Leeds v. Baca et al

Filing 48

ORDER that Respondents' Motion for Leave to File a Supplemental Opposition ECF No. 44 is GRANTED; Motions to Extend Time ECF Nos. 32 / 34 are GRANTED; Petitioner's Motion for Leave to File a Third Amended Petition ECF No . 24 is GRANTED; Petitioner's Motion to Partially Waive Local Rule IA 10-3(e) ECF No. 39 is GRANTED; Petitioner's Motions to Seal 38 / 40 are GRANTED; Clerk shall keep Exhibits 142-146 (ECF No. 38 -1-8) filed und er seal; Respondents Motion for Extension of Time ECF No. 31 in which to file a response to the third amended petition is GRANTED; Respondents SHALL FILE a response to the Third Amended Petition within 45 days; if and when respondents file an answer, petitioner shall have 45 days after service of the answer to file and serve a reply. Signed by Judge Larry R. Hicks on 08/21/2017. (Copies have been distributed pursuant to the NEF - KW)

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UNITED STATES DISTRICT COURT
DISTRICT OF NEVADA

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ROBERT MARC LEEDS,

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Petitioner,

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vs.

Case No. 3:15-cv-00261-LRH-VPC
ORDER

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WARDEN BACA, et al.,
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Respondents.
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This action is a petition for a writ of habeas corpus filed pursuant to 28 U.S.C. § 2254 by a
Nevada state prisoner represented by counsel.
On February 16, 2016, petitioner filed a motion for leave to file a third amended petition.

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(ECF No. 24). On the same date, petitioner filed a second amended petition and exhibits in support

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of the same. (ECF Nos. 12-23). In the motion for leave to file a third amended petition, petitioner’s

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counsel states that since entering a notice of appearance on November 30, 2015, counsel diligently

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attempted to obtain the state record to assess the timeliness of an amended petition. Counsel

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determined that the statute of limitations in petitioner’s case may run as soon as February 25, 2016.

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Counsel explained that to ensure the timeliness of petitioner’s claims, a second amended petition

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was filed along with the motion for leave to file a third amended petition. Petitioner then sought an

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extension of time up to and including June 15, 2016, to file a third amended petition. (ECF No. 32).

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Petitioner later sought an extension of time up to and including July 14, 2016, to file a third

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amended petition. (ECF No. 34). Petitioner filed a third amended petition on July 14, 2016. (ECF

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No. 35).

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Respondents originally did not oppose petitioner’s motion to file a third amended petition.

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(ECF No. 27). Later, after petitioner filed a third amended petition, respondents filed a

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supplemental response on July 26, 2016, in which they oppose the filing of the third amended

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petition. (ECF No. 41). On August 8, 2016, respondents filed a motion for leave to file a

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supplemental opposition. (ECF No. 44). The motion for leave to file a supplemental opposition is

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granted, to the extent that this Court has considered respondents’ arguments.

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The Court has reviewed all of the parties’ arguments for and against granting leave to

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amend. (ECF Nos. 24, 27, 29, 41, 43, 44, 45, 46). The Court should freely give leave to amend

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when justice so requires. Fed. R. Civ. P. 15(a)(2). The Court agrees with petitioner that, generally,

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a case this complex requires several months of review, investigation, and preparation before an

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adequate amended petition can be filed. At the time of filing the motion for leave to file a third

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amended petition, petitioner’s counsel had not yet had sufficient time to fully investigate the case,

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review the record, and research the claims. Granting counsel leave to file a third amended petition

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once counsel has had an adequate opportunity to review the entire record and plead the claims in full

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serves the interests of justice. The Court rejects respondents’ arguments to deny leave to amend.

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Specifically and most importantly, the Court rejects respondents’ supposition that one or more

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claims within the third amended petition are unexhausted and therefore futile. This Court has not

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yet had occasion to rule on whether any claims in the third amended petition are unexhausted.

