SAUNDERS v. STATE OF NEW JERSEY et al
Filing
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OPINION. Signed by Chief Judge Jerome B. Simandle on 9/7/2016. (tf, n.m.)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
HONORABLE JEROME B. SIMANDLE
OMAR SAUNDERS,
Petitioner,
Civil Action
No. 15-2683 (JBS)
v.
STEPHEN D’ILLIO,
OPINION
Respondent.
APPEARANCES:
OMAR SAUNDERS, Petitioner Pro Se
500625/320329C
East Jersey State Prison
Lock Bag-R
Rahway, New Jersey 07065
LINDA A. SHASHOUA, Esq.
Camden County Prosecutor’s Office
Appeals Unit
25 North Fifth Street
Camden, New Jersey 08102
Attorney for Respondent Stephen D’Illio
SIMANDLE, Chief District Judge:
INTRODUCTION
This matter comes before the Court on Omar Saunders’
(“Petitioner”) motion to amend his habeas corpus petition.
Motion to Amend, Docket Entry 16. Respondent Stephen D’Illio
opposes the motion. Opposition, Docket Entry 17. This motion is
being considered on the papers pursuant to Fed. R. Civ. P.
78(b). For the reasons stated below, the motion to amend the
petition is granted in part and denied in part.
BACKGROUND
On April 1, 2015, Petitioner filed a petition for writ of
habeas corpus pursuant to 28 U.S.C. § 2254 in this Court
challenging certain aspects of his 2004 trial. Petition, Docket
Entry 1. As Petitioner did not include the filing fee or an
application to proceed in forma pauperis, the Court
administratively terminated the petition. The matter was
reopened upon receipt of the filing fee on April 21, 2015.
The Court reviewed the petition pursuant to 28 U.S.C. §
2254 Rule 4 and noted that Petitioner had not included Addendum
F, which Petitioner indicated contained the factual basis for
his fourth ground for relief. Petition ¶ 12. The Court ordered
Petitioner to submit Addendum F within 30 days or Ground Four
would be deemed waived. April 29, 2015 Order, Docket Entry 3.
Petitioner did not submit the addendum; therefore, the Court
deemed Ground Four waived and ordered Respondent to answer only
Grounds One, Two, and Three. Order to Answer, Docket Entry 4.
Respondent submitted its answer and state court record on
September 24, 2015. Answer, Docket Entry 9.
On October 26, 2015, Petitioner submitted a motion for an
extension of time to file his traverse. First Motion for
Extension, Docket Entry 10. The Court granted his motion and
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ordered him to submit his traverse by December 17, 2015. Docket
Entry 12. On December 15, 2015, Petitioner submitted a second
motion for an extension requesting an additional 30 days as the
paralegal who had been assisting Petitioner had been fired.
Second Motion for Extension, Docket Entry 14 ¶ 7. The Court
granted an extension and ordered Petitioner to submit the
traverse by February 17, 2016. Docket Entry 15. The Court
notified Petitioner that no further extensions would be
permitted absent a showing of good cause. Id.
Instead of a traverse, Petitioner submitted this motion to
amend the petition on January 22, 2016. He stated that he had
originally been advised to only raise three arguments in his
habeas petition. Motion to Amend ¶ 3. Upon consultation with the
Inmate Legal Association, Inc., he was told to amend the
pleadings to include a due process claim. Id. ¶ 4. Respondent
opposes the motion on the grounds that the statute of
limitations has expired and the amendment does not relate back
to the original petition, and that permitting the amendment
would result in undue prejudice. Petitioner did not file a
response.
STANDARD OF REVIEW
“The Federal Rules of Civil Procedure apply to motions to
amend habeas corpus motions.” United States v. Duffus, 174 F.3d
333, 336 (3d Cir.), cert. denied, 528 U.S. 866 (1999); see also
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28 U.S.C. § 2242. Rule 15(a) provides that a party may amend his
pleading once as a matter of course at any time before a
responsive pleading is filed. Once a responsive pleading is
filed, Petitioner may only amend his pleadings with Respondent’s
written consent or by leave of court. Fed. R. Civ. Pro.
15(a)(2). Respondent does not consent to the amendment. See
generally Opposition.
A court may deny leave to amend a pleading where it court
finds: (1) undue delay; (2) undue prejudice to the non-moving
party; (3) bad faith or dilatory motive; or (4) futility of
amendment. Shane v. Fauver, 213 F.3d 113, 115 (3d Cir. 2000).
“The court should freely give leave when justice so requires.”
