Opinion
No. CV 97-1331-PHX-JAT, DEATH PENALTY CASE.
March 19, 2007
ORDER RE: MOTION TO AMEND
Pending before the Court is Petitioner's Motion for Leave to File Second Amended Petition. (Dkt. 145). Respondents have filed a response and Petitioner has filed a reply. (Dkts. 147, 151.) Petitioner seeks leave to add five claims, Claims 32-36, which he recently presented in state court in a successive petition for post-conviction relief.
PROCEDURAL BACKGROUND
On June 26, 1997, Petitioner filed his initial petition in this Court, and the Court appointed counsel. (Dkts. 1, 2.) After briefing, the Court issued a ruling on the procedural status of the twelve claims raised in the Amended Petition, dismissing all except portions of Claims 1 and 2. (Dkt. 26.) Due to concerns regarding the quality of representation provided by Petitioner's CJA-appointed habeas counsel, the Court substituted the Federal Public Defender (FPD) as counsel and allowed Petitioner to file a motion to amend. (Dkts. 40, 55.) On February 16, 2001, the FPD was granted leave to review the record; on November 26, 2003, the FPD sought amendment of the petition on behalf of Petitioner. (Dkts. 40, 76.) The Court allowed the amendment in its entirety, and reconsidered its procedural rulings based on arguments made by Petitioner's new counsel. (Dkt. 83.) The Court subsequently granted a stay of the sentencing claims, to allow Petitioner to seek relief from his death sentence in state court based on a claim of mental retardation pursuant to Atkins v. Virginia, 536 U.S. 304 (2002). (Dkt. 119.) The stay is ongoing. The Court limited the FPD's authority in state court strictly to raising a claim based on Atkins. (Id.) After the FPD filed a notice of post-conviction relief (PCR) in state court, private counsel filed a separate successive PCR notice raising the five claims as to which amendment is now sought. (Dkt. 145 at 3 Ex. A.) The notice filed by private counsel was summarily dismissed, and a petition for review was filed and denied. (Id., Exs. B, C, D.)
The PCR court has denied Petitioner's Atkins claim, and Petitioner is currently pursuing a motion for rehearing. (Dkt. 156.)
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 James v. Pliler, 269 F.3d 1124, 1126 (9th Cir. 2001). 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, 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).
Leave 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); 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). If proposed claims are untimely, unexhausted, or otherwise fail as a matter of law, amendment should be denied as futile.
ANALYSIS
Claims 32, 33, 35, and 36: Futility
The Court finds that amendment is properly denied as futile, based on the statute of limitations and/or the merits, as to Claims 32, 33, 35, and 36. Statute of Limitations
Respondents also contend that all five claims were procedurally barred in state court and, therefore, amendment to add them would be futile. The PCR court dismissed these claims because they "were or could have been raised" in a prior proceeding. (Dkt. 145, Ex. 2). Because this language is ambiguous and does not distinguish claims previously raised, which are exhausted, from claims waived for failure to raise them previously, it does not function as an adequate bar to federal review. See Valerio v. Crawford, 306 F.3d 742, 774-75 (9th Cir. 2002) (en banc); Koerner v. Grigas, 328 F.3d 1039, 1049-50 (9th Cir. 2003); Ceja v. Stewart, 97 F.3d 1246, 1253 (9th Cir. 1996).
Under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), 28 U.S.C. § 2254, a one-year statute of limitations applies to petitions for writ of habeas corpus by state prisoners. See 28 U.S.C. § 2244(d)(1). Petitioner does not dispute that the proposed second amended petition was not lodged within the initial one-year limitations period; rather, he contends all of the newly proposed claims relate back to his prior timely pleadings. Federal Rule of Civil Procedure 15 provides, in relevant part, that an amended pleading "relates back to the date of the original pleading when . . . (2) the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading." Fed.R.Civ.P. 15(c)(2). Amended habeas claims relate back to timely habeas claims when they are "tied to a common core of operative facts"; they do not relate back if they arise out of "events separate in `both time and type' from the originally raised episodes." Mayle v. Felix, 545 U.S. 644, 657 (2005) (rejecting broad construction which equated "conduct, transaction, or occurrence" with trial, conviction, or sentence).
