United States District Court, D. Arizona
Rosemary Marquez, United States District Judge
before the Court is Petitioner Shad Armstrong's motion
for leave to supplement his Petition for Writ of Habeas
Corpus pursuant to Federal Rules of Civil Procedure 15(a)(2)
and (d). (Doc. 58.) Armstrong is an Arizona death row
prisoner. He filed a habeas petition on July 1, 2016. (Doc.
20.) In the pending motion he seeks leave to amend his
Petition to include a claim alleging that a jury instruction
given during his sentencing proceeding was unconstitutional
under the Supreme Court's holding in Simmons v. South
Carolina, 512 U.S. 154 (1994). (See Docs. 58,
59.) Respondents filed a response in opposition to the
requested amendment, and Petitioner filed a reply. (Docs. 61,
63.) For the reasons set forth below, the motion is denied.
March 2000, a Pima County jury convicted Petitioner of
murdering, and conspiring to murder, his sister and her
fiancé. The trial judge imposed death sentences for
each murder. In 2006, following the Supreme Court's
decision in Ring v. Arizona, 536 U.S. 584 (2002), a
jury re-sentenced Petitioner to death for each murder.
State v. Armstrong, 189 P.3d 378, 383 (Ariz. 2008).
The jury was instructed: “If your verdict is that the
defendant should be sentenced to life, the defendant will not
be sentenced to death, and the Court will sentence the
defendant to either life without the possibility of release
until 25 calendar years in prison are served or natural life
which means the defendant will never be released from
prison.” RT 11/14/06 at 106. In proposed Claim Nineteen,
Petitioner contends that the Arizona Supreme Court,
recognizing the Supreme Court's recent decision in
Lynch v. Arizona, 136 S.Ct. 1818 (2016) (per
curium), found this precise instruction to be
unconstitutional and seeks amendment of his petition to add
this claim. (See Doc. 59) (citing State v.
Escalante-Orozco, 396 P.3d 798, 828-30 (Ariz. Jan. 12,
Motion to Amend
preliminary matter, Petitioner labeled his motion as a
request for leave to supplement, although he makes clear that
he seeks to amend the petition to add a claim. Petitioner
explains he requested leave to supplement so that he might be
relieved of this Court's local rule which requires the
attachment of the entire proposed amended pleading to a
motion to amend. See LRCiv 15.1(a). Accordingly, the
Court will construe the motion as one 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). A
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 petitioner has previously
amended. Foman v. Davis, 371 U.S. 178, 182 (1962);
Bonin v. Calderon, 59 F.3d 815, 845 (9th Cir. 1995).
to amend may be denied based upon the futility of amendment
alone. See Bonin v. Calderon, 59 F.3d 815, 845 (9th
Cir. 1995). 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.
seeks to supplement his Petition with a new claim that the
jury instruction given in his case was unconstitutional.
Petitioner asserts the basis for this claim is the Supreme
Court's recent decision in Lynch v. Arizona, 136
S.Ct. 1818 (2016), as recently recognized by the Arizona
Supreme Court in State v. Escalante-Orozco, 386 P.3d
798 (Ariz. January 12, 2017). Respondents assert the motion
should be denied as futile, because the proposed amendment is
untimely. The Court agrees.
habeas petition is subject to a one-year limitations period
under § 2244(d)(1). Typically, this period begins
running from the date judgment becomes final. 28 U.S.C.
§ 2244(d)(1)(A). For purposes of this motion Respondents
concede that Petitioner is correct in stating this period
expired on July 5, 2016. (See Doc. 16 at 1; Doc. 61
at 5-6.) Application of this period of limitations to