Fed. R. Civ. Pro. 15(a)(2).
IV. ANALYSIS
Petitioner’s habeas petition is governed by the
Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”).
AEDPA imposes a one-year period of limitation on a petitioner
seeking to challenge his state conviction and sentence through a
petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254.
See 28 U.S.C. § 2244(d)(1). This limitations period applies to
new petitions “as well as amendments of existing motions to add
new claims or legal theories after the one-year period has
expired.” Mass v. United States, No. 11-2407, 2014 WL 6611498,
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at *3 (D.N.J. Nov. 20, 2014) (citing United States v. Thomas,
221 F.3d 430, 431 (3d Cir. 2000)).
Here, Petitioner filed his motion after the expiration of
AEDPA's one-year statute of limitations. Petitioner's conviction
became final on December 4, 2008, 90 days after the New Jersey
Supreme Court denied certification on his direct appeal. 28
U.S.C. § 2244(d)(1)(A); State v. Saunders, 957 A.2d 1170 (N.J.
2008). The one-year period was tolled while his post-conviction
relief (“PCR”) petition was pending in the state courts, 28
U.S.C. § 2244(d)(2), and thus did not begin to run until the New
Jersey Supreme Court denied discretionary review on January 7,
2015, State v. Saunders, 104 A.3d 1077 (N.J. 2015). As the
filing of a § 2254 petition does not toll AEDPA’s statute of
limitations, Duncan v. Walker, 533 U.S. 167, 181-82 (2001), the
one-year period expired on January 7, 2016. Petitioner did not
submit his motion until January 22, 2016, two weeks after the
expiration of the statute of limitations.
Petitioner asserts that his motion to amend was delayed due
to the seizure of his legal materials and submits the
declaration of his former inmate paralegal as support. Motion to
Amend ¶ 7; Declaration of Tivon Neals (“Neals Dec.”). Mr. Neals
indicates he was assisting Petitioner with his petition after it
had been filed and suggested that he move to amend the pleadings
as Petitioner had been “misadvised as to the grounds available
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for relief . . . .” Neals Dec. ¶¶ 3-4. He further asserts that
prison officials seized legal materials, including those related
to Petitioner’s case, on December 7, 2015. Id. ¶ 5. The
grievance printout attached to the declaration indicates the
seized materials were returned three days later on December 10.
Motion to Amend at 46. Thus, even if the Court were to equitably
toll the statute of limitations during the three days during
which Petitioner did not have access to his legal materials it
would still be late as the motion was filed more than three days
after the expiration of the statute of limitations. Moreover,
Petitioner made no mention of the seizure of his legal papers or
his intent to file a motion to amend the petition in his motion
for a second extension of time dated December 15, 2015. Second
Motion for Extension. Therefore, there is no reason to extend
the statute of limitations.
As the motion itself is untimely under § 2244, the new
grounds for relief must relate back to the original petition in
order not to be time-barred under AEDPA. “Amendments made after
the statute of limitations has run relate back to the date of
the original pleading if the original and amended pleadings
‘ar[i]se out of the conduct, transaction, or occurrence.’” Mayle
v. Felix, 545 U.S. 644, 655 (2005) (alteration in original)
(quoting Fed. R. Civ. Pro. 15(c)). In Mayle, the Supreme Court
rejected the argument that an amendment to a habeas petition
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relates back to the original petition “so long as the new claim
stems from the habeas petitioner's trial, conviction, or
sentence. Under that comprehensive definition, virtually any new
claim introduced in an amended petition will relate back, for
federal habeas claims, by their very nature, challenge the
constitutionality of a conviction or sentence, and commonly
attack proceedings anterior thereto.” Id. at 656-57. The Court
held that “relation back depends on the existence of a common
‘core of operative facts’ uniting the original and newly
asserted claims.” Id. at 659.
In his original petition, Petitioner presented three
grounds for relief: that the trial court erred by prohibiting
Petitioner’s witnesses from testifying about his statements to
them; the trial court erred by failing to question jurors after
some expressed concern for their safety and by failing to
instruct them not to allow any such concerns to influence their
deliberations; and, trial counsel was ineffective for failing to
call certain witnesses at trial. Petition, Addendums C-E. He
seeks to add a claim of prosecutorial misconduct, containing
several subparts, and a claim of ineffective assistance of
counsel.