Because Petitioner's original habeas petition was filed after April 24, 1996, it is governed by the AEDPA. See Lindh v. Murphy, 521 U.S. 320, 335-36 (1997).
Claim 32
Based upon Tennard v. Dretke, 542 U.S. 274 (2004), Petitioner alleges that the trial court violated his constitutional rights by requiring him to establish a causal connection between the crime and the mitigation evidence he offered at sentencing. (Dkt. 145 at 110-12.) Petitioner contends this claim relates back to Claims 4 and 5 of his petition.
Claim 4 alleged that the Arizona Supreme Court failed to give effect to mitigating evidence that did not impact on the commission of the crime. Claim 4 addressed an error alleged to have been committed by the Arizona Supreme Court on direct appeal, while Claim 32 alleges error by the trial court at sentencing. Thus, Claim 32 does not relate back to Claim 4 because the claims arise out of events separate in time and type. Claim 5 alleged that the Arizona death penalty statute imposes an improper burden of proof for mitigating evidence. Claim 32, alleging an unconstitutional application of the law to Petitioner's specific mitigating evidence, is different in time and type from Claim 5's facial challenge to the Arizona death penalty statute; therefore, proposed Claim 32 does not relate back to Claim 5.
Even if Claim 32 related back to the petition, thus satisfying the statute of limitations, it has no merit. Petitioner alleges that, because the trial court determined Petitioner had proved several compelling mitigating circumstances, the only explanation for his death sentence is that the judge applied an unconstitutional nexus-to-the-crime requirement. Petitioner's argument has no factual support in the record. The sentencing judge found that one statutory and seven non-statutory mitigating factors had been proved by a preponderance of the evidence but concluded that they were not sufficiently substantial, individually or cumulatively, to call for leniency. (See RT 12/18/90 at 10-13; ROA 112.) He considered evidence of two additional mitigating factors but found that Petitioner had not met his burden of proof as to those factors. (See RT 12/18/90 at 12-13.) The judge gave no indication that he applied a causal-connection requirement to his mitigation determination.
Petitioner contends that Arizona law at the time required a defendant to demonstrate a nexus between a mitigating circumstance and the crime, and that this Court must presume that the sentencing judge applied that requirement. While Petitioner correctly states the general principle that a judge is presumed to follow the law, application of that presumption is necessary only when the basis of the judge's decision is not apparent. See Bell v. Cone, 543 U.S. 447, 455-457 (2005) (noting that state court opinion did not specify whether it applied a specific construction of the aggravating circumstance but presuming it applied the constitutional narrowing construction). In this case, the trial court explicitly stated that it considered all the mitigating circumstances presented by Petitioner, and weighed all of the circumstances that had been proved by a preponderance of the evidence. (See RT 12/18/90 at 12, 13.) That is all the constitution requires. See Ortiz v. Stewart, 149 F.3d 923, 943 (9th Cir. 1998). Presuming that the trial court applied a causal-connection requirement and thereby excluded consideration of this evidence as mitigation is directly contrary to the record. Further, Petitioner's argument would require this Court to presume that the trial court applied allegedly unconstitutional Arizona law but did not apply constitutional law set forth by the United States Supreme Court, e.g., Lockett v. Ohio 438 U.S. 586, 604 (1978); Eddings v. Oklahoma, 455 U.S. 104, 110 (1982).
Amendment as to Claim 32 is denied as futile because the claim violates the statute of limitations and fails on the merits.
Claim 33
Petitioner alleges that his due process rights were violated by the trial court's jury instruction on premeditation because the instruction relieved the state of its burden of proving the actual reflection necessary for first degree murder and allowed a conviction based merely on the passage of time. The relevant jury instruction stated:
The Court finds that this claim relates back to Claim 10 of the prior petition, which challenged the premeditation instruction under state law.
Premeditation means that the defendant's intention or knowledge existed before the killing long enough to permit reflection. However, the reflection differs from the intent or knowledge that his conduct will cause death. It may be as instantaneous as successive thoughts in the mind, and it may be proven by circumstantial evidence. It is this period of reflection, regardless of its length, which distinguishes first degree murder from intentional or knowing second degree murder.
(RT 7/25/90 at 25.)
