WILLIAM LEONARD V. E.K.MCDANIEL

Filing 129

ORDER granting ECF No. 121 Motion for Leave to Supplement Petition for Writ of Habeas Corpus; denying ECF No. 124 petitioner's Motion to re-impose stay; granting ECF No. 127 Motion to Extend Time to file first a mended petition. Amended Petition due by 10/17/2017. In all otherrespects, the scheduling order of12/28/2016 ECF No. [120[ will govern futureproceedings in this case. Signed by Judge Miranda M. Du on 08/18/2017. (Copies have been distributed pursuant to the NEF - KW)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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***

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WILLIAM BRYON LEONARD,

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Petitioner,
v.

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Case No. 2:99-cv-0360-MMD-CWH
ORDER

TIMOTHY FILSON, et al.,

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Respondents.

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On December 28, 2016, this Court entered a scheduling order that allowed

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petitioner Leonard sixty (60) days within which to file an amended petition. (ECF No. 120.)

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Within that 60-day period, Leonard filed, in succession, a motion for leave to supplement

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petition for writ of habeas corpus (ECF No. 121), a motion to re-impose stay (ECF No.

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124), and a motion for extension of time to file first amended petition pending resolution

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of motion to re-impose stay (ECF No. 127). This order decides all three motions.

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I.

MOTION FOR LEAVE TO SUPPLEMENT

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With his motion for leave to supplement, Leonard asks to amend his existing

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petition (Dkt. No. 1.)1 to include a claim that his death penalty is unconstitutional because

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the trial court was required to give the jury a clear instruction that, in order to find him

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eligible for the death penalty, it must conclude that there are insufficient mitigating

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docketing for this case begins with entry number 45. Accordingly, ECF
numbers are not available for entries 1–44 and such entries will be cited as “Dkt. No.,”
rather than “ECF No.” Docket entries following 44 will be cited as “ECF No.” as required
by the rules of this Court.

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circumstances to outweigh the aggravating circumstances beyond a reasonable doubt.

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(ECF No. 122.) Leonard premises this claim on Hurst v. Florida, 136 S.Ct. 616 (2016),

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which was decided January 12, 2016. He represents to the Court that, rather than include

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his Hurst claim in his forthcoming amended petition, he seeks leave to amend his existing

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petition in order to present the claim within one year of the date on which a “constitutional

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right was initially recognized by the Supreme Court.” 28 U.S.C. § 2244(d)(1)(c).

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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; see also

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Rule 12, Rules Governing Section 2254 Cases (Rules of Civil Procedure apply to federal

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habeas proceedings “to the extent that they are not inconsistent.”). Federal Rule of Civil

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Procedure 15(a) permits a party to amend a pleading with the opposing party’s written

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consent or the court’s leave. See Fed. R. Civ. P. 15(a)(2). “The court should freely give

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leave when justice so requires.” Id. “Courts may decline to grant leave to amend only if

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there is strong evidence of ‘undue delay, bad faith or dilatory motive on the part of the

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movant, repeated failure to cure deficiencies by amendments previously allowed, undue

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prejudice to the opposing party by virtue of allowance of the amendment, [or] futility of

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amendment, etc.’” Sonoma County. Ass’n of Retired Employees v. Sonoma County, 708

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F.3d 1109, 1117 (9th Cir. 2013) (quoting Foman v. Davis, 371 U.S. 178, 182 (1962)).

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“[T]he consideration of prejudice to the opposing party carries the greatest weight.”

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Eminence Capital, LLC v. Aspeon, Inc., 316 F.3d 1048, 1052 (9th Cir. 2003).

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Hurst was decided January 12, 2016. Leonard’s request to add a claim based on

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Hurst within the following year does not involve undue delay, bad faith, or dilatory motive,

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nor does it unduly prejudice the respondents.

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Furthermore, while there appear to be serious questions regarding the merits of

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Leonard’s Hurst-based claim, the Court determines — for purposes of the motion to

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supplement only — that there is no showing that addition of the claim would be futile.

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“[P]roposed amendments [are futile when they] are either duplicative of existing claims or

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patently frivolous.” Murray v. Schriro, 745 F.3d 984, 1015 (9th Cir. 2014) (quoting Bonin

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v. Calderon, 59 F.3d 815, 846 (9th Cir. 1995)).

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Leonard requests that the Court waive the requirements of LR 15-1, which

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generally requires that a complete proposed amended petition be attached to a motion to

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amend, and that, after a motion to amend is granted, the petitioner is to file the complete

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amended petition. Because Leonard will be filing an amended petition, the Court will

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waive the requirements of Local Rule 15-1.

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Nothing in this order granting Leonard’s motion for leave to supplement will have

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any bearing on any other procedural issue in this case; nor will any aspect of this order

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have any bearing on the Court’s consideration of the merits of the new claim in any other

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context.

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II.

MOTION TO RE-IMPOSE STAY

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With his motion to re-impose stay, Leonard asks the Court to stay further

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proceedings in this case until he completes state court litigation of his Hurst claim.

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Leonard represents to this Court that, on January 9, 2017, he mailed for filing a state

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petition raising his Hurst issue in the First Judicial District Court for Carson City, Nevada.

