Carter v. Crowther
Filing
477
MEMORANDUM DECISION denying and striking 446 Petitioner's Motion to Amend; denying and striking 448 Petitioner's Motion to Stay; granting 452 Motion to Strike; granting 456 Motion to Strike. Signed by Judge Ted Stewart on 12/06/2011. (tls)
IN THE UNITED STATES COURT FOR THE DISTRICT OF UTAH
CENTRAL DIVISION
DOUGLAS STEWART CARTER,
Petitioner,
MEMORANDUM DECISION AND
ORDER GRANTING MOTIONS TO
STRIKE AND DENYING MOTION
TO AMEND AND RENEWED
MOTION TO STAY
vs.
ALFRED C. BIGELOW, Warden,
Case No. 2:02-CV-326 TS
Respondent.
This matter is before the Court on two Motions to Strike, one filed by the Victim’s
Representative and one filed by Respondent. Both Motions seek to strike Petitioner’s recently
filed Motion to Amend and Renewed Motion to Stay. The Court will grant both Motions to
Strike and will deny Petitioner’s Motion to Amend and Renewed Motion to Stay for the reasons
set forth below.
1
I. BACKGROUND
On September 8, 2011, Respondent filed a Motion to Dismiss for Lack of Prosecution.
The Victim’s Representative similarly sought dismissal to protect the rights established in the
Crime Victims’ Rights Act. The Court denied the requests to dismiss this action.
The Victim’s Representative sought a writ of mandamus from the Tenth Circuit Court of
Appeals pursuant to 18 U.S.C. § 3771(d)(3). Specifically, the Victim’s Representative sought
a writ of mandamus directing the district court to (1) reconsider, in light of his
CVRA rights, within two weeks its denial of the State’s motion to dismiss
Carter’s remaining § 2254 claims; (2) afford Mr. Olesen his rights under §
3771(a)(3), (4), (7), and (8) in all future proceedings; and (3) avoid all further
unwarranted delay and to report to this court within two weeks with a scheduling
order to resolve the remaining issues in the habeas case by the end of 2011, if
reconsideration of the motion to dismiss does not result in dismissal.1
Petitioner opposed the Victim’s Representative’s request for a writ of mandamus. During
the briefing before the Tenth Circuit, Petitioner informed that court that he intended to file with
this Court “a motion to amend his petition and a renewed motion to stay based upon the Brady
and Napue violations” at issue in his previous motion to stay.2 Importantly, this Court has
previously held that Petitioner’s new Brady and Napue claims are not included in the Petition
currently before the Court.3
On November 4, 2011, the Tenth Circuit denied the Victim’s Representative’s request for
mandamus, though that court agreed “that the more than nine-and-a-half-year delay [in this case]
1
Docket No. 445, at 1-2.
2
Docket No. 457, Ex. 1, at 11-12; see also id. at 17-19 & n.6.
3
Docket No. 437, at 4-5.
2
is too long.”4 Despite this, the court found that it could not conclude that the Victim’s
Representative was entitled to dismissal of this action. The court stated that “[a] part of our
consideration is the likelihood that under the present briefing schedule this habeas action will
soon be concluded by a final ruling by the district court.”5 The Tenth Circuit concluded by
“encourag[ing] the district court to hold firm to the briefing schedule and to decide the case
promptly after briefing is completed.”6
In a footnote, the Tenth Circuit addressed Petitioner’s statements concerning his plan to
seek amendment of his petition based on the Brady and Napue violations. The court stated: “To
the extent Mr. Carter seeks to assert in the district court any new claims not already asserted in
the habeas petition, he must follow the procedures set forth in 28 U.S.C. § 2244 for filing a
second or successive § 2254 habeas petition.”7
On November 10, 2011, Petitioner filed a Motion to Amend and a Renewed Motion to
Stay.8 Petitioner seeks to amend and supplement his current petition to add and supplement
claims based on the alleged Brady and Napue violations. Petitioner also renews his request to
stay this matter while he exhausts these claims in state court.
4
Docket No. 445, at 6.
5
Id. at 7.
6
Id. at 8.
7
Id. at 8 n.4.
8
Docket Nos. 446 & 448.