Petitioner's claim relies on the holding in State v. Thompson, 204 Ariz. 471, 480, 65 P.3d 420, 429 (2003). Contrary to Petitioner's argument, in Thompson the Arizona Supreme Court did not find the instruction at issue unconstitutional; rather, it found erroneous a premeditation instruction that stated "actual reflection is not required." 204 Ariz. at 480, 65 P.3d at 429. The court did "discourage" the use of the phrase "instantaneous as successive thoughts of the mind," id. at 479, 65 P.3d at 428; however, the use of an "undesirable, erroneous, or even `universally condemned'" instruction does not equate to a constitutional violation, Cupp v. Naughten, 414 U.S. 141, 146 (1973).
When a particular jury instruction is challenged, the question is whether the erroneous instruction "so infected the entire trial that the resulting conviction violates due process." Id. at 147. The Court must consider the jury instruction at issue in the context of the whole charge given the jury. See id. at 146-47; Francis v. Franklin, 471 U.S. 307, 315 (1985). The Court must assess "`whether there is a reasonable likelihood that the jury has applied the challenged instruction in a way' that violates the Constitution." Estelle v. McGuire, 502 U.S. 62, 72 (1991) (quoting Boyde v. California, 494 U.S. 370, 380 (1990)). Due process requires that the state prove every element of a crime beyond a reasonable doubt. In re Winship, 397 U.S. 358, 364 (1970); Sandstrom v. Montana, 442 U.S. 510, 520-21 (1979). Petitioner's allegation is that the premeditation instruction relieved the prosecution of the burden of proving actual reflection beyond a reasonable doubt.
The Court finds that the challenged jury instruction, on its face, does not permit a finding of premeditation based solely on the passage of time. The instruction specifically states first degree murder requires a "period of reflection." Nothing in the prosecutor's argument or the court's instructions inaccurately suggested that the State needed only to prove the time element of reflection in lieu of actual premeditation.
Petitioner relies on the case of Jones v. United States to support his argument; however, the instruction at issue is distinguishable from the one in Jones, which the court found deprived the defendant of a fair trial:
Deliberate and premeditated malice is presumed by law to exist where the intention to unlawfully take life is deliberately formed in the mind of the actor, and thereafter such intention is carried out. There need be no appreciable length of time between the formation of the intent to kill and the killing, itself; it may be as instantaneous as successive thought.175 F.2d 544, 551 (9th Cir. 1949). The court noted that instructions containing some of the same principles had been previously approved; this instruction failed, however, because it contained the concept that there did not need to be any appreciable length of time between the intent and the killing and the concept that such a period could be "as instantaneous as successive thought." Id. The instruction in Petitioner's case did not include both those ideas. Further, the instruction in Jones applied a legal presumption for proof of premeditation and contained no mention of reflection, while the instruction used in Petitioner's case explicitly distinguished intent as existing before, and as something distinct from, reflection, and thus emphasized that it is the "period of reflection" which distinguishes first degree murder. This is similar to another case cited by Petitioner, in which the court upheld an instruction stating that premeditation takes no "appreciable length of time," despite finding the language to be erroneous, because a later portion of the jury charge required that after forming the intent to kill the person must turn that intention over in his mind. Bullock v. United States, 12 F.2d 213, 214 n. 4 (D.C. Cir. 1941).
Additionally, the Court looks to the other instructions and examines the jury charge as a whole. The subsequent instructions regarding second degree murder and manslaughter emphasized the significance of premeditation to a verdict of first degree murder. Specifically, the second degree murder instruction reiterated that the difference between first and second degree murder is premeditation, and stated that if the jury determined that Petitioner was guilty either of first or second degree murder, but had a reasonable doubt as to which, they must find second degree murder. (ROA, Dkt. 115 at 15(b).)
Finally, the facts of this case are sufficient to support a finding of premeditation. Evidence from the crime scene indicated that a prolonged struggle took place during which a juror could find that reflection occurred. See Frady v. United States, 348 F.2d 84, 96 (D.C. Cir. 1965) (finding a prolonged assault of at least ten minutes and numerous non-fatal wounds sufficient to establish premeditation). As summarized by the Arizona Supreme Court, the apartment where the murders were committed was in disarray, with significant amounts of blood in the foyer, kitchen, living room, bathroom, and one bedroom; both victims were stabbed numerous times and had facial injuries and defensive wounds; and witnesses heard banging and screams extending over more than a five-minute period. Ramirez, 178 Ariz. 116, 119-21, 871 P.2d 237, 240-42 (1994).