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In Rhines v. Weber, 544 U.S. 269 (2005), the stay and abeyance procedure was

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condoned by the Court as a means by which a habeas petitioner with a mixed petition

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subject to dismissal under Rose v. Lundy, 455 U.S. 509 (1982), could fully exhaust his

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petition without the risk of running afoul of the 1-year statutory time limit for filing federal

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petitions. Rhines, 544 U.S. at 276. The Court in Rhines cautioned, however, that stay and

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abeyance, if too frequently used, would undermine AEDPA’s goals of prompt resolution

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of claims and deference to state court rulings. Id. Thus, the Court held that, in order to

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obtain “stay and abeyance,” a petitioner must show: 1) good cause for the failure to

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exhaust claims in state court; 2) that unexhausted claims are potentially meritorious; and

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3) the absence of abusive tactics or intentional delay. Id.; Jackson v. Roe, 425 F.3d 654,

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662 (9th Cir. 2005). For the reasons that follow, this Court concludes that Leonard’s Hurst

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claim is not potentially meritorious and, on that basis, will deny his request for a Rhines

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stay.

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In Hurst, the Court held that Florida's capital sentencing scheme violated the Sixth

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Amendment right to a jury trial because, under the scheme, the jury rendered an advisory

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verdict but the judge ultimately found the facts necessary to impose a sentence of death.

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136 S.Ct. at 624. In reaching that holding, the Court relied upon Ring v. Arizona, 536 U.S.

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584 (2002), which held that any fact necessary for the imposition of the death penalty

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must be found by a jury, not a judge. 536 U.S. at 589. Ring and Hurst are both based on

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Apprendi v. New Jersey, 530 U.S. 466 (200), which held that any fact that “expose[s] the

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defendant to a greater punishment than that authorized by the jury’s guilty verdict” is an

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“element” that must be submitted to a jury. 530 U.S. at 494.

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Although a jury imposed the death penalty in Leonard’s case, he claims that his

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death sentence is nonetheless unconstitutional under Hurst because the jury was not

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instructed that it must find beyond a reasonable doubt that there are no mitigating

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circumstances sufficient to outweigh the aggravating circumstances. Leonard reasons

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that, under Hurst, the weighing of aggravating and mitigating factors is an “element” that

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must be submitted to the jury and, as such, it necessarily follows that the reasonable

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doubt standard imposed by the Fifth Amendment applies to the weighing process.

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While it is ostensibly logical, Leonard’s claim extends the holding in Hurst well

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beyond its cognizable bounds. Neither Ring nor Hurst holds that the weighing aggravating

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and mitigating circumstances is an “element” that must be submitted the jury. The Court

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in Ring noted that “[t]he State's law authorizes the judge to sentence the defendant to

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death only if there is at least one aggravating circumstance and ‘there are no mitigating

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circumstances sufficiently substantial to call for leniency.’” Ring, 536 U.S. at 593. Yet, the

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Court identified only the existence of an aggravating circumstance as an “element” that

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must be found by a jury to impose the death penalty. Ring, 536 U.S. at 589.

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Similarly, the Court in Hurst concluded that Florida’s capital sentencing scheme

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was unconstitutional because it “required the judge alone to find the existence of an
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aggravating circumstance.” Hurst, 136 S.Ct. at 624. The import of Hurst is its holding that

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the jury’s advisory role under Florida law fell short of complying with the Sixth Amendment

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requirement of Apprendi and Ring. It did not break new ground with respect to what

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determinations qualify as an “element” that must be submitted to a jury. Because neither

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Ring nor Hurst classifies the weighing of aggravating and mitigating circumstances as an

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element that must be determined by a jury, Leonard has no support for his claim that he

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was entitled to a “beyond a reasonable doubt” jury instruction on that issue.2
Leonard’s motion to re-impose a stay is denied.

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III.

MOTION FOR EXTENSION OF TIME

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With his motion for extension of time, Leonard seeks additional time within which

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to file his amended petition. Leonard notes that, if he was to be granted a stay, the

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scheduling order of December 28, 2016, would be moot. Otherwise he asks for sixty (60)

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days from the date this Court denies his motion for stay within which to file his amended

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petition.

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Because the Court is denying Leonard’s request for a stay, the scheduling order

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shall remain in effect. The Court finds that Leonard’s request for a stay is made in good

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faith, and not solely for the purpose of delay. Good cause appearing, he will be allowed

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sixty (60) days within which to file his amended petition.

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It is therefore ordered that petitioner’s motion for leave to supplement petition for

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writ of habeas corpus (ECF No. 121) is granted. Petitioner is permitted to add to his

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habeas corpus petition in this action (Dkt. No. 1) the claim set forth in his Supplement to

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Petition for Writ of Habeas Corpus (ECF No. 122). The requirements of LR 15-1 are

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2Indeed,

this Court views the determination that there are no mitigating
circumstances sufficient to outweigh the aggravating circumstances to be a matter of
subjective judgment that is not amenable to proof beyond a reasonable doubt. In addition,
the Court in Hurst made clear that it was overruling its prior cases upholding Florida’s
capital sentencing scheme (Spaziano v. Florida, 468 U.S. 447, 464 (1984) and Hildwin v.
Florida, 490 U.S. 638, (1989)), but noted that it was doing so “to the extent they allow a
sentencing judge to find an aggravating circumstance, independent of a jury's factfinding,
that is necessary for imposition of the death penalty.” Hurst, 136 S.Ct. at 624 (emphasis
added).
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waived; and, the claim will be considered added to the petition as of January 9, 2017.

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Petitioner may also include this claim in the amended petition contemplated by the

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scheduling order entered on December 28, 2016 (ECF No. 120).

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It is further ordered that petitioner’s motion to re-impose stay (ECF No. 124) is
denied.

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It is further ordered that petitioner’s motion for extension of time to file first

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amended petition (ECF No. 127) is granted. Petitioner will have sixty (60) days from the

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date this order is entered within which to file his first amended petition. In all other

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respects, the scheduling order of December 28, 2016 (ECF No. 120) will govern future

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proceedings in this case.
DATED THIS 18th day of August 2017.

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MIRANDA M. DU
UNITED STATES DISTRICT JUDGE

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