Sheppard v. Foster et al

Filing 46

ORDER granting ECF No. 41 Motion to Lift Stay for the Limited Purpose of Filing Supplement to first Amended Petition; Petitioner is granted leave of court to add to her habeas corpus petition in this action the claims set forth in her S upplement to First Amended Petition for Writ of Habeas Corpus ECF No. 42 ; the claims will be considered added to the habeas corpus petition in this action; in all other respects, the stay of this action will remain in effect. Signed by Judge Miranda M. Du on 04/25/2017. (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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MELONIE LYNN SHEPPARD,

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Case No. 3:14-cv-00059-MMD-VPC
Petitioner,

ORDER

v.
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SHERYL FOSTER, et al.,
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Respondents.
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This habeas petition is before the Court pursuant to petitioner Melonie Lynn

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Sheppard’s counseled motion to temporarily lift stay in order to supplement her petition

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(ECF No. 41). Respondents opposed (ECF No. 43), and Sheppard replied (ECF No. 45).

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On March 1, 2016, the Court granted Sheppard’s motion to stay and abey while

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she litigated her pending state postconviction petition. (ECF No. 39.) She now moves to

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lift the stay for the limited purpose of supplementing the first-amended petition in order to

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add factual and legal claims that were not previously available when she filed her first-

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amended petition. (ECF No. 41 at 3.) While her state postconviction proceedings are

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ongoing, she seeks to file the supplement now in order to prevent forfeiture of the claim

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under the statute of limitations. Id. She explains that in an abundance of caution and in

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the exercise of diligence she brings the newly discovered facts and legal arguments to

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this Court’s attention now so that they may be properly litigated without delay following

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the conclusion of all state proceedings. Id. at 3-4.

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Respondents contend that petitioner has mischaracterized the addition of the claim

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as a supplement, rather than as an amendment. See Fed. R. Civ. P. 15. For purposes of

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this motion, the distinction is immaterial. A petition for a writ of habeas corpus “may be

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amended or supplemented as provided in the rules of procedure applicable to civil

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actions.” 28 U.S.C. § 2242; see also Rule 12, Rules Governing Section 2254 Cases

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(Rules of Civil Procedure apply to federal habeas proceedings “to the extent that they are

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

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pleading with the opposing party’s written consent or the court’s leave. See Fed. R. Civ.

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P. 15(a)(2). “The court should freely give leave when justice so requires.” Id. “Courts may

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decline to grant leave to amend only if there is strong evidence of ‘undue delay, bad faith

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or dilatory motive on the part of the movant, repeated failure to cure deficiencies by

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amendments previously allowed, undue prejudice to the opposing party by virtue of

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allowance of the amendment, [or] futility of amendment, etc.’” Sonoma County. Ass’n of

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Retired Employees v. Sonoma County, 708 F.3d 1109, 1117 (9th Cir. 2013) (quoting

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Foman v. Davis, 371 U.S. 178, 182 (1962)). “[T]he consideration of prejudice to the

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opposing party carries the greatest weight.” Eminence Capital, LLC v. Aspeon, Inc., 316

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F.3d 1048, 1052 (9th Cir. 2003).

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Respondents oppose allowing Sheppard to file the supplement, arguing that the

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factual bases of Sheppard’s new claim—that police coerced her co-defendant to lie and

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implicate Sheppard—arose before she filed her first-amended petition. (ECF No. 45.)

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Sheppard acknowledges that her co-defendant had testified in 2009 that she was pulled

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out of the county jail to work on her story. (ECF No. 45 at 2-3.) However, Sheppard argues

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that at the January 2017 state postconviction evidentiary hearing, the co-defendant

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testified for the first time that it was police detectives who coerced her and that a third

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defendant testified for the first time that detectives pressured him and threatened to have

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his sister arrested if he did not testify to a similar version of events as the co-defendant.

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Id.

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The Court will grant the motion. After the completion of her pending state-court

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proceedings, and if and when the stay of this action is permanently lifted, the Court will

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require petitioner to file an amended habeas petition, including the new claim.
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Nothing in this order granting petitioner’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 petitioner’s new claim.

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It is therefore ordered that petitioner’s motion to lift stay (ECF No. 41) is granted.

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It is further ordered that petitioner is granted leave of court to add to her habeas

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corpus petition in this action the claims set forth in her Supplement to First Amended

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Petition for Writ of Habeas Corpus (ECF No. 42). The claims will be considered added to

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the habeas corpus petition in this action. The Court will not, at this time, require petitioner

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to file an amended habeas petition, including her new claim. After completion of her state-

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court proceedings, and if and when the stay of this action is permanently lifted, the Court

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will require petitioner to file an amended habeas petition including this new claim.
It is further ordered that, in all other respects, the stay of this action will remain in

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effect.

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DATED THIS 25th day of April 2017.
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MIRANDA M. DU
UNITED STATES DISTRICT JUDGE

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