The Court finds there is not a reasonable likelihood that the jury applied the premeditation instruction in a manner that violated Petitioner's due process rights by lessening the prosecution's burden of proof with respect to premeditation. Amendment as to Claim 33 is therefore denied as futile because it fails on the merits.
Claim 35
Petitioner alleges that his due process rights were violated when the PCR court denied his claim of innocence of the death penalty brought pursuant to Arizona Rule of Criminal Procedure 32.1(h), which he alleges created a liberty interest. Petitioner asserts that Claim 35 relates back to Claims 8 and 23.
Claim 8 alleged ineffective assistance of counsel (IAC) based on counsel's failure to investigate a defense of intoxication; failure to investigate Petitioner's mental condition as a mitigating factor, including his competency, the possibility of mental illness, and funding for a psychologist; and failure to note that the court reporter did not transcribe certain side bar conferences. Claim 35, which alleges error by the state court during a PCR proceeding, does not relate back to Claim 8, which alleged error by counsel at trial and sentencing, because the claims are distinct in type and time. Claim 23 alleged that Arizona's death penalty statute is unconstitutional because it mandates a death sentence if one aggravating factor is established and there is not mitigation sufficient to warrant leniency. Again, Claim 35, alleging an error by the PCR court in ruling on a specific post-sentencing claim, does not arise from a common core of operative facts as Claim 23's facial challenge to the Arizona death penalty statute; therefore, proposed Claim 35 does not relate back to Claim 23.
Even if Claim 35 related back to the original petition, thus satisfying the statute of limitations, it is not cognizable in this proceeding. Petitioner's reliance on a due process right arising out of state criminal procedural rules is misplaced because the rule on which he relies is not a procedural rule applicable at trial or sentencing but a collateral ground for relief during a PCR proceeding. Cf. Hicks v. Oklahoma, 447 U.S. 343, 346 (1980) (due process liberty interest in statutory sentencing procedure); Walker v. Deeds, 50 F.3d 670, 673 (9th Cir. 1995) (recognizing liberty interests in state procedural rights at sentencing) (citing Hicks, 447 U.S. at 346). The Ninth Circuit has clarified that procedural errors arising during PCR proceedings are not cognizable in habeas corpus proceedings under 28 U.S.C. § 2254 because they do not challenge a petitioner's detention. Franzen v. Brinkman, 877 F.2d 26, 26 (9th Cir. 1989) (per curiam); see also Ortiz, 149 F.3d at 939; Gerlaugh v. Stewart, 129 F.3d 1027, 1045 (9th Cir. 1997). Further, Petitioner's claim makes clear that he is not actually alleging a procedural error; rather, he contends that the state court wrongly decided the substance of his state-law claim. Erroneous application of substantive state law is not reviewable in a federal habeas corpus proceeding. See Estelle v. McGuire, 502 U.S. 62, 67-68 (1991). Finally, free-standing claims of innocence of the death penalty are not cognizable in a federal habeas proceeding. Cf. Herrera v. Collins, 506 U.S. 390, 417 (1993) (assuming without deciding that if a free-standing claim of innocence is cognizable for habeas relief, it would be a claim of "actual innocence" of the crime with an extremely high standard of proof); Carriger v. Stewart, 132 F.3d 463, 476-77 (9th Cir. 1997) (holding that, if recognized, a free-standing innocence claim would require proof that the defendant is innocent of the crime). Innocence of the death penalty, if it amounts to a "fundamental miscarriage of justice," has been recognized only as a gateway through which an otherwise barred claim may be heard. See Sawyer v. Whitley, 505 U.S. 333, 336 (1992).
Amendment as to Claim 35 is denied as futile because the claim violates the statute of limitations and fails on the merits.
Claim 36
Petitioner alleges that his low IQ, brain damage, and other impairments render him ineligible for the death penalty, on the same grounds that mental retardation has been found to preclude imposition of the death penalty. Petitioner alleges that Claim 36 relates back to Claims 8, 12, and 30.