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Moreover, even if some claims are unexhausted, this does not make them futile. The Court will also

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need to rule on whether a stay and abeyance is warranted. These questions are better answered once

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there is a response to the third amended petition and briefing on that response is complete.

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Petitioner’s motion for leave to file a third amended petition is granted in the interests of justice.

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Petitioner has filed a motion to waive the portion of Local Rule IA 10-3(e) that requires the

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cover page of each exhibit to include a description of the exhibit. (ECF No. 39). Local Rule IA 1-4

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permits the Court to waive any of the Local Rules if the interests of justice so require. Petitioner

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argues that adding descriptors to the cover page of each exhibit is unduly burdensome given the

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large number of exhibits filed in this case, and given the limited resources of the Office of the

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Federal Public Defender. Petitioner has filed an index of exhibits to the amended petitions and each
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exhibit includes a cover sheet referencing the exhibit by number. The Court finds that the interests

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of justice are best served by partially waiving Local Rule IA 10-3(e), so that the cover page of each

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exhibit need not include a description of the exhibit.

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On July 14, 2016, petitioner filed a motion to seal certain exhibits to the third amended

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petition. (ECF No. 38). The motion itself was filed under seal, therefore, the next day, petitioner

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filed an amended motion to seal exhibits, which was not filed under seal and contained the same

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arguments expressed in the earlier motion. (ECF No. 40). Petitioner seeks permission to file

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exhibits 142-146 under seal because the exhibits contain confidential information. These exhibits

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were submitted under seal for in camera review. (ECF No. 38, 1-8).

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While public access to judicial filings and documents is favored, see Nixon v. Warner

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Communication, Inc., 435 U.S. 589, 597 (1978), a party may have a judicial record sealed by

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demonstrating “compelling reasons” that outweigh the public policy favoring disclosure, including

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that the records may be used improperly, see Kamakana v. City and County of Honolulu, 447 F.3d

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1172, 1178 (9th Cir. 2006). Exhibits 142 and 146 contain petitioner’s confidential medical

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information. Exhibits 143-45 were sealed in the state court and were only released by the state

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courts with the provision that they would remain confidential. The potential harm to petitioner’s

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interests outweighs the public’s right to access Exhibits 142-146. Petitioner has made an adequate

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showing of compelling reasons to keep Exhibits 142-146 sealed. The Court therefore grants

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petitioners motions to keep Exhibits 142-146 filed under seal.

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Respondents seek an order granting a 45-day enlargement of time, from the date the Court

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decides petitioner’s motion to file a third amended petition, in which to file and serve their response

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to such petition. (ECF No. 31). Good cause appearing, respondents’ motion for an extension of

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time is granted.

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IT IS THEREFORE ORDERED that respondents’ motion for leave to file a supplemental
opposition (ECF No. 44) is GRANTED.

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IT IS FURTHER ORDERED petitioner’s motions for extensions of time to file a third

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amended petition (ECF Nos. 32 & 34) are GRANTED.

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IT IS FURTHER ORDERED petitioner’s motion for leave to file a third amended petition
(ECF No. 24) is GRANTED.
IT IS FURTHER ORDERED that petitioner’s motion to partially waive Local Rule IA 103(e) (ECF No. 39) is GRANTED.

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IT IS FURTHER ORDERED that petitioner’s motions to seal (ECF Nos. 38 & 40)

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Exhibits 142-146 are GRANTED. The Clerk of Court shall keep Exhibits 142-146 (ECF No. 38, 1-

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IT IS FURTHER ORDERED that respondents’ motion for an extension of time (ECF No.
31) in which to file a response to the third amended petition is GRANTED. Within 45 days from

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the date of service of this order, respondents SHALL FILE a response to the third amended

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petition.

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IT IS FURTHER ORDERED that if and when respondents file an answer, petitioner shall
have forty-five (45) days after service of the answer to file and serve a reply.

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DATED this 21st day of August, 2017.

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LARRY R. HICKS
UNITED STATES DISTRICT JUDGE

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