In his claim of prosecutorial misconduct, Petitioner
alleges the prosecutor misstated the facts of the case and
criticized defense counsel in her summation; that she
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impermissibly vouched for the investigator’s credibility; and
that she commented on Petitioner’s decision not to testify. None
of the facts alleged in the proposed amendment can be said to
have a “common core of operative facts” with his original claims
concerning the trial court’s failure to admit certain evidence
and adequately instruct the jury or his trial counsel’s
performance. It is an entirely new legal theory of relief.
Petitioner’s decision to follow the advice not to include this
ground in his original petition does not excuse the late filing,1
and allowing the amendment would permit Petitioner to evade
AEDPA’s statute of limitations. As such, the prosecutorial
misconduct claim is time-barred, and the motion to amend is
denied as to Point I.
Petitioner’s ineffective assistance of trial counsel claim
as set forth in Point II is not a new legal theory, however. In
the original petition, Petitioner asserted trial counsel was
1
Petitioner was notified on several occasions that his § 2254
petition must include all of the grounds he wished this Court to
consider. He signed under penalty of perjury that “I have been
notified that I must include in this petition all the grounds
for relief from the conviction or sentence that I challenge, and
that I must state the facts that support each ground. I also
understand that if I fail to set forth all the grounds in this
petition, I may be barred from presenting additional grounds at
a later date.” Petition at 17 (emphasis added). The Court gave
Petitioner additional time to submit Addendum F, and Petitioner
elected not to do so even after being notified that failure to
provide the Addendum would constitute waiver of that ground. See
April 29, 2015 Order; Order to Answer.
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ineffective for failing to call certain witnesses at trial. See
Petition Addendum E. The “new” Point II sets forth Petitioner’s
arguments as to how those witnesses would have helped him at
trial. In other words, Point II is merely an explanation of the
facts forming the basis of Petitioner’s original Ground Three.
The facts in Point II clearly arise from the same set of
circumstances as Ground Three, namely trial counsel’s allegedly
deficient failure to present witnesses. The amendment therefore
relates back to the original petition. See United States v.
Thomas, 221 F.3d 430, 436 (3d Cir. 2000) (holding courts may
“permit an amendment to a petition to provide factual
clarification or amplification”). The Court shall therefore
continue to analyze Point II pursuant to Federal Rule of Civil
Procedure 15(a)(2).
B. Federal Rule of Civil Procedure 15
Respondent urges the Court to deny the motion to amend as
being in bad faith, prejudicial, unduly delayed, and futile. The
Court finds that none of these circumstances exist, and the
amendment shall therefore be permitted as to Point II only.
As previously noted, the motion to amend the pleadings was
filed after the AEDPA statute of limitations had passed and
after significant briefing had taken place in this matter.
However, delay alone is generally not a basis to deny a motion
to amend. See United States v. Duffus, 174 F.3d 333, 337 (3d
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Cir. 1999). Although Petitioner did not mention in either of his
motions to extend the period of time to file his traverse that
he was considering filing a motion to amend, there is
insufficient evidence in the record to conclude that the motion
was filed out of bad faith or in an effort to delay proceedings.
Furthermore, there is little prejudice to Respondents by
allowing the amendment, if any. Respondent’s answer includes a
detailed analysis of the PCR court’s evidentiary hearing wherein
trial counsel’s decision not to call the named witnesses was
analyzed under the applicable standard of review. See Answer at
66-81. In essence, Respondent has already set forth its
arguments on this point.2
In assessing futility, the Court uses the same standard as
Rule 12(b)(6). Great W. Mining & Mineral Co. v. Fox Rothschild
LLP, 615 F.3d 159, 175 (3d Cir. 2010). The Court must examine
the proposed amended pleading and determine whether, after
giving Petitioner the benefit of all reasonable inferences, the
proposed amendment states a claim for relief on its face. Under
that standard, the Court cannot say that amendment would be
futile. The Court will therefore permit the amendment of Ground
Three as set forth in Point II.
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Indeed the focus of Respondent’s prejudice analysis is on the
prosecutorial misconduct claim, not the ineffective assistance
of counsel claim. See Opposition at 3.
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In the event Respondent wishes to file a supplemental
answer responding to Point II, it may do so within 20 days of
the date of this Opinion and Order. Petitioner may submit his
all-inclusive traverse within 20 days of receipt of the
supplemental answer, or no later than 40 days of the date of
this Opinion and Order if Respondent does not file a
supplemental answer. No further extensions of time will be
permitted.
IV. CONCLUSION
For the reasons stated above, the motion to amend is denied
as to Point I and granted as to Point II.
An accompanying Order will be entered.
September 7, 2016
Date
s/ Jerome B. Simandle
JEROME B. SIMANDLE
Chief U.S. District Judge
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