Hacheney v. Obenland

Filing 36

ORDER by Judge David W. Christel granting 35 Motion to Amend. Counsel is directed to e-file their Amended Petition by 6/17/2016. (MET)

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT TACOMA

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NICHOLAS HACHENEY,

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CASE NO. 3:15-CV-05492-RBL-DWC

Petitioner,

ORDER GRANTING MOTION FOR
LEAVE TO AMEND

v.
MIKE OBENLAND,
Respondent.

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The District Court has referred this action to United States Magistrate Judge David W.

17 Christel. Petitioner Nicholas Hacheney, through court-appointed counsel Jeffrey E. Ellis, filed his
18 federal habeas Petition (“Petition”), pursuant to 28 U.S.C. § 2254, seeking relief from a state court
19 conviction. Dkt. 1. Presently pending before the Court is Petitioner’s Motion for Leave to Amend
20 Habeas Petition (“Motion”). Dkt. 35.
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BACKGROUND
On July 16, 2015, Petitioner filed his Petition raising six grounds for relief. See Dkt. 1.

23 After review of the Petition, the Court concluded Petitioner’s fifth ground for relief (“Ground 5”)
24 raised a Brady violation, which had not been exhausted. See Dkt. 34. On May 11, 2016, the Court
ORDER GRANTING MOTION FOR LEAVE TO
AMEND - 1

1 ordered Petitioner to show cause why Ground 5 should not be denied based on a failure to exhaust
2 and procedural default. Dkt. 34. On May 23, 2016, Petitioner filed the Motion, which the Court
3 interprets as a response to the Order to Show Cause, stating he intended to raise Ground 5 as a
4 Confrontation Clause violation. Dkt. 35. He now seeks leave to amend his Petition to clearly assert
5 a Confrontation Clause violation. Id. Petitioner states Respondent has no objection to the request to
6 amend. Id. at p. 4. 1
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DISCUSSION
A habeas petition may be amended as provided by Rule 15 of the Federal Rules of Civil

9 Procedure. Mayle v. Felix, 545 U.S. 644, 649 (2005). Pursuant to Rule 15(a),
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(1) Amending as a Matter of Course
A party may amend its 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 (f), whichever is
earlier.

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(2) Other Amendments
In all other cases, a party may amend its pleading only with the
opposing party’s written consent or the court’s leave. The court
should freely give leave when justice so requires.

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The time for filing an amended petition as a matter of course has expired. To amend his Petition,
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Plaintiff must have Respondent’s written consent or the Court’s leave. See Fed.R.Civ.P. 15(a)(2).
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Respondent has not provided written consent; however, Petitioner states Respondent does not
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object to the request to amend his Petition. Dkt. 35. Regardless of written permission from
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Respondent, the Court finds justice requires Petitioner be allowed to amend his Petition.
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Respondent has not filed a response to the Motion.

ORDER GRANTING MOTION FOR LEAVE TO
AMEND - 2

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Petitioner asserts he intended to raise Ground 5 as a Confrontation Clause violation,

2 which is how he raised this ground in the state courts. Dkt. 35. He contends he inadvertently
3 framed his claim in a manner that could be construed as a Brady claim. Id. at p. 4. The Court
4 finds Respondent will not be prejudiced by allowing Petitioner to amend his Petition to clearly
5 allege a Confrontation Clause violation in Ground 5, in part, because Respondent initially
6 interpreted Ground 5 to be a Confrontation Clause violation. See Dkt. 20. After review of the
7 record, the Court finds the interests of justice require Petitioner be given leave to amend.
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Accordingly, Petitioner’s Motion is granted as follows:
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Petitioner shall file an amended petition by June 17, 2016. In the amended

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petition, Petitioner must re-allege all grounds for relief on which he wishes to

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proceed. The amended petition will act as a complete substitute for the original

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Petition, not a supplement. The amended petition shall be noted for July 22, 2016.

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Respondent shall file a supplemental answer to the amended petition by July 1,
2016.

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Petitioner may file a supplemental response by July 15, 2016.

If Petitioner does not file an amended petition by June 17, 2016, this Court will proceed

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Dated this 8th day of June, 2016.

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A

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David W. Christel
United States Magistrate Judge

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ORDER GRANTING MOTION FOR LEAVE TO
AMEND - 3