3
The Victim’s Representative and Respondent have both filed Motions seeking to strike
these two Motions. Both the Victim’s Representative and Respondent argue that, by filing this
Motion to Amend and Renewed Motion to Stay, Petitioner has acted contrary to the directive of
the Tenth Circuit that any new claims must be pursued under the procedures set forth in 28
U.S.C. § 2244. In addition, the Victim’s Representative argues that Petitioner has violated his
rights to proceedings free from unreasonable delay and his right to be treated with fairness.9
II. DISCUSSION
Two important principles are at issue in the determination of the Motions to Strike. First,
“federal district courts have the inherent power to manage their business ‘so as to achieve the
orderly and expeditious disposition of cases.’”10 Second, a lower court is not at liberty to act
contrary to what is dictated by a higher court.11 With these basic principles in mind, the Court
turns to the Motions to Strike.
As set forth above, this Court previously found that Petitioner’s newly alleged Brady and
Napue claims are not included in his current petition. During the briefing of the writ of
mandamus, Petitioner repeatedly informed the Tenth Circuit that it would seek to amend his
Petition in this Court to add these claims. In apparent response to these statements from
Petitioner, the Tenth Circuit specifically directed that “[t]o the extent Mr. Carter seeks to assert
in the district court any new claims not already asserted in the habeas petition, he must follow the
9
See 18 U.S.C. § 3771(a)(7), (8).
10
LaFleur v. Teen Help, 342 F.3d 1145, 1149 (10th Cir. 2003) (quoting Chambers v.
NASCO, Inc., 501 U.S. 32, 43 (1991)).
11
Ute Indian Tribe v. State of Utah, 935 F. Supp. 1473, 1516-18 (D. Utah 1996).
4
procedures set forth in 28 U.S.C. § 2244 for filing a second or successive § 2254 habeas
petition.”12 The Court finds that, by filing the Motion to Amend, Petitioner has acted in a way
that is clearly contradictory to the plain language of the Tenth Circuit. If Petitioner seeks to add
new claims, the Tenth Circuit has specifically dictated that he must follow the procedures in §
2244 for filing a second or successive petition.
Petitioner makes a variety of arguments in opposition to the Motions to Strike. First,
Petitioner argues that the Motions are not appropriate under Fed.R.Civ.P. 12(f). Both
Respondent and the Victim’s Representative cite to Rule 12(f) as a basis to strike the Motion to
Amend and Renewed Motion to Stay. Rule 12(f) provides that a “court may strike from a
pleading . . . any redundant, immaterial, impertinent, or scandalous matter.” Fed.R.Civ.P. 7
defines pleadings to include a complaint, an answer, and similar documents, but does not include
motions. As the documents at issue are not “pleadings” under the Federal Rules of Civil
Procedure, Petitioner argues that Rule 12(f) is an improper vehicle to strike the Motions.13 This
argument, however, ignores the Court’s inherent authority to manage its own docket to allow for
the disposition of cases. Therefore, the Court must reject Petitioner’s argument.
Petitioner next argues that the Motions to Strike are premature as he has filed a Petition
for Panel Rehearing in which he seeks to have the language at issue stricken from the Tenth
Circuit’s decision.14 The Court disagrees. The Tenth Circuit encouraged this Court to “hold firm
12
Docket No. 445, at 8 n.4.
13
Docket No. 463, at 3.
14
See Docket No. 457, Ex. 2.
5
to the briefing schedule and to decide the case promptly after briefing is completed.”15 By
granting the Motions to Strike, the Court can more effectively focus on those issues that remain
before the Court. If Petitioner is ultimately successful in his Petition for Panel Rehearing,
Petitioner may take any action he deems necessary at the appropriate time.
Petitioner also argues that the language at issue in the Tenth Circuit’s decision is dicta
and does not control this Court’s actions. Again the Court must disagree with Petitioner’s
assessment. The Tenth Circuit was well aware of the procedural history of this case and of
Petitioner’s plans to raise his new Brady and Napue claims in this Court. It appears that the
Tenth Circuit’s statements concerning new claims were directed at precisely the situation before
the Court. As was aptly stated by the Victim’s Representative, “[t]he Tenth Circuit said what it
meant and meant what it said.”16 The Court and Petitioner are not at liberty to ignore the clear
statement by the Tenth Circuit that, if Petitioner seeks to add new claims, he must follow the
procedures set out in 28 U.S.C. § 2244.
