Opinion
Civil No. 03cv1463 J (RBB).
March 29, 2006
Before the Court are Magistrate Judge Ruben B. Brooks' Report and Recommendation ("RR") stating that this Court should deny Petitioner Edward C. Jones' Petition for Writ of Habeas Corpus [Doc. No. 33], and subsequent RR stating that this Court should deny Petitioner's Motion to Amend Petition and Request for Stay and Abeyance [Doc. No. 40]. Also before the Court is Petitioner's second Motion to File Supplemental Objection. [Doc. No. 49.] Petitioner timely filed Objections to both RRs; Respondent Richard A. Rimmer, Acting Director of the California Department of Corrections, did not file reply briefs. [Doc. No. 41.] The issues presented have been decided without oral argument. See S.D. Cal. Civ. R. 7.1(d)(1). For the reasons set forth below, this Court REJECTS the RRs, GRANTS Petitioner's Motion to Amend and Request for Stay and Abeyance, and DENIES Petitioner's Motion to File Supplemental Objection as moot.
In accordance with its duty to construe pro se motions and pleadings liberally, the Court construes Petitioner's "Motion for Stay and Abeyance" and "Motion Requesting to Amend Objection to Report and Recommendation by Magistrate Judge," respectively, as a "Motion to Amend Petition and Request for Stay and Abeyance" and a "Motion to File Supplemental Objection." (Req. Stay; Mot. Amend Obj.); see e.g., Bernhardt v. Los Angeles County, 339 F.3d 920, 925 (9th Cir. 2003); see also infra, p. 3 (discussing Petitioner's stated intent to Amend the Petition); infra, p. 11 (discussing Petitioner's stated intent to "add to" his Objections).
Background
On July 21, 2003, Petitioner, a state prisoner proceeding pro se, filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 to challenge his San Diego Superior Court convictions for several counts of robbery, attempted robbery, and false imprisonment. [Doc. No. 1.] On August 27, 2003, Petitioner filed his First Amended Petition for Writ of Habeas Corpus. [Doc. No. 7.] On April 26, 2004, after the Court had issued three Orders granting his ongoing Requests to stay the case pending exhaustion of one of his ineffective-assistance-of-counsel claims in state court, Petitioner filed a Second Amended Petition for Writ of Habeas Corpus. [Doc Nos. 8, 15, 20, 21.]In his Second Amended Petition, Petitioner alleged that he had received ineffective assistance because trial counsel had 1) failed "to investigate and obtain favorable evidence," 2) failed to "impeach a critical witness," and 3) along with the trial court, misadvised him during plea discussions preceding trial. (Second Am. Pet. at 6-8.) Additionally, Petitioner argued that there was insufficient evidence to support his conviction for three counts of attempted robbery and to support the firearm sentencing enhancement imposed by the trial court. ( Id. at 9-10.) On September 29, 2004, Respondent filed an Answer and on October 15, 2004, Petitioner filed a Traverse. [Doc. Nos. 29, 32.]
On March 4, 2005, Magistrate Judge Brooks issued an RR that addressed and rejected each of Petitioner's claims and denied the Petition for Writ of Habeas Corpus. [Doc. No. 33.] Petitioner filed Objections to the RR and Respondent did not reply. [Doc. No. 34.] On May 2, 2005, Petitioner filed the pending Request for Stay and Abeyance. [Doc. No. 35.] In his proposed petition to the California Supreme Court, Petitioner indicates that he wishes to add four unexhausted claims to his current Petition. (Resp., Ex. A at 3-6.) Petitioner claims: 1) "trial counsel was ineffective for failure to make a [California Evidence Code section] 352 argument, or file a motion to suppress and object to inadmissible evidence of another crime"; 2) the trial court failed to give a "limiting instruction to the jury as the state introduced evidence of Petitioner's prior crimes"; 3) "other crime" evidence was irrelevant and its admission violated his due process rights; and 4) appellate counsel was ineffective by failing to raise these grounds on direct appeal. ( Id. at 3-6.) Petitioner recognizes that the claims have not been exhausted in the California courts. ( See Req. at 2.)