Claim 36, which attempts to create a new prohibition on the death penalty, does not relate back to Claim 8's allegations of ineffective assistance of trial counsel because the claims do not share a common core of operative facts. Claim 12 alleged that the trial court erred in denying funds for experts to assist in preparation for trial and sentencing. Again, Claim 36 does not relate back to a claim of trial court error regarding funding, which is distinct in type and time from a claim alleging Petitioner is not eligible for the death penalty based on his mental capacity.
Claim 30 alleged that Petitioner will not be competent to be executed because he will be insane. This principle arises from the Supreme Court's conclusion that it offends the Eighth Amendment to execute someone who cannot comprehend that his execution is based on a conviction for murder. Ford v. Wainwright, 477 U.S. 399, 409-10 (1986). Such a determination cannot be made until an execution warrant is issued by the State making the petitioner's execution imminent. See Martinez-Villareal v. Stewart, 118 F.3d 628, 630 (1997) (citing Herrera v. Collins, 506 U.S. 390, 406 (1993)). In contrast, Petitioner argues in Claim 36 that his mental impairments cause deficits in his reasoning, judgment, and control which make him less culpable and ineligible for a death sentence, based on Atkins v. Virginia, 536 U.S. 304, 306, 321 (2002) (finding the death penalty to be an excessive punishment in violation of the Eighth Amendment as applied to the mentally retarded). If successful, both claims would have the effect of precluding Petitioner's execution and both relate to his mental state; however, they do not arise from a common core of operative facts. Success on Claim 30 requires establishing that "due to a mental disease or defect [Petitioner] is presently unaware that he is to be punished for the crime of murder or that he is unaware that the impending punishment for that crime is death." A.R.S. § 13-4021B. In contrast, in Claim 36 Petitioner seeks relief premised on ongoing impairments causing deficits in reasoning, judgment, and impulse control. Claim 36 does not relate back to Claim 30 because they are distinct in both type and time.
Even if Claim 36 related back to the original petition, thus satisfying the statute of limitations, it is without merit. The prohibition on execution of the mentally retarded is based on a national consensus developed in state legislatures that death is an excessive punishment for those who are mentally retarded. See Atkins, 536 U.S. at 311-16. The Supreme Court was clear that the national consensus creating the prohibition applied only to those individuals determined to be mentally retarded under state law, the definition of which was not uniform but within a fairly well-accepted set of parameters. Id. at 317 308 n. 3. The Court noted the difficulty in determining whether particular offenders are mentally retarded and come within the prohibition, thus making clear that the Eighth Amendment does not restrict the imposition of a death sentence for those whose level of impairment does not meet the state's definition of mental retardation. Id. at 317. Petitioner's own pleading, which is not based on mental retardation, highlights the lack of consensus for the prohibition he seeks because he cites only to dissenting and concurring opinions in non-controlling jurisdictions. ( See Dkt. 145, Ex. E at 122-125.) There is no constitutional prohibition on the execution of persons with mental impairments that do not amount to incompetency or mental retardation; therefore, Petitioner cannot obtain relief on this claim.
Amendment as to Claim 36 is denied as futile because it violates the statute of limitations and fails on the merits.
Equitable Statutory Tolling
To the extent the Court found that Claims 32, 35, and 36 do not relate back and violate the statute of limitations, Petitioner contends that his brain damage and reduced intellectual functioning entitle him to equitable tolling of the statute of limitations. The Supreme Court has assumed without deciding that the AEDPA's statute of limitation could be equitably tolled. Lawrence v. Florida, 127 S. Ct. 1079, 1081 (2007); Pace v. DiGuglielmo, 544 U.S. 408, 418 n. 8 (2005). Citing the standard for equitable tolling set forth in Irwin v. Dep't of Veterans Affairs, 498 U.S. 89, 96 (1990), the Court observed that a litigant generally "bears the burden of establishing two elements: (1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way." Pace, 544 U.S. at 418. In turn, the Ninth Circuit holds that the limitation period may be equitably tolled "if extraordinary circumstances beyond a prisoner's control make it impossible to file a petition on time." Miles v. Prunty, 187 F.3d 1104, 1107 (9th Cir. 1999) (quoting Calderon v. United States Dist. Court (Kelly), 163 F.3d 530, 541 (9th Cir. 1998) (en banc), abrogated on other grounds by Woodford v. Garceau, 538 U.S. 202 (2003)).
