Crawley v. State of Nevada et al

Filing 46

ORDER Granting 43 Motion for Leave to File Document. Petitioner must file the second amended petition within 7 days of the date of entry of this order. Signed by Judge Richard F. Boulware, II on 12/27/2021. (Copies have been distributed pursuant to the NEF - JQC)

Case 2:17-cv-02086-RFB-CWH Document 46 Filed 12/27/21 Page 1 of 4

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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BRYAN WAYNE CRAWLEY,

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Petitioner,

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Case No. 2:17-cv-02086-RFB-CWH
ORDER

v.
BRAD CAIN, et al.,

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Respondents.

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I.

Introduction

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This is a habeas corpus matter under 28 U.S.C. § 2254. Currently before the court is

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petitioner Bryan Crawley's motion for leave to file a second amended petition. ECF No. 43.

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Respondents oppose the motion. ECF No. 44. For the reasons stated below, I grant the motion.

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II.

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Procedural History
Crawley commenced this action with a proper-person habeas corpus petition. ECF No. 1.

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The court appointed the Federal Public Defender to represent him. ECF No. 5. Crawley then

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filed a counseled first amended petition. ECF No. 14. Respondents filed a motion to dismiss.

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ECF No. 16. The court postponed ruling on the motion to dismiss and stayed the action pending

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the final disposition of Ross v. Williams, 950 F.3d 1160, 1165 (9th Cir.) (en banc), cert. denied

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sub nom. Daniels v. Ross, 141 S. Ct. 840 (2020). ECF No. 26. After the final disposition of

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Ross, the court reopened the action and granted in part the motion to dismiss, dismissing ground
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Case 2:17-cv-02086-RFB-CWH Document 46 Filed 12/27/21 Page 2 of 4

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II(A) of the first amended petition because it was untimely. ECF No. 33, 36. The parties then

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stipulated to postpone respondents' deadline to file an answer and to give Crawley the opportunity

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to file a motion for leave to file a second amended petition. ECF No. 37. The court agreed. ECF

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No. 40. Crawley then filed his motion for leave to amend. ECF No. 43.

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III.

Discussion

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The proposed second amended petition does two things. First, it removes the untimely

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ground II(A). Second, it realleges three claims that Crawley states he had alleged in the initial

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petition and had omitted in the first amended petition: (1) Crawley's trial counsel was ineffective

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for failing to object to the prosecution's use of a substitute medical examiner at trial; (2) Crawley's

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appellate counsel was ineffective for failing to raise, on direct appeal, the trial court's denial of

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Crawley's request to present the conviction and comparably minimal sentence of his co-

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conspirator, Christopher Brewer, at sentencing; and (3) Crawley's appellate counsel was

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ineffective for failing to raise, on direct appeal, judicial bias at sentencing. ECF No. 43 at 3

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(citing ECF No. 1 at 8 (Ground 2(G)).

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The strong public policy is to permit amendment. Bonin v. Calderon, 59 F.3d 815, 845

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(9th Cir. 1995). Factors to consider are "bad faith, undue delay, prejudice to the opposing party,

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futility of the amendment, and whether the party has previously amended his pleadings." Id.

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The only factor that points against granting Crawley's motion is that he previously

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amended his petition. However, even that is not all negative. In this court's habeas corpus

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practice, counsel are allowed on appointment to file an amended petition. It would make little

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sense to appoint counsel to develop a petitioner's claims if the court did not allow counsel to file

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an amended petition. Although represented petitioners do not always seek leave to file second

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amended petitions, the court often grants such motions. The court and the parties then can deal

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with any procedural problems with newly added grounds that are not readily apparent through

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motions to dismiss.

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Crawley does not make his request in bad faith. The worst that the court could say was

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that a miscommunication occurred. The attorney who represented Crawley at the time of filing

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the first amended petition did not reallege these three claims. The current attorney who
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represents Crawley recognized the omission. She does not know why the prior attorney dropped

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those claims. It appears that from the discussions between the current attorney and Crawley that

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Crawley never wanted to drop those claims and that the current attorney thinks that the claims are

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viable. ECF No. 45 at 3-4.

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Undue delay does not exist. Much of the delay that occurred before the court stayed the

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action was not Crawley's fault. The case was stayed and closed for about a year and a half

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pending final disposition of Ross, and that, also, was not Crawley's fault. After the court

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reopened the case in January 2021, about 7 months passed before Crawley filed his motion for

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leave to file a second amended petition. However, Crawley's counsel has adequately explained

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the reason. She entered employment with the Federal Public Defender while the COVID-19

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pandemic was a problem. She was unable to speak with Crawley until May 2021, and she has

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been unable to meet with him in person because Crawley is incarcerated in Oregon and because

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Oregon prisons were closed to all visitors until this past summer. ECF No. 45 at 3. Those are

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factors beyond Crawley's control.

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Respondents will not be prejudiced by this amendment. The parties agree that

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respondents may file a motion to dismiss to raise any procedural defenses. ECF No. 44 at 5, ECF

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No. 45 at 5. The court agrees that respondents may move to dismiss the newly added grounds if

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procedural defenses exist.

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Finally, amendment would not be futile. The new claims do not duplicate existing claims.

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They are not patently frivolous. The Nevada Supreme Court has ruled on claims that are at least

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similar. ECF No. 23-28. These are not claims that would be dismissed immediately.

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For the above reasons, the court finds that granting Crawley leave to amend would be in

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the interests of justice.

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IV.

Conclusion

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IT THEREFORE IS ORDERED that petitioner's motion for leave to file a second

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amended petition (ECF No. 43) is GRANTED. Petitioner must file the second amended petition

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within 7 days of the date of entry of this order.

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IT FURTHER IS ORDERED that Respondents must file a response to the petition,

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including potentially by motion to dismiss, within 60 days of entry of this order and that

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petitioner may file a reply within 30 days of service of an answer. The response and reply time to

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any motion filed by either party, including a motion filed in lieu of a pleading, will be governed

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instead by Local Rule LR 7-2(b).

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IT FURTHER IS ORDERED that any procedural defenses raised by Respondents to the

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petition must be raised together in a single consolidated motion to dismiss. In other words, the

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court does not wish to address any procedural defenses raised herein either in serial fashion in

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multiple successive motions to dismiss or embedded in the answer. Procedural defenses omitted

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from such motion to dismiss will be subject to potential waiver. Respondents must not file a

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response in this case that consolidates their procedural defenses, if any, with their response on the

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merits, except pursuant to 28 U.S.C. § 2254(b)(2) as to any unexhausted claims clearly lacking

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merit. If respondents do seek dismissal of unexhausted claims under § 2254(b)(2): (a) they must

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do so within the single motion to dismiss not in the answer; and (b) they must specifically direct

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their argument to the standard for dismissal under § 2254(b)(2) set forth in Cassett v. Stewart, 406

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F.3d 614, 623-24 (9th Cir. 2005). In short, no procedural defenses, including exhaustion, may be

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included with the merits in an answer. All procedural defenses, including exhaustion, instead

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must be raised by motion to dismiss.

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IT FURTHER IS ORDERED that, in any answer filed on the merits, respondents must

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specifically cite to and address the applicable state court written decision and state court record

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materials, if any, regarding each claim within the response as to that claim.

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DATED: December 27, 2021

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______________________________
RICHARD F. BOULWARE, II
United States District Judge

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