This brings the Court to Petitioner’s next argument, which is that the language in the
Tenth Circuit decision does not apply to his Brady and Napue claims. Petitioner argues that the
Tenth Circuit’s restriction is only related to claims not already asserted and that his new claims
are related to claims already in his Petition. This argument, however, ignores this Court’s
previous ruling that Petitioner’s new claims are not included in his Petition. Therefore this
argument fails.
15
Docket No. 445, at 8.
16
Docket No. 471, at 5.
6
Petitioner’s next argument is that the Tenth Circuit’s decision is at odds with Supreme
Court precedent. This argument is better addressed to the Tenth Circuit, which Petitioner has
done in his Petition for Panel Rehearing. Therefore, the Court need not address it.
Petitioner’s final argument is that the Victim’s Representative’s rights under the CVRA
do not trump Petitioner’s due process rights. Petitioner is correct that he has a due process right
to have his case decided. However, under the CVRA, the Victim’s Representative is afforded
certain rights, namely the right not to be excluded from court proceedings, the right to be heard,
the right to proceedings free from unreasonable delay, and the right to be treated with fairness
and respect.17 Additionally, the Respondent has an interest in the finality of Petitioner’s state
court conviction. It is the Court’s responsibility to consider and balance these rights. In this
instance, where the Tenth Circuit has provided specific guidance on how Petitioner should
proceed with claims that are not included in his Petition and Petitioner has ignored that guidance,
the Court finds that striking the Motion to Amend and Renewed Motion to Stay is an appropriate
measure.
In addition to the above, the Victim’s Representatives argues that Petitioner’s proposed
amendment should be denied because it will unduly prolong and complicate this case and will
violate the Victim’s Representative’s right to proceedings free from unreasonable delay and his
right to be treated with fairness.
Fed.R.Civ.P. 15(a) provides that “a party may amend its pleadings only with the opposing
party’s written consent or the court’s leave.” “Congress enacted [the Antiterrorism and Effective
17
28 U.S.C. § 3771(a)(3), (4), (7), & (8).
7
Death Penalty Act (“AEDPA”)] to advance the finality of criminal convictions.”18 In considering
a request to amend a habeas petition under Rule 15(a), a court should consider the aims of
AEDPA.19 Under Rule 15 and AEDPA, the Court has “the right to disapprove proposed
amendments that would unduly prolong or complicate the case.”20
Allowing Petitioner to amend his Petition to add new, unexhausted claims would frustrate
the purpose of AEDPA, unduly prolong this already delayed case, further complicate an already
complicated matter, and run afoul of the Tenth Circuit’s recent decision. This is especially true,
where as here, Petitioner’s Motion to Amend seeks much more than simply permission to amend
claims. In his Motion, Petitioner not only seeks amendment but also requests the Court revisit a
number of its prior rulings, grant him leave to conduct further discovery, grant him the authority
to further amend or supplement his Petition, and conduct an evidentiary hearing. Petitioner
essentially seeks to undue much of what has already occurred in this matter and his request, if
granted, would put this case well into its second decade of litigation. The Tenth Circuit held that
the “nine-and-a-half-year delay [in this case] is too long.”21 That court encouraged this Court to
18
Mayle v. Felix, 545 U.S. 644, 662 (2005).
19
See Ellzey v. United States, 324 F.3d 521, 526 (7th Cir. 2003) (noting that AEDPA is
designed to expedite the resolution of collateral attacks and this concern “should influence the
exercise of discretion under Rule 15(a)”).
20
Id.
21
Docket No. 445, at 6.
8
hold to the briefing schedule established “and to decide the case promptly after briefing is
completed.”22
Based upon all of these considerations, the Court finds that amendment is not proper in
this matter and will not be permitted. The Court further finds that disallowing amendment is
necessary to protect the Victim’s Representative’s statutory right to a proceeding free from
unreasonable delay and his right to be treated with fairness. Therefore, the Court will deny
Petitioner’s Motion to Amend. As Petitioner’s Renewed Motion to Stay is premised on his
Motion to Amend, it too will be denied.
III. CONCLUSION
It is therefore
ORDERED that the Motions to Strike filed by the Victim’s Representative and
Respondent (Docket Nos. 452 and 456) are GRANTED. It is further
ORDERED that Petitioner’s Motion to Amend and Renewed Motion to Stay (Docket
Nos. 446 and 448) are DENIED AND STRICKEN.
DATED December 6, 2011.
BY THE COURT:
_____________________________________
TED STEWART
United States District Judge
22
Id. at 8.
9
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