Opinion
No. CV 98-2164-PHX-SMM, DEATH PENALTY CASE.
December 4, 2006
ORDER
Petitioner moves for leave to amend his habeas petition to add Claim 16, which he advises has been exhausted through the state courts pursuant to this Court's stay of proceedings. (See Dkt. 102, 32.) Petitioner further requests that the Court establish a merits briefing schedule for Claim 16. (Dkt. 102.) Respondents have neglected to respond to Petitioner's motion. At this juncture, it is unclear whether Claim 16 should be re-added to the amended petition because amendment may be futile. Therefore, and because the instant motion fails to address the standard for amendment, the motion is denied without prejudice to refile.
DISCUSSION
Petitioner, William Bracy and Edward McCall were convicted in Arizona state court of the Redmond/Phelps homicides. State v. Hooper, 145 Ariz. 538, 703 P.2d 482 (1985); State v. Bracy, 145 Ariz. 520, 703 P.2d 464 (1985); State v. McCall, 139 Ariz. 147, 677 P.2d 920 (1983). Petitioner and Bracy were tried together and both were sentenced to death in February 1982. At sentencing, the state court found the existence of Arizona's (F)(1) aggravating factor — that the defendant had been convicted of an offense for which a sentence of life imprisonment or death was imposable, A.R.S. § 13-703(F)(1) — based on Petitioner's 1981 triple-homicide conviction in Illinois. See Hooper, 145 Ariz. at 550, 703 P.2d at 494.
In Claim 16, Petitioner alleged that his Arizona death sentence is unconstitutional because it rests, in part, on an invalid murder conviction in Illinois. Petitioner sought, and this Court granted, leave to return to the Arizona state courts to assert newly-discovered evidence concerning the validity of his Illinois murder conviction; specifically, that his trial judge, Cook County Circuit Court Judge Thomas Maloney, was subsequently convicted for taking bribes regarding criminal cases ("the Maloney Claim"). (Dkt. 29 at 9, Dkt. 31 at 59.) Upon initial review of Petitioner's amended petition, the Court determined that Claim 16 was unexhausted because it appeared Petitioner had a remedy in state court to pursue the claim. (Dkt. 32.) This rendered Petitioner's habeas petition mixed pursuant to Rose v. Lundy, 455 U.S. 509, 510 (1982). Petitioner withdrew Claim 16 (dkt. 34), and this Court stayed his habeas petition pending the outcome of state post-conviction proceedings (dkt. 32).
Judge Maloney was convicted of racketeering based on evidence that he accepted bribes from criminal defendants, including murder defendants, around the time Petitioner's case was tried. See United States v. Maloney, 71 F.3d 645 (7th Cir. 1995); see also Bracy v. Gramley, 520 U.S. 899 (1997).
Subsequent to this Court's Order, in Rhines v. Weber, 544 U.S. 269, 277 (2005), the Supreme Court modified a district court's ability to stay a mixed habeas petition when litigating under the AEDPA. The Court held that a district court has discretion to stay a mixed habeas petition and allow a petitioner to exhaust state court remedies so long as there is a determination of good cause for the failure to first exhaust state court remedies and that the unexhausted claims are not plainly meritless.
Subsequently, Petitioner initiated Arizona post-conviction relief ("PCR") proceedings on his Maloney Claim. The Arizona PCR court stayed those proceedings while Petitioner sought post-conviction relief in Illinois. (Dkt. 102.) Although the Illinois proceedings are still ongoing, at some point the Arizona PCR court lifted the stay and denied relief. (Id.) The instant motion does not include a copy of the Arizona PCR court's disposition of Claim 16. Nor does the motion address the applicable standard for amendment.
A petition for habeas corpus may be amended pursuant to the Federal Rules of Civil Procedure. 28 U.S.C. § 2242; see also Rule 11, 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 the rules are not inconsistent with the habeas rules). Thus, 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 Calderon v. United States Dist. Ct. for the N. Dist. of Cal., 134 F.3d 981, 986 n. 6 (9th Cir. 1998) (citing Withrow v. Williams, 507 U.S. 680, 696 n. 7 (1993)). Under Rule 15, leave to amend "shall be freely given when justice so requires," Fed.R.Civ.P. 15(a), and 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).
The factors which may justify denying a motion to amend are undue delay, bad faith or dilatory motive, futility of amendment, and undue prejudice to the opposing party. Foman v. Davis, 371 U.S. 178, 182 (1962). Leave to amend may be denied based upon futility 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 proposed claims. 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); Stafford v. Saffle, 34 F.3d 1557, 1560 (10th Cir. 1994) (reviewing the evidence presented at trial and determining it would be futile to allow the addition of a sufficiency of the evidence claim).
Under Caswell, this Court may not grant leave to Petitioner to add Claim 16 if it is plainly meritless. Unfortunately, the instant motion fails to address the standard for amendment, and it is unclear whether amendment is appropriate. Consequently, if Petitioner desires to add Claim 16 to his amended petition, he must refile his motion and address these standards for seeking leave to amend his amended petition.
As previously ordered, once Petitioner completed exhaustion of Claim 16, he may, if appropriate, "move this Court for leave to amend his petition." (Dkt. 55 at 3.) However, before this Court may grant leave to amend, the standard for amendment must be satisfied.
Accordingly,
IT IS HEREBY ORDERED denying, without prejudice to refile, Petitioner's motion for leave to amend his habeas petition to add Claim 16 and denying Petitioner's request for a briefing schedule regarding this Claim. (Dkt. 102.)