Respondent filed an Opposition to Petitioner's Motion on May 17, 2005, and Petitioner filed his Response on June 3, 2005. [Doc. Nos. 37, 39.] The claims Petitioner wishes to exhaust are not contained in his Second Amended Petition. Petitioner indicates in his Response that he seeks to amend his Petition and stay the proceedings before this Court in order to exhaust his unexhausted claims in state court. (Resp. at 2-3.) Consequently, this Court liberally construes Petitioner's Request for Stay and Abeyance to comprise a Motion to Amend the Petition. See Bernhardt v. Los Angeles County, 339 F.3d 920, 925 (9th Cir. 2003); Knaubert v. Goldsmith, 791 F.2d 722, 729 (9th Cir. 1986) (citing Haines v. Kerner, 404 U.S. 519, 520 (1972)); Bashor v. Risley, 730 F.2d 1228, 1234 (9th Cir. 1984) (requiring the district court to construe pro se filings more liberally than it would construe those drafted by counsel). Lastly, Petitioner filed a second Motion to file Supplemental Objection subsequent to the previous one having been denied by the Court. [Doc. Nos. 44, 46, 49.]
Discussion
I. Legal StandardThe duties of the district court in connection with a magistrate judge's RR are set forth in Rule 72(b) of the Federal Rules of Civil Procedure and 28 U.S.C. § 636(b)(1). See Fed.R.Civ.P. 72(b); 28 U.S.C. § 636(b)(1) (2005). The district court must "make a de novo determination of those portions of the report . . . to which objection is made," and "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1) (2005); see United States v. Raddatz, 447 U.S. 667, 676 (1980).
Before a federal court may grant a petitioner habeas relief, the petitioner is required to exhaust all available state court remedies with respect to all claims contained in the petition. See 28 U.S.C. § 2254(b) (1996); Kelly v. Small, 315 F.3d 1063, 1066 (9th Cir. 2003). Exhaustion requires that the petitioner give the highest state court a "fair opportunity" to address each claim before presenting the claims in a federal habeas petition. See Kelly, 315 F.3d at 1066-69; see also Gatlin v. Madding, 189 F.3d 882, 888 (9th Cir. 1999) (finding that to properly exhaust a habeas claim, "a petitioner must present his claim to the state supreme court"). The petitioner "must describe in the state proceedings both the operative facts and the federal legal theory on which his claim is based `so that the [court has] a "fair opportunity" to apply controlling legal principles to the facts bearing upon his constitutional claim.'" Kelly, 315 F.3d at 1066 (quoting Anderson v. Harless, 459 U.S. 4, 6 (1982)).
II. Petitioner's Motion to Amend
A. Legal Standard
Under Federal Rule of Civil Procedure 15(a), "[a] party may amend the party's pleading once as a matter of course at any time before a responsive pleading is served." Fed.R.Civ.P. 15(a). After an answer is filed, "a party may amend the party's pleading only by leave of court or by written consent of the adverse party." Id. Leave to amend under Rule 15(a) "shall be freely given when justice so requires." Id. It rests in the sound discretion of the trial court whether to grant a party's request for leave to amend. See Bonin v. Calderon, 59 F.3d 815, 845 (9th Cir. 1995) (citing Outdoor Sys., Inc. v. City of Mesa, 997 F.2d 604, 614 (9th Cir. 1993)).
In general, "Rule 15's policy of favoring amendments to pleadings should be applied with `extreme liberality.'" United States v. Webb, 655 F.2d 977, 979 (9th Cir. 1981) (citing Rosenberg Bros. Co. v. Arnold, 283 F.2d 406 (9th Cir. 1960) (per curiam)). The policy of favoring amendments under Rule 15(a) "is applied even more liberally to pro se litigants" than to parties represented by counsel. Eldridge v. Block, 832 F.2d 1132, 1135 (9th Cir. 1987).
