McKenna v. McDaniel et al

Filing 54

ORDER that 51 Motion to Temporarily Lift Stay to Amend is GRANTED. FURTHER ORDERED that petitioner is granted leave of court to amend his habeas corpus petition in this action to add the claims set forth in Exhibit A to the Motion to Temporarily Lift Stay 51 . FURTHER ORDERED that, in all other respects, the stay of this action imposed on May 9, 2012, is reinstated and shall remain in effect as described in 37 the Order entered May 9, 2012. Signed by Judge James C. Mahan on 3/17/14. (Copies have been distributed pursuant to the NEF - MMM)

1
2
3
4
5
6

UNITED STATES DISTRICT COURT

7

DISTRICT OF NEVADA

8
9

PATRICK CHARLES McKENNA,

10

Petitioner,

11

vs.

12

RENEE BAKER, et al.,

13
14

Respondents.

)
)
)
)
)
)
)
)
)
)
/

2:11-cv-0191-JCM-PAL
ORDER

15
16

This capital habeas corpus action was stayed on May 9, 2012, pending completion of certain

17

state-court litigation. See Order entered May 9, 2012 (ECF No. 37). The state-court litigation has

18

not yet been completed. See Status Report filed December 11, 2013 (ECF No. 48).

19

On March 5, 2014, however, the petitioner, Patrick Charles McKenna, filed a “Motion to

20

Temporarily Lift Stay to Amend” (ECF No. 51) (hereafter “Motion to Temporarily Lift Stay”).

21

McKenna explains in that motion that he recently discovered several new claims. See Motion to

22

Temporarily Lift Stay, p. 2. McKenna states that he included those claims in his state-court petition.

23

Id. McKenna requests that the stay of this action be lifted, temporarily, to allow consideration of the

24

Motion to Temporarily Lift Stay itself, and to allow amendment of his habeas petition to add his new

25

claims. The new claims are set out, and exhibits in support of the new claims are provided, in an

26

exhibit to the Motion to Temporarily Lift Stay. See Exhibit A to Motion to Temporarily Lift Stay.

1

McKenna further requests in his motion “... that he be temporarily relieved of the obligation of filing

2

an amended habeas petition until after completing exhaustion in state court, when [he] can then

3

incorporate his new claims by amending his pending Amended Habeas Petition.” Motion to

4

Temporarily Lift Stay, p. 2.

5

On March 6, 2014, respondents filed a response to McKenna’s motion, stating that they

6

generally do not oppose McKenna’s motion, but that they do oppose the court relieving McKenna of

7

the requirement that he file a complete second amended petition at this time. See Opposition to

8

Motion to Temporarily Lift Stay to Amend (ECF No. 52). On March 12, 2014, McKenna filed a

9

reply (ECF No. 53).

10

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

11

rules of procedure applicable to civil actions.” 28 U.S.C. § 2242; see also Rule 12, Rules Governing

12

§ 2254 Cases (Federal Rules of Civil Procedure apply to federal habeas proceedings “to the extent

13

that they are not inconsistent.”). Federal Rule of Civil Procedure 15(a) permits a party to amend a

14

pleading with the opposing party’s written consent or leave of court. See Fed. R. Civ. P. 15(a)(2).

15

“The court should freely give leave when justice so requires.” Id. The court will grant McKenna’s

16

motion, will temporarily lift the stay of this action, and will grant leave of court for the requested

17

amendment.

18

The court finds reasonable McKenna’s request that he be temporarily relieved of the

19

obligation of filing a complete second amended petition until after completing exhaustion in state

20

court, and until the stay of this action is lifted. The court finds that proceeding in the manner

21

suggested by McKenna is in the interest of judicial economy and in the interest of conserving the

22

parties’ resources. The court will, in this instance, therefore, waive the requirements of Local Rule

23

15-1. The court will grant leave of court for the amendment requested by McKenna, and the claims

24

set forth in Exhibit A to the Motion to Temporarily Lift Stay shall be considered added to

25

McKenna’s habeas corpus petition; after the completion of his pending state-court proceedings, and

26

2

1

if and when the stay of this action is permanently lifted, the court will require McKenna to file a

2

second amended habeas petition, including those new claims.

3
4
5

IT IS THEREFORE HEREBY ORDERED that petitioner’s Motion to Temporarily Lift
Stay to Amend (ECF No. 51) is GRANTED.
IT IS FURTHER ORDERED that petitioner is granted leave of court to amend his habeas

6

corpus petition in this action to add the claims set forth in Exhibit A to the Motion to Temporarily

7

Lift Stay (ECF No. 51). Those claims shall be considered added to the habeas corpus petition in this

8

action. However, the court will not require McKenna to file a second amended habeas petition,

9

including those new claims, at this time. After completion of his pending state-court proceedings,

10

and if and when the stay of this action is permanently lifted, the court will require McKenna to file a

11

second amended habeas petition, including the new claims.

12

IT IS FURTHER ORDERED that, in all other respects, the stay of this action imposed on

13

May 9, 2012, is reinstated and shall remain in effect as described in the Order entered May 9, 2012

14

(ECF No. 37).

15
16

March 17, 2014.
Dated this _____ day of March, 2014.

17
18
UNITED STATES DISTRICT JUDGE
19
20
21
22
23
24
25
26

3