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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1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 DISTRICT OF NEVADA 8 *** 9 WILLIAM BRYON LEONARD, 10 Petitioner, v. 11 12 Case No. 2:99-cv-0360-MMD-CWH ORDER TIMOTHY FILSON, et al., 13 Respondents. 14 15 On December 28, 2016, this Court entered a scheduling order that allowed 16 petitioner Leonard sixty (60) days within which to file an amended petition. (ECF No. 120.) 17 Within that 60-day period, Leonard filed, in succession, a motion for leave to supplement 18 petition for writ of habeas corpus (ECF No. 121), a motion to re-impose stay (ECF No. 19 124), and a motion for extension of time to file first amended petition pending resolution 20 of motion to re-impose stay (ECF No. 127). This order decides all three motions. 21 I. MOTION FOR LEAVE TO SUPPLEMENT 22 With his motion for leave to supplement, Leonard asks to amend his existing 23 petition (Dkt. No. 1.)1 to include a claim that his death penalty is unconstitutional because 24 the trial court was required to give the jury a clear instruction that, in order to find him 25 eligible for the death penalty, it must conclude that there are insufficient mitigating 26 27 28 1Electronic 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. 1 circumstances to outweigh the aggravating circumstances beyond a reasonable doubt. 2 (ECF No. 122.) Leonard premises this claim on Hurst v. Florida, 136 S.Ct. 616 (2016), 3 which was decided January 12, 2016. He represents to the Court that, rather than include 4 his Hurst claim in his forthcoming amended petition, he seeks leave to amend his existing 5 petition in order to present the claim within one year of the date on which a “constitutional 6 right was initially recognized by the Supreme Court.” 28 U.S.C. § 2244(d)(1)(c). 7 A petition for a writ of habeas corpus “may be amended or supplemented as 8 provided in the rules of procedure applicable to civil actions.” 28 U.S.C. § 2242; see also 9 Rule 12, Rules Governing Section 2254 Cases (Rules of Civil Procedure apply to federal 10 habeas proceedings “to the extent that they are not inconsistent.”). Federal Rule of Civil 11 Procedure 15(a) permits a party to amend a pleading with the opposing party’s written 12 consent or the court’s leave. See Fed. R. Civ. P. 15(a)(2). “The court should freely give 13 leave when justice so requires.” Id. “Courts may decline to grant leave to amend only if 14 there is strong evidence of ‘undue delay, bad faith or dilatory motive on the part of the 15 movant, repeated failure to cure deficiencies by amendments previously allowed, undue 16 prejudice to the opposing party by virtue of allowance of the amendment, [or] futility of 17 amendment, etc.’” Sonoma County. Ass’n of Retired Employees v. Sonoma County, 708 18 F.3d 1109, 1117 (9th Cir. 2013) (quoting Foman v. Davis, 371 U.S. 178, 182 (1962)). 19 “[T]he consideration of prejudice to the opposing party carries the greatest weight.” 20 Eminence Capital, LLC v. Aspeon, Inc., 316 F.3d 1048, 1052 (9th Cir. 2003). 21 Hurst was decided January 12, 2016. Leonard’s request to add a claim based on 22 Hurst within the following year does not involve undue delay, bad faith, or dilatory motive, 23 nor does it unduly prejudice the respondents. 24 Furthermore, while there appear to be serious questions regarding the merits of 25 Leonard’s Hurst-based claim, the Court determines — for purposes of the motion to 26 supplement only — that there is no showing that addition of the claim would be futile. 27 “[P]roposed amendments [are futile when they] are either duplicative of existing claims or 28 /// 2 1 patently frivolous.” Murray v. Schriro, 745 F.3d 984, 1015 (9th Cir. 2014) (quoting Bonin 2 v. Calderon, 59 F.3d 815, 846 (9th Cir. 1995)). 3 Leonard requests that the Court waive the requirements of LR 15-1, which 4 generally requires that a complete proposed amended petition be attached to a motion to 5 amend, and that, after a motion to amend is granted, the petitioner is to file the complete 6 amended petition. Because Leonard will be filing an amended petition, the Court will 7 waive the requirements of Local Rule 15-1. 8 Nothing in this order granting Leonard’s motion for leave to supplement will have 9 any bearing on any other procedural issue in this case; nor will any aspect of this order 10 have any bearing on the Court’s consideration of the merits of the new claim in any other 11 context. 12 II. MOTION TO RE-IMPOSE STAY 13 With his motion to re-impose stay, Leonard asks the Court to stay further 14 proceedings in this case until he completes state court litigation of his Hurst claim. 15 Leonard represents to this Court that, on January 9, 2017, he mailed for filing a state 16 petition raising his Hurst issue in the First Judicial District Court for Carson City, Nevada. 