The factors to be considered in deciding whether to grant a motion to amend are "bad faith, undue delay, prejudice to the opposing party, futility of the amendment, and whether the party has previously amended his pleadings." Bonin, 59 F.3d at 845 (citing W. Shoshone Nat'l Council v. Molini, 951 F.2d 200, 204 (9th Cir. 1991)). "Delay alone no matter how lengthy is an insufficient ground for denial of leave to amend." Webb, 655 F.2d at 980. "Futility of the amendment can, by itself, justify the denial of a motion for leave to amend." Bonin, 59 F.3d at 845. However, as the U.S. Court of Appeals for the Ninth Circuit has held, "it is the consideration of prejudice to the opposing party that carries the greatest weight." Eminence Capital, LLC v. Aspeon, Inc., 316 F.3d 1048, 1052 (9th Cir. 2003); see also DCD Programs, Ltd. v. Leighton, 833 F.2d 183, 185 (9th Cir. 1987) (stating that prejudice is the "touchstone of the inquiry under rule 15(a)"); Howey v. United States, 481 F.2d 1187, 1190 (9th Cir. 1973) (stating that "the crucial factor is the resulting prejudice to the opposing party").
B. Respondent Will Not Be Prejudiced by Petitioner's Leave to Amend
Respondent does not claim that he will be prejudiced by the addition of the new claims if Petitioner is allowed to amend his Petition once again. The Magistrate Judge states, and the Court agrees, that there does not appear to be any prejudice that would result, "other than delaying a final decision and requiring further briefing." (RR Re Mot. Amend at 5.) "Litigation costs have not been substantial in this case. Only an Answer, a Memorandum in Support of Answer, Lodgments, and the Opposition to the current Motion have been filed by Respondent, and costs are not likely to significantly increase if [Petitioner] were allowed to amend his Petition one more time." ( Id. (citing Ascon Props., Inc. v. Mobil Oil Co., 866 F.2d 1149, 1161 (9th Cir. 1989.))) Thus, the lack of prejudice to Respondent weighs heavily in favor of granting Petitioner's Motion to Amend.
C. Petitioner's Request Does Not Appear to Have Been Made in Bad Faith or Unduly Delayed
Petitioner filed a Petition in July 2003, filed a First Amended Petition on August 27, 2003, and requested a stay that was granted and extended twice. [Doc. Nos. 1, 5, 7, 8, 15, 20.] Petitioner filed his current Request for Stay and Abeyance on May 2, 2005, one year later and nearly two months after initiating his habeas application. ( See Req. at 1.) Petitioner submitted the instant request for permission to add new claims two months after the Magistrate Judge issued an RR favoring denial of his Second Amended Petition and more than one month after Petitioner submitted his Objections to that RR. [Doc. Nos. 33, 34.] In his Motion to Amend and Request for Stay and Abeyance, Petitioner does not explain why he was delayed in seeking to add these claims or why the claims were not included in his last petition to the California Supreme Court.
However, in his Objection to the RR with Regard to Denial of Motion to Amend, Petitioner offers the following justifications for the delay: 1) his prison failed to provide adequate legal assistance; 2) he only had two hours per week to use the law library; and 3) prison lockdowns from December 26, 2003, to June 29, 2005, inhibited his use of the law library and jailhouse legal assistance. (Pet.'s Objections to RR Re Mot. Amend Request for Stay at 8-9.) Additionally, Petitioner's "Jailhouse Assistance" filed a declaration stating he discovered these new claims after the Magistrate Judge issued his RR and that the lockdowns account for the delay. ( Id. at Ex. B.) Respondent has not filed a reply brief contesting Petitioner's stated excuses for the delay. Therefore, this Court ACCEPTS Petitioner's justifications, finding that the delay was not "undue" and that Petitioner did not act in bad faith. This factor weighs in favor of granting Petitioner's Motion.
