JOHNSON v. JOHNSON

Filing 13

Memorandum and ORDER denying 10 Motion to Amend Petition without prejudice to the filing of a renewed motion to amend that includes a description of the proposed amendment sufficient for the Court to assess whether justice requires granting leave to amend, etc. Signed by Judge Kevin McNulty on 9/16/2019. (byl)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

JOSEPI4 JOHNSON,
Civ. No. 17-8106 (KM)
Petitioner,
MEMORANDUM AND ORDER

v.
STEVEN JOHNSON.
Respondent.

Petitioner, Joseph Johnson, is a state prisoner proceeding pro se with a petition for writ of
habeas corpus under 28 U.S.C.

§

2254. In his original petition, petitioner signed a Mason notice,

wherein he declared “under penalty of perjury that [he had] been notified that [he) must include
in this petition all grounds for relief from the conviction or sentence that [he] challenged.” (DE I
at 17.) Respondent, Steven Johnson, has filed a response to the petition, and petitioner filed a
reply to that response. (DE 7, 8.)
After filing his reply brief, petitioner filed a letter indicating that he still had a second
petition for post-conviction relief (“PCR”) pending before the state courts. (DE 9.) He
subsequently filed a motion to amend his habeas petition which is presently before the Court.
(DE 10.) Petitioner’s three-page declaration in support of his motion recites the history of
petitioner’s PCR proceeding and then asserts, “That petitioner wish[esj to expand his petition to
add a Ground Two newly discovered evidence that has been fully exhausted.” (Id) Petitioner
provides no information about the nature of this claim other than to assert that he “received
newly discovered video evidence that supported petitioner’s innocence.” (Id.
has not opposed the motion.

¶

15.) Respondent

Under 28 U.S.C.

§

2242, a motion to amend a habeas petition is governed by Federal

Rule of Civil Procedure 15.’ See 28 u.S.C.
Superintendeni

§

2242; Fed. R.

civ.

P. 15; see also Wilkerson v.

Fayette 8(7, 871 F.3d 221, 236 (3d Cir. 2017) (applying Rule 15 in habeas

proceeding). Once a party’s time to amend as matter of course under Rule 15(a)(1) has elapsed,2
an amendment requires leave of the Court. Fed. R. Civ. P. 15(a). Rule 15 directs courts to “freely
give leave when justice so requires.” Fed. R. Civ. P. 15(a)(2).
Here, petitioner fails to demonstrate that justice requires granting him leave to amend
because he provides no description of the claim he apparently desires to add. Indeed, his
declaration in support of the motion includes only two sentences regarding the amendment,
which no more than hint at a claim in some way concerning purportedly newly discovered video
evidence. (See DE 10

¶

14—15.) Without some more substantive description of a proposed

amendment, the Court has no basis to determine whether leave to amend is justified.
Furthermore, petitioner’s motion falls well short of the Local Civil Rule’s requirements for a
motion for leave to amend. Local Civil Rule 15.1 requires such a motion to include a copy of the
proposed amended pleading and “a form of the amended pleading that shall indicate in what
respect(s) it differs from the pleading it proposes to amend.”3 L. Civ. R. 15.1(a).

Additionally, Rule 12 of the Rules Governing § 2254 Cases states that “[t]he Federal Rules of
Civil Procedure, to the extent that they are not inconsistent with any statutory provisions or these rules,
may be applied to a proceeding under these rules.” Rule 12, Rules Governing § 2254 Cases, foIl. 28
U.S.C. § 2254. The Rules Governing § 2254 Cases contnin no specific provision regarding amendment.
2

A party may amend a pleading “once as a matter of course within: (A) 21 days after serving it, or
(B) if the pleading is one to which a responsive pleading is required, 21 days after service of a responsive
pleading or 21 days after service of a motion under Rule 12(b), (e), or (1), whichever is earlier.” Fed. R.
Civ. P. 1 5(a)( I). As petitioner did not tile his motion to amend until nearly a year after respondent
answered the original petition, there is no basis to permit amendment as a matter of course. (See DE 6 &
10.)
I additionally note that any new habeas claim asserted by petitioner may run up against timeliness
problems under the AEDPA one-year limitations period. Such problems could potentially be solved if the
new claim relates back to the original pleading. See Wilkerson, 871 F.3d at 236—37. Without a description
2

Accordingly, I will deny petitioner’s motion to amend without prejudice to the liling of a
renewed motion to amend that includes a description of the proposed amendment sufficient for
the Court to assess whether justice requires granting leave to amend. Petitioner must file any
additional motion to amend his petition within 45 days of the entry of this order. If the Court
receives no motion to amend within that time, it will rule on the habeas petition as filed.
Therefore, IT IS this 16th day of September, 2019
ORDERED that petitioner’s motion to amend his petition, (DE 10), is hereby denied
without prejudice to the tiling of a renewed motion to amend that includes a description of the
proposed amendment sufficient for the Court to assess whetherjustice requires granting leave to
amend; and it is further
ORDERED that petitioner must tile any renewed motion to amend his petition within 45
days of the entry of this memorandum and order; if no additional motion to amend is received
within this time, the Court will decide the original habeas petition based on the filings presently
before it; and it is further
ORDERED that the Clerk shall serve this memorandum and order upon petitioner by
regular U.S. mail.

KEVIN MCNULTY
United States District Judge

of the proposed new claim, however, the Court lacks any basis to determine whether relation back may be
proper.

3