17 In Rhines v. Weber, 544 U.S. 269 (2005), the stay and abeyance procedure was 18 condoned by the Court as a means by which a habeas petitioner with a mixed petition 19 subject to dismissal under Rose v. Lundy, 455 U.S. 509 (1982), could fully exhaust his 20 petition without the risk of running afoul of the 1-year statutory time limit for filing federal 21 petitions. Rhines, 544 U.S. at 276. The Court in Rhines cautioned, however, that stay and 22 abeyance, if too frequently used, would undermine AEDPA’s goals of prompt resolution 23 of claims and deference to state court rulings. Id. Thus, the Court held that, in order to 24 obtain “stay and abeyance,” a petitioner must show: 1) good cause for the failure to 25 exhaust claims in state court; 2) that unexhausted claims are potentially meritorious; and 26 3) the absence of abusive tactics or intentional delay. Id.; Jackson v. Roe, 425 F.3d 654, 27 662 (9th Cir. 2005). For the reasons that follow, this Court concludes that Leonard’s Hurst 28 /// 3 1 claim is not potentially meritorious and, on that basis, will deny his request for a Rhines 2 stay. 3 In Hurst, the Court held that Florida's capital sentencing scheme violated the Sixth 4 Amendment right to a jury trial because, under the scheme, the jury rendered an advisory 5 verdict but the judge ultimately found the facts necessary to impose a sentence of death. 6 136 S.Ct. at 624. In reaching that holding, the Court relied upon Ring v. Arizona, 536 U.S. 7 584 (2002), which held that any fact necessary for the imposition of the death penalty 8 must be found by a jury, not a judge. 536 U.S. at 589. Ring and Hurst are both based on 9 Apprendi v. New Jersey, 530 U.S. 466 (200), which held that any fact that “expose[s] the 10 defendant to a greater punishment than that authorized by the jury’s guilty verdict” is an 11 “element” that must be submitted to a jury. 530 U.S. at 494. 12 Although a jury imposed the death penalty in Leonard’s case, he claims that his 13 death sentence is nonetheless unconstitutional under Hurst because the jury was not 14 instructed that it must find beyond a reasonable doubt that there are no mitigating 15 circumstances sufficient to outweigh the aggravating circumstances. Leonard reasons 16 that, under Hurst, the weighing of aggravating and mitigating factors is an “element” that 17 must be submitted to the jury and, as such, it necessarily follows that the reasonable 18 doubt standard imposed by the Fifth Amendment applies to the weighing process. 19 While it is ostensibly logical, Leonard’s claim extends the holding in Hurst well 20 beyond its cognizable bounds. Neither Ring nor Hurst holds that the weighing aggravating 21 and mitigating circumstances is an “element” that must be submitted the jury. The Court 22 in Ring noted that “[t]he State's law authorizes the judge to sentence the defendant to 23 death only if there is at least one aggravating circumstance and ‘there are no mitigating 24 circumstances sufficiently substantial to call for leniency.’” Ring, 536 U.S. at 593. Yet, the 25 Court identified only the existence of an aggravating circumstance as an “element” that 26 must be found by a jury to impose the death penalty. Ring, 536 U.S. at 589. 27 Similarly, the Court in Hurst concluded that Florida’s capital sentencing scheme 28 was unconstitutional because it “required the judge alone to find the existence of an 4 1 aggravating circumstance.” Hurst, 136 S.Ct. at 624. The import of Hurst is its holding that 2 the jury’s advisory role under Florida law fell short of complying with the Sixth Amendment 3 requirement of Apprendi and Ring. It did not break new ground with respect to what 4 determinations qualify as an “element” that must be submitted to a jury. Because neither 5 Ring nor Hurst classifies the weighing of aggravating and mitigating circumstances as an 6 element that must be determined by a jury, Leonard has no support for his claim that he 7 was entitled to a “beyond a reasonable doubt” jury instruction on that issue.2 Leonard’s motion to re-impose a stay is denied. 8 9 III. MOTION FOR EXTENSION OF TIME 10 With his motion for extension of time, Leonard seeks additional time within which 11 to file his amended petition. Leonard notes that, if he was to be granted a stay, the 12 scheduling order of December 28, 2016, would be moot. Otherwise he asks for sixty (60) 13 days from the date this Court denies his motion for stay within which to file his amended 14 petition. 15 Because the Court is denying Leonard’s request for a stay, the scheduling order 16 shall remain in effect. The Court finds that Leonard’s request for a stay is made in good 17 faith, and not solely for the purpose of delay. Good cause appearing, he will be allowed 18 sixty (60) days within which to file his amended petition. 19 It is therefore ordered that petitioner’s motion for leave to supplement petition for 20 writ of habeas corpus (ECF No. 121) is granted. Petitioner is permitted to add to his 21 habeas corpus petition in this action (Dkt. No. 1) the claim set forth in his Supplement to 22 Petition for Writ of Habeas Corpus (ECF No. 122). The requirements of LR 15-1 are 23 24 25 26 27 28 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). 5 1 waived; and, the claim will be considered added to the petition as of January 9, 2017. 2 Petitioner may also include this claim in the amended petition contemplated by the 3 scheduling order entered on December 28, 2016 (ECF No. 120). 4 5 It is further ordered that petitioner’s motion to re-impose stay (ECF No. 124) is denied. 6 It is further ordered that petitioner’s motion for extension of time to file first 7 amended petition (ECF No. 127) is granted. Petitioner will have sixty (60) days from the 8 date this order is entered within which to file his first amended petition. In all other 9 respects, the scheduling order of December 28, 2016 (ECF No. 120) will govern future 10 11 proceedings in this case. DATED THIS 18th day of August 2017. 12 13 MIRANDA M. DU UNITED STATES DISTRICT JUDGE 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 6

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