D. The Argument that Petitioner's Claims Are Futile Is Persuasive but Not Compelling 1. Failure to Make an Argument Pursuant to Section 352, or to File a Motion to Suppress and Object to Inadmissible Evidence of Another Crime
A habeas petitioner alleging constitutionally ineffective assistance of counsel must establish each of two prongs: 1) that counsel's performance fell below an objective standard of reasonableness under prevailing norms of practice; and 2) that the defendant was prejudiced, in the sense that he would have received a more favorable result but for counsel's unprofessional errors. Strickland v. Washington, 466 U.S. 668, 687 (1984). In the present case, Petitioner argues his trial counsel should have tried to exclude evidence of 1) Petitioner's car chase with police and subsequent arrest occurring three days after the robbery, 2) his discarding of a gun from the car during the pursuit, and 3) photographs of the crashed car and gun. (Pet.'s Objections to RR Re Mot. Amend Request for Stay at 3-6.) Petitioner contends that these acts were consistent with an "ex-felon merely not wanting to be captured with a firearm." ( Id. at 4-5.) Thus, Petitioner now alleges that the jury was misled and allowed to make impermissible inferences that these acts resulted from his suspicion that police suspected him in the robbery. ( Id.)
The trial court found that the gun matched the description of the gun used in the robbery. ( See Lodgment No. 5, People v. Jones, slip op. at 9.)
Even if Petitioner is able to prove that the decision of trial counsel or appellate counsel not to raise these specific issues fell below an objective standard of reasonableness, it is unlikely he will be able to show that the result at the trial level or on appeal would have been more favorable had the attorneys made such arguments. The California Court of Appeal rejected the ineffective assistance of trial counsel argument raised by Petitioner's appellate attorney. ( See Lodgment No. 5, People v. Jones, No. D038250, slip op. at 12-13 (Cal.Ct.App. Oct. 2, 2002.)) The appellate court found that "the evidence of [Petitioner's] guilt was overwhelming" and concluded that it was "not reasonably probable that but for counsel's alleged deficiencies Petitioner would have received a more favorable result." ( Id.) Moreover, the trial court found that Petitioner's trial counsel faced "insurmountable problems" in defending Petitioner. ( Id. at 9.) Specifically, that court found that counsel could not have overcome 1) the eyewitness identification of Petitioner, 2) his fingerprint on a bag found at the scene, 3) the fact that he was driving his co-defendant's car when apprehended, 4) his possession of a gun that matched the description of the one used during the robbery, and 5) the fact that his alibi defense was not credible. ( Id. at 9-11.) Therefore, it appears that if trial counsel had made the objection or if Petitioner's appellate counsel had argued that trial counsel was ineffective for failure to make such an objection, the arguments would not likely have changed the result in either court. Without proof of prejudice, Petitioner's claim is likely futile. See Strickland, 466 U.S. at 687.
2. Trial Court's Alleged Failure to Give a Limiting Instruction Regarding Evidence of Petitioner's Prior Crimes
It is improbable that a limiting instruction regarding the evidence surrounding Petitioner's arrest would have altered the jury's verdict. Likewise, the Court is not convinced that appellate counsel improperly neglected to raise this issue. First, as previously stated, the trial court found that Petitioner's counsel faced "insurmountable problems" in trying to overcome the evidence; the appellate court found that the evidence was "overwhelming." (Lodgment No. 5, Jones, slip op. at 9, 12-13). Second, the appellate court would almost certainly not have reversed for a new trial because the trial court generally has no sua sponte duty under California law to instruct the jury regarding the limited admissibility of evidence of past criminal conduct. People v. Milner, 753 P.2d 669, 685 (Cal. 1988). Thus, it is highly doubtful that either the lack of a limiting instruction at trial or the subsequent failure of appellate counsel to raise this issue prejudiced Petitioner.
3. Trial Court's Admission of Evidence Alleged to Be Irrelevant
Petitioner argues that when the trial court admitted evidence surrounding his arrest, it impermissibly admitted "other acts evidence" as character evidence. (Pet.'s Objections to RR Re Mot. Amend Request for Stay at 5-6.) Petitioner alleges that its inclusion was inflammatory, rendered his trial fundamentally unfair, and ultimately violated his due process rights. ( Id.)