The Court finds that Petitioner is not entitled to equitable tolling of the statute of limitations. First, Petitioner timely initiated these proceedings within the statute of limitations and has been represented by counsel for the entirety of his federal habeas proceeding, including a change of counsel to ensure adequate representation. This contrasts with the case on which Petitioner relies, Laws v. LaMarque, 351 F.3d 919, 922-23 (9th Cir. 2003), in which a pro se petitioner's mental incompetence prevented him from filing an initial petition by the one-year deadline. Further, no counsel has ever indicated to the Court that Petitioner's competency was an impediment to this proceeding, and Petitioner was allowed to amend his petition twice. Claims 32 and 36 could have been raised in the amended or supplemental amended petition; while Claim 35 is alleged to have arisen in the most-recent successive PCR proceeding, it is patently meritless. Petitioner has not made a showing that his mental deficiencies interfered with counsel's ability to timely raise any claims, thus it does not constitute an extraordinary circumstance.
Second, Petitioner asserts that he is entitled to statutory tolling, pursuant to 28 U.S.C. § 2244(d)(1)(B), because he was prevented from timely filing due to the State's failure to adequately fund his mitigation investigation and to appoint adequate counsel. This statutory provision requires that the State impediment violate the Constitution or federal law; Petitioner has pointed to no such violation. More significantly, Petitioner's state court mitigation investigation and/or counsel have no bearing on Petitioner's ability to have raised these claims through counsel in one of his prior federal petitions.
Claim 34
Petitioner alleges that counsel was ineffective for failing to conduct a complete mitigation investigation and presentation, which would have included evidence of Petitioner's mental retardation, brain damage, impaired intellectual functioning, childhood poverty, in utero exposure to pesticides and alcohol, the fact that he was the product of the rape of his fifteen-year-old mother by his uncle, and childhood neglect and abuse.
Futility
Petitioner alleges that Claim 34 relates back to Claims 8, 12, and 21. Claim 12 alleged that the trial court erred in denying funds for experts to assist in defense preparation for trial and sentencing. Funding error by the trial court is distinct in type and time from error by counsel in failing to investigate and seek such funds. Claim 21 alleged that the balancing test for aggravation and mitigation was unconstitutionally applied by the state courts. Error by the state courts in assessing the information presented in mitigation and aggravation is not closely related in time and type to counsel's failure to adequately investigate and present such mitigation for consideration. Claim 34 does not relate back to Claims 12 or 21.
As previously discussed, Claim 8 alleged, in part, that Petitioner's counsel was ineffective for failing to investigate his mental condition as a mitigating factor, including his competency, the possibility of mental illness, and funding of a psychologist. Claim 34 relates back to these portions of Claim 8 alleging IAC at sentencing. Additionally, Claim 34 as plead is not meritless on its face. (See Dkt. 145, Ex. E at 118-20.) Therefore, amendment to add Claim 34 is not futile.
Other Amendment Factors
Respondents contend that amendment should be denied because the original petition was filed ten years ago, amendment has been previously granted, and amendment would engender additional delay that violates the principles of finality and federalism that underlie habeas corpus and the AEDPA. Petitioner contends that he acted in good faith, that Respondents will suffer no prejudice, and that he sought amendment shortly after exhausting the claims in state court.
In assessing the factor of undue delay, the Court considers whether "the issue could have been raised in the initial petition." Stafford v. Saffle, 34 F.3d 1557, 1560 (10th Cir. 1994); see also Chodos v. West Publ'g Co., Inc., 292 F.3d 992, 1003 (9th Cir. 2002) (denying amendment because the "new" facts were available to the plaintiff prior to earlier amendment); Jackson v. Bank of Haw., 902 F.2d 1385, 1388 (9th Cir. 1990) (noting that petitioner knew or should have known the necessary facts and theories for the amendment at the time of the original pleading). Similarly, the Ninth Circuit has noted "that late amendments to assert new theories are not reviewed favorably when the facts and the theory have been known to the party seeking amendment since the inception of the cause of action." Acri v. Int'l Ass'n of Machinists Aerospace Workers, 781 F.2d 1393, 1398 (9th Cir. 1986).
