because the proposed new claim relates to
the underlying issues, even though it is based on new evidence not previously available.
Id. at 5-7.

ANALYSIS
Under Federal Rule of Civil Procedure 15, a court should grant leave to amend
freely “when justice so requires” and “to promote justice.” Plymouth County, Iowa v.
Merscorp, Inc., 774 F.3d 1155, 1160 (8th Cir. 2014). However, “[a] district court may
deny leave to amend if there are compelling reasons such as undue delay, bad faith, or
dilatory motive, repeated failure to cure deficiencies by amendments previously allowed,
undue prejudice to the non-moving party, or futility of the amendment.” Reuter v. Jax
Ltd., Inc., 711 F.3d 918, 922 (8th Cir. 2013) (internal quotation and citation omitted).
The party opposing the amendment has the burden of demonstrating the amendment
would be unfairly prejudicial. Roberson v. Hayti Police Dep’t, 241 F.3d 992, 995 (8th
Cir. 2001); see Hanks v. Prachar, 457 F.3d 774, 775 (8th Cir. 2006). There is no
absolute right to amend. Hartis v. Chicago Title Ins. Co., 694 F.3d 935, 948 (8th Cir.
2012). Whether to grant a motion for leave to amend is within the sound discretion of
the district court. Popoalii v. Corr. Med. Servs., 512 F.3d 488, 497 (8th Cir. 2008).
These rules apply equally to a motion to amend petition for writ of habeas corpus.
Moore-El v. Luebbers, 446 F.3d 890, 901-02 (8th Cir. 2006).
“If a party files for leave to amend outside of the court’s scheduling order, the
party must show cause to modify the schedule.” Id. (citing Fed. R. Civ. P. 16(b)); see
Hartis, 694 F.3d at 948.

Moreover, “if the reason for seeking the amendment is

apparent before the deadline and no offsetting factors appear, the Rule 16 deadline
must govern.” Financial Holding Corp. v. Garnac Grain Co., 127 F.R.D. 165, 166
(W.D. Mo. 1989). In addition to the good cause requirement, “on motion made after the
time has expired,” the court may extend time “if the party failed to act because of
excusable neglect.” See Fed. R. Civ. P. 6(b)(1)(B). Additionally, the court may consider
whether the “late tendered amendments involve new theories of recovery and impose
additional discovery requirements.” Popoalii, 512 F.3d at 497.
The petitioner’s motion to amend is within the court’s deadline; however, the
respondent contends the petitioner, nevertheless, causes undue delay because the
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initial amended petition has been fully briefed. The court finds good cause exists to
justify the timing of the petitioner’s motion to amend. The timing of the motion to amend
stems more from the court’s appointment of counsel and previously unavailable
evidence than from the petitioner’s conduct. In contrast, the respondent has failed to
sustain her burden of showing unfair prejudice caused by the delay or proposed
amendment. The respondent fails to show any specific harm or prejudice would result
from allowing the petitioner’s attorney to fully present and argue the claims. The parties
will have time to complete briefing, which is substantially completed already.
In the present case, the respondent has failed to carry her burden of establishing
leave to amend would be futile. The respondent argues the petitioner cannot establish
the factual basis to sustain the claim. However, likelihood of success on the new claim
or defense is not a consideration for denying leave to amend unless the claim is clearly
meritless. See Plymouth County, 774 F.3d at 1160; Gamma-10 Plastics, Inc. v.
American President Lines, 32 F.3d 1244, 1255 (8th Cir. 1994). The court notes the
petitioner cited some authority in support of his position. While the petitioner may or
may not prevail on this issue, the issue should be determined on the merits.
Upon consideration, the court finds the petitioner has demonstrated good cause
for allowing him to amend the petition.

Therefore, the respondent’s objections are

overruled and the petitioner will be allowed to amend his petition as requested.
Accordingly,

IT IS ORDERED:
1.

The petitioner’s Motion for Leave to File Amended Petition for Writ of

Habeas Corpus (Filing No. 33) is granted. The petitioner shall have until February 27,
2015, to file the Amended Petition.
2.

The respondent’s Objection to Motion to File Second Amended Petition

(Filing No. 35) is overruled.
Dated this 17th day of February, 2015.
BY THE COURT:
s/ Thomas D. Thalken
United States Magistrate Judge
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