The Court of Appeals has explained that the use of "other acts" as character evidence not only is impermissible under federal and California rules of evidence, but also can constitute a violation of a defendant's due process rights. McKinney v. Rees, 993 F.2d 1378, 1380, 1385 (9th Cir. 1993) (affirming habeas relief on such grounds). In McKinney, the court concluded that much of the disputed evidence against the defendant was "other acts evidence" probative only of character and, thus, irrelevant. McKinney, 993 F.2d at 1384. The court stated that the next step was to determine whether the admitted evidence "was of such quality as necessarily prevents a fair trial." Id. (citing Kealohapauole v. Shimoda, 800 F.2d 1463, 1465).
In analyzing whether the trial was fundamentally unfair, the court looked to Brecht v. Abrahamson, 507 U.S. 619, 623 (2003). In Brecht, the Court held that a federal court reviewing whether the state prosecution's use of the defendant's post- Miranda silence necessitates habeas corpus relief must determine whether the error had "`substantial and injurious effect or influence in determining the jury's verdict.'" Brecht, 507 U.S. at 623 (quoting Kotteakos v. United States, 328 U.S. 750, 776). The McKinney court applied this standard in its due process analysis and ultimately found that the "lack of a `weighty' case" and "pervasiveness of the erroneously admitted evidence throughout the trial" had a substantial and injurious effect in determining the jury's verdict. McKinney, 993 F.2d at 1386.
Unlike the defendant in McKinney, Petitioner does not show a lack of a "weighty" case or a pervasiveness of "erroneously admitted evidence." Id. As discussed, the trial court and the appellate court noted that Petitioner confronted "insurmountable" and "overwhelming" evidence. (Lodgment No. 5, Jones, slip op. at 9, 12-13.) Therefore, even if Petitioner is correct in stating that the "other acts evidence" was improperly admitted as character evidence, other "weighty" evidence minimizes the likelihood that the trial was fundamentally unfair and that Petitioner's due process rights were violated.
4. Case for the Futility Doctrine
In sum, as indicated in the Magistrate Judge's RR with Regard to Denial of Motion to Amend, the likelihood that Petitioner's claims are futile would weigh in favor of denying Petitioner's Motion to Amend. (RR Re Mot. Amend at 6-7.) Yet the Ninth Circuit's treatment of the futility doctrine would militate against such a result. Although neither the U.S. Supreme Court nor the Ninth Circuit has defined the precise contours of the futility doctrine, the Ninth Circuit has been most willing to apply the doctrine in those cases where "the highest state court has recently addressed the issue raised in the petition and resolved it adversely to the petitioner." Sweet v. Cupp, 640 F.2d 233, 236 (9th Cir. 1981). Furthermore, the Ninth Circuit has indicated that "[t]he case for the futility doctrine is most compelling where the question is one of pure law, and the circumstances of the individual case are largely irrelevant." Noltie v. Peterson, 9 F.3d 802, 806 (9th Cir. 1993). In the present action, it is neither the case that the California Supreme Court has recently addressed Petitioner's specific claims and decided them adversely to him, nor that Petitioner has presented questions of pure law. The Court thus notes that while the case for denying Petitioner leave to exhaust additional claims in state court on futility grounds is persuasive, it is not compelling in itself.
E. Petitioner Previously Amended the Petition
"A party may amend the party's pleading once as a matter of course at any time before a responsive pleading is served. . . ." Fed.R.Civ.P. 15(a). The Appeals Court has stated that "[t]he district court's discretion to deny leave to amend is particularly broad where plaintiff has previously amended the complaint." Ascon Props. Inc., 866 F.2d at 1160. Petitioner has amended his Petition twice. [Doc. Nos. 7, 21.] Petitioner filed the First Amended Petition as of right; he filed the Second Amended Petition in compliance with a Court Order. The fact of Petitioner's two prior amendments weighs against granting Petitioner's Motion.
