United States District Court, D. Arizona
K. Duncan United States Magistrate Judge
are Petitioner's pro per request for records and
transcripts (Doc. 15), her request to amend her petition
(Doc. 16), and her motion to strike the State's response
and for additional time for reply (Doc. 17). Respondents have
filed a response to Petitioner's motion requesting
records and her motion to strike and requesting additional
time to reply. (Doc. 18)
Creshaw-Bruce filed her Petition in November 2017, raising
seven grounds for relief. (Doc. 1) The record reflects that
since filing her Petition, Ms. Crenshaw-Bruce has been
released on parole. On March 29, 2018, Respondents filed
their limited answer, arguing the Petition should be denied
and dismissed because the claims are procedurally defaulted
and not cognizable in habeas actions. (Doc. 14 at 1)
Respondents have filed exhibits from Petitioner's state
court proceedings totaling over 2, 000 pages. (Docs. 14-1
requests that this Court require the clerk of the Maricopa
County Superior Court transfer “all records, motions
and transcripts” from her state criminal case to this
Court. (Doc. 15 at 2) When this Court ordered the Petition
served, it instructed that Respondents “may file an
answer limited to relevant affirmative defenses, including
but not limited to, statute of limitations, procedural bar,
or non-retroactivity. If the answer is limited to affirmative
defenses, only those portions of the record relevant to those
defenses need be attached to the answer.” (Doc. 8 at 3)
Respondents aver they have attached to their response all
documents relevant to their affirmative defenses. (Doc. 18 at
2-3) When the Court evaluates Respondents' affirmative
defenses, it will determine whether the record filed is
adequate to support these defenses. If the record filed is
not sufficient for a ruling on Respondents' defenses, the
Court will order Respondents to provide additional documents.
Further, as Respondents acknowledge, if the Court holds that
Respondents' affirmative defenses fail as to any of
Petitioner's grounds for relief, additional briefing will
be required, with the potential need for additional record.
Petitioner's motion requesting the filing of additional
records will accordingly be denied.
also asks the Court to strike the State's response (Doc.
14), which was filed with the Court on March 29, 2018. (Doc.
17) She asserts she did not receive a copy of the response
until April 24, 2018, and attached a copy of a “package
log” at her current address that indicates she signed
for a package. (Id. at 5) The date associated with
her signature is not legible, but the date
“4/24/2018” is written over the top of the log.
(Id.) Petitioner asks the Court to strike the
response because she received it more than three weeks after
it was filed with the Court, and during the time she
otherwise would have been preparing a reply. (Id. at
2) Respondents argue that Rule 5(b)(2)(C) provides that a
paper is served by mailing it to a person's last known
mailing address, and that in such case, service is complete
when the paper is mailed. (Doc. 18 at 1, citing Fed.R.Civ.P.
5(b)(2)(C)) Respondents emphasize that the date on which
Petitioner signed for a package within the log is illegible,
and that the date handwritten above the log has no clear
application to the date Petitioner actually signed for her
“package.” (Id. at 2) Respondents assert
they mailed a copy of the response to Petitioner on March 29,
2018, to the address corresponding to the package log, which
is the same address she used on her motion to strike.
(Id. at 1-2) Respondents also state that the package
log indicates when an item is collected by a tenant at
Petitioner's apartment complex, and not necessarily when
the item was delivered. (Id. at 2) The Court
discerns no basis under these circumstances for striking the
State's response, and for that reason will deny
Petitioner's motion to strike. The State does not oppose
an extension of Petitioner's time to file a reply to the
response (Id.), which the Court will order.
motion to amend (Doc. 16) appears to be a request for
amendment of the relief sought in her Petition to include
“justice in this matter, ” and also referral of
her case “to the federal district attorney for
prosecution.” To prevail in a habeas action pursuant to
28 U.S.C. § 2254, the petitioner must show that
“[s]he is in custody in violation of the Constitution
or laws or treaties of the United States.” After a
responsive pleading is served, a party may only amend her
petition for habeas corpus by written consent of the adverse
party or by leave of court. See Fed. R. Civ. P.
15(a). To determine whether to permit an amendment, courts
consider: “(1) bad faith; (2) undue delay; (3)
prejudice to the opposing party; (4) futility of amendment;
and (5) whether the plaintiff has previously amended [her]
complaint.” Nunes v. Ashcroft, 375 F.3d 805,
808 (9th Cir. 2004). Futility of amendment alone
can justify the denial of a motion for leave to amend.
Bonin v. Calderon, 59 F.3d 815, 845 (9th
request that her Petition be amended to include the relief of
“justice in this matter” is overly broad, and
does not specifically address a challenge “to the
validity of any confinement or to particulars affecting its
duration, ” which are “the province of habeas
corpus[.]” Muhammad v. Close, 540 U.S. 749,
750 (2004). Similarly, Petitioner's request for referral
of the case to the United States Attorney's Office is not
relief that is available under § 2254. Accordingly, to
allow the amendments Petitioner requests would be futile, and
so the Court will deny her motion request.
for the reasons set forth above, IT IS ORDERED
denying Petitioner's motion request for records
and transcripts (Doc. 15).
IS FURTHER ORDERED denying Petitioner's motion
to amend her petition (Doc. 16).
IS FURTHER ORDERED denying Petitioner's motion
to strike the State's response (Doc. 17).
IS FURTHER ORDERED granting Petitioner 30 days from
the date of this order to file her ...