United States District Court, D. Arizona
J. Markovich United States Magistrate Judge.
before the Court is Petitioner’s Motion to Amend under
Fed.R.Civ.P. 15(a) for Violation of Right to Counsel and
Violation of the 4th, 5th, and 6th Amendments. (Doc. 21).
Respondents oppose amendment. (Doc. 22). Also before the
Court is Petitioner’s Motion for Custody or Release of
a Prisoner in a Habeas Corpus Proceeding, Pending Review of
Decision Rule 23(A)(B-3)& (C). (Doc. 27). For the reasons set
forth below, the motions are denied.
filed his Petition for Writ of Habeas Corpus on March 6,
2015. (Doc. 1). Respondents filed an Answer on June 19, 2015
(Doc. 15), and Petitioner filed his Reply to the Response on
July 21, 2015 (Doc. 16). Accordingly, the habeas petition has
been fully briefed for almost one year.
also filed a Motion for Appointment of Counsel (Doc. 11), a
Motion to Over Turn and Dismiss for Violation of Right to
Counsel (Doc. 13), and a Motion to Expand the Record and
Expand the Petition (Doc. 17). On November 23, 2015 the Court
denied Petitioner’s Motion for Appointment of Counsel.
(Doc. 20). The Court construed the Motion to Overturn and
Dismiss as a motion to amend under Fed.R.Civ.P. 15(a), and
ordered that Document 13 shall be considered a supplement to
the § 2254 Petition. Finally, the Court granted the
Motion to Expand the Record and Expand the Petition to the
extent that the Court allowed Petitioner’s Exhibit A to
be included as an exhibit to the § 2254 Petition.
filed his Motion to Amend under Fed.R.Civ.P. 15(a) on January
29, 2016. (Doc. 21). Petitioner does not elaborate on what
his new claims would be, but states generally that he seeks
amendment based on violation of his right to counsel and
violation of the 4th, 5th, and 6th Amendments.
Motion to Amend
petition for habeas corpus may be amended pursuant to the
Federal Rules of Civil Procedure. 28 U.S.C. § 2242;
see also Rule 12, Rules Governing § 2254 Cases,
28 U.S.C. foll. § 2254 (providing that the Federal Rules
of Civil Procedure may be applied to habeas petitions to the
extent they are not inconsistent with the habeas rules). The
Court looks to Rule 15 of the Federal Rules of Civil
Procedure to address a party’s motion to amend a
pleading in a habeas corpus action. See James v.
Pliler, 269 F.3d 1124, 1126 (9th Cir. 2001).
Rule 15(a), leave to amend shall be freely given "when
justice so requires." Fed.R.Civ.P. 15(a). Courts must
review motions to amend in light of the strong policy
permitting amendment. Gabrielson v. Montgomery Ward &
Co., 785 F.2d 762, 765 (9th Cir. 1986). Factors that may
justify denying a motion to amend are undue delay, bad faith
or dilatory motive, futility of amendment, undue prejudice to
the opposing party, and whether the petitioner has previously
amended. Foman v. Davis, 371 U.S. 178, 182 (1962);
Bonin v. Calderon, 59 F.3d 815, 845 (9th Cir. 1995).
In addition, "a district court does not abuse its
discretion in denying a motion to amend where the movant
presents no new facts but only new theories and provides no
satisfactory explanation for his failure to fully develop his
contentions originally." Bonin, 59 F.3d at 845.
to amend may be denied based upon futility alone. See
Bonin, 59 F.3d at 845. To assess futility, a court
necessarily evaluates whether relief may be available on the
merits of the proposed claim. See Caswell v.
Calderon, 363 F.3d 832, 837-39 (9th Cir. 2004)
(conducting a two-part futility analysis reviewing both
exhaustion of state court remedies and the merits of the
proposed claim). If the proposed claims are untimely,
unexhausted, or otherwise fail as a matter of law, amendment
should be denied as futile. Further, "[c]ourts have been
justifiably unwilling to permit amendment to assert new
claims that were readily apparent and available when the
petition was initially filed." Halvorsen v.
Parker, 2012 WL 5866220, at *4 (E.D. Ky. Nov. 19, 2012);
cf. Jackson v. Bank of Hawaii, 902 F.2d 1385, 1388
(9th Cir. 1990) ("Relevant to evaluating the delay issue
is whether the moving party knew or should have known the
facts and theories raised by the amendment in the original
Petitioner does not actually specify what his new claims are,
nor does he provide the Court with a copy of his proposed
amended petition as required by LRCiv 15.1(a). It is thus
impossible for the Court to determine whether
Petitioner’s proposed amended claims are meritorious,
nor is the Court able to ascertain whether the claims were
readily apparent and available when the petition was
initially filed. Further, Petitioner has been in possession
of all of the documents submitted by respondents in this case
since June 2015. Thus, it is unclear what, if any,
information Petitioner would have only recently obtained that
would have given rise to new claims that were not readily
Motion for Release
requests that the Court order him to be released on his
personal recognizance until the Court issues its ruling on
the merits of the § 2254 Petition. In support of his
motion, Petitioner cites Rule 23(A)(B-3) & (C). It is wholly
unclear what rules Petitioner is referring to: Rule 23 of the
Federal Rules of Civil Procedure pertains to class actions,
while Rule 23 of the Federal Rules of Criminal Procedure
pertains to jury trials. There is no Rule 23 in either the
Local Rules of Civil Procedure or the Local Rules of Criminal
Procedure. The Court assumes that Petitioner intends to cite
Rule 23 of the Federal Rules of Appellate Procedure,
"Custody or Release of a Prisoner in a Habeas Corpus
Proceeding, " but this rule is inapplicable to the
Court’s ruling on Petitioner’s motion. See