III. Petitioner's Request for Stay and Abeyance
A federal court has discretion to stay a fully exhausted habeas petition in order to permit a petitioner to return to state court to exhaust any unexhausted claims. See Kelly v. Small, 315 F.3d 1063, 1070 (9th Cir. 2003); James v. Pliler, 269 F.3d 1124, 1126-27 (9th Cir. 2001). However, "stay and abeyance is only appropriate when the district court determines there was good cause for the petitioner's failure to exhaust his claims first in state court [and] . . . when his unexhausted claims are [not] plainly meritless." Rhines v. Weber, 125 S. Ct. 1528, 1531 (2005).
As discussed above, the Court ACCEPTS Petitioner's justification for his delay as "good cause" for his failure to exhaust the ineffective-assistance-of-counsel claims in state court prior to bringing the current habeas petition. ( See supra, Section II C.) Moreover, as discussed earlier in this Order, Plaintiff shows a sufficient basis to amend his Petition. ( See supra, Section II.) Therefore, the Court FINDS that Petitioner's proposed amendments warrant a stay and abeyance.
IV. Petitioner's Motion to File Supplemental Objection
Lastly, Petitioner presents a second Motion to file Supplemental Objection, embroidering it with the misnomer, "Motion Requesting to Amend Objection." [Doc. No. 49.] In this Motion, Petitioner stresses that he "wishes to add to prior Objections . . . necessary before the Honorable U.S. District Judge make [sic] a decision in the above entitled case." (Mot. Amend Obj. at 1.) The request Petitioner issues in this Motion is wholly redundant with that contained in Petitioner's prior Motion to file Supplemental Objection ( compare Mot. Suppl. Obj. at 1 (requesting to "file Supplement [sic] Objection"), with Mot. Amend Obj. at 1 (requesting to "add to prior Objections")); the Court adequately responded to Petitioner's request in its Order Denying Petitioner's Motion to File Supplemental Objection ( see Order Den. Mot. Suppl. Obj. at 1-2). Moreover, as discussed above, the Court now FINDS that Plaintiff demonstrates sufficient grounds to amend his Petition. The Court therefore DENIES Petitioner's second Motion to File Supplemental Objection as moot.
Conclusion
In sum, Petitioner has had previous opportunities to amend his petition and he is not likely to prevail in state court on his new claims. However, several considerations abate these factors: 1) Petitioner does not appear to proceed with bad faith or undue delay; 2) there is nominal prejudice to Respondent by the Court's granting of Plaintiff's Motion; and 3) the case for futility is not compelling. While the Court notes that Respondent's arguments are not devoid of significance, it is ultimately disposed to find in Petitioner's favor for three principal reasons: 1) amendments to pleadings should be applied with "extreme liberality" ( Webb, 655 F.2d at 979); 2) the policy of favoring amendments under Rule 15(a) "is applied even more liberally to pro se litigants" ( Eldridge, 832 F.2d at 1135); and 3) the consideration of prejudice to the opposing party is the factor that "carries the greatest weight," negligible prejudice accruing to Respondent in the instant case if Petitioner is permitted to amend the Petition ( Eminence Capital, LLC, 316 F.3d at 1052).For the foregoing reasons, the Court REJECTS the RRs, GRANTS Petitioner's Motion to Amend and Request for Stay and Abeyance, and DENIES as moot Petitioner's Motion to File Supplemental Objection. The Court HOLDS IN ABEYANCE the Second Amended Petition pending Petitioner's exhaustion in state court of the following claims: 1) that Petitioner's trial counsel was ineffective for failing to make an argument pursuant to Section 352, or file a motion to suppress and object to inadmissible evidence of another crime; 2) that the trial court failed to give a limiting instruction regarding evidence of Petitioner's prior crimes; 3) that the trial court impermissibly admitted "other acts evidence" surrounding Petitioner's arrest; and 4) that Petitioner's appellate counsel was ineffective for failing to raise these grounds on direct appeal. The Court STAYS proceedings in this action until September 27, 2006. On or before September 27, 2006, Petitioner is required to file with this Court either a third amended petition containing only exhausted claims, or a status report of the progress of the proceedings before the state court. Finally, the Court ADVISES Petitioner to be prudent in his formulation of the third amended Petition as it is not inclined to grant further leave to amend.
IT IS SO ORDERED.