Counsel had access to Petitioner and the state court sentencing record for years before seeking amendment; therefore, the basic information needed to formulate this IAC claim was within the FPD's possession when they sought amendment on Petitioner's behalf. Additionally, Petitioner has been granted amendment twice, including once after the appointment of new counsel who was allowed more than two years to review the record and conduct investigation. See Bonin, 59 F.3d at 845 (with respect to motions to amend, a court should consider whether the petitioner has previously amended); Chodos, 292 F.3d at 1003 ("[W]hen a district court has already granted a plaintiff leave to amend, its discretion in deciding subsequent motions is `particularly broad.'") (quoting Griggs v. Pace Am. Group, Inc., 170 F.3d 877, 879 (9th Cir. 1999)).
However, upon the substitution of counsel, the Court instructed that amendment would only be granted upon a "substantial showing," which was defined as:
(1) demonstrating that cause and prejudice exists to overcome procedural default of one (or more) of Petitioner's claims, or that a fundamental miscarriage of justice will occur if the Court does not reach the merits of one or more of Petitioner's procedurally defaulted claims; (2) demonstrating that a claim that was fairly presented to the state courts, which has arguable merit, was omitted from the Amended Petition; or (3) any other claim which is arguably procedurally defaulted but for which counsel can demonstrate cause and prejudice or a fundamental miscarriage of justice.
(Dkt. 40 at 9.) Therefore, arguably the Court put counsel on notice that amendment should not be sought as to claims such as Claim 34 — one not previously presented in state court and for which there were no substantive arguments of cause and prejudice or fundamental miscarriage of justice. Counsel appears to have diligently investigated mitigation, pursued exhaustion of this claim in state court, and then promptly sought amendment in this Court, see Caswell, 363 F.3d at 839-40 (finding no undue delay because petitioner sought amendment promptly after exhausting claim). Respondents do not contend that Petitioner acted in bad faith or that they will be prejudiced by amendment. See Gillette v. Tansy, 17 F.3d 308, 313 (10th Cir. 1994) (holding denial of amendment to be an abuse of discretion despite petitioner's delay in exhausting claim, because he sought amendment shortly after exhaustion, allowing amendment would not cause significant delay to the proceeding, and there was no prejudice or bad faith).
Although there is no allegation of bad faith and the Court does not make such a finding, it is evident that Petitioner intentionally withheld this claim from the prior amendment, in order to pursue exhaustion in state court, and did not mention this claim when seeking a stay to exhaust his Atkins claim in state court.
Because the Court granted a stay of all sentencing claims shortly after the last amendment, and the stay remains in effect, adding Claim 34 now would not cause any delay in the final resolution of this case or in the State's execution of its judgment. If Petitioner does not obtain relief on his Atkins claim in state court, this Court will lift the stay on the twenty-one remaining sentencing claims and order the filing of motions for evidentiary development. Only when that process is complete will the case be ready for final resolution. Additionally, in light of the strict rules governing successive petitions, if amendment is denied as to this claim it will likely never be reviewed on the merits. See Riley v. Taylor, 62 F.3d 86, 90 (3d Cir. 1995); Fetterly v. Paskett, 997 F.2d 1295, 1301-02 (9th Cir. 1993) (amendment preferable to the filing of a successive petition); 28 U.S.C. § 2244(b).
Respondents rely on caselaw discussing the equities governing successive habeas petitions, see Kuhlmann v. Wilson, 477 U.S. 436 (1986), which the Court finds inapposite because successive petitions should be allowed only in a "rare instance," id. at 451-52, are limited by statute, and require appellate court permission for filing, see 28 U.S.C. § 2244(b), while amendment shall be "freely given," is discretionary, and non-statutory. See Bonin, 59 F.3d at 846 (liberal amendment policy of Rule 15(a) is of "no less significance" in habeas cases in which subsequent petitions are subject to stringent requirements).
In light of the strong policy favoring amendment, the fact that final resolution of this case will not be delayed by this amendment, and the absence of bad faith or prejudice to Respondents, the Court will grant amendment as to Claim 34.
Accordingly, IT IS ORDERED that Petitioner's Motion for Leave to File Second Amended Petition (Dkt. 145) is GRANTED IN PART as to Claim 34, and DENIED IN PART as to Claims 32, 33, 35, and 36.
IT IS FURTHER ORDERED that Petitioner shall file a Second Amended Petition adding only Claim 34, within ten (10) days of the file date of this Order.