1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 NORTHERN DISTRICT OF CALIFORNIA 10 ABDELFATAH ELLAWENDY, 11 Case No. 20-02708 BLF (PR) Petitioner, 12 ORDER DENYING LEAVE TO FILE v. AMENDED PETITION; LIFTING 13 STAY ON BRIEFING; SETTING DEADLINE FOR PETITIONER’S 14 MONTEREY COUNTY SUPERIOR TRAVERSE COURT, 15 16 Respondent. (Docket No. 15)
17 18 Petitioner, a state parolee, filed a pro se petition for a writ of habeas corpus under 19 28 U.S.C. § 2254 challenging his 2019 state conviction out of Monterey County, which 20 involved charges for stalking, several counts of assault, and dissuading a witness from 21 testifying. Dkt. No. 1; Dkt. No. 12-1 at 1-2. Pursuant to a negotiated plea, Petitioner 22 pleaded no contest to one count of assault with a deadly weapon, agreeing to serve no 23 more than two years; the trial court sentenced him to two years in state prison. Dkt. No. 24 12-1 at 2. The Court found the only cognizable claim in the petition was the claim 25 challenging the voluntary nature of Petitioner’s plea and dismissed all other claims; 26 Respondent was directed to show cause why the petition should not be granted. Dkt. No. 27 6. On January 27, 2021, Respondent filed an answer on the merits, Dkt. No. 12-1. 1 “petition for a writ of habeas corpus,” which the Court construed as a motion for leave to 2 file an amended petition. Dkt. No. 15. The Court directed Respondent to file an 3 opposition or statement of non-opposition to the motion and stayed briefing on 4 Respondent’s answer. Dkt. No. 16. Respondent filed an opposition, Dkt. No. 17, and 5 Petitioner filed a reply, Dkt. No. 23. 6 7 DISCUSSION 8 A. Leave to Amend 9 The Civil Rule governing pleading amendments, Federal Rule of Civil Procedure 10 15, made applicable to habeas proceedings by 28 U.S.C. § 2242, Federal Rule of Civil 11 Procedure 81(a)(2), and Habeas Corpus Rule 11, allows amendments with leave of court 12 any time during a proceeding. Mayle v, Felix, 545 U.S. 644, 654-55 (2005) (citing Fed. R. 13 Civ. P. 15(a)). Before a responsive pleading is served, pleadings may be amended once as 14 a matter of course, i.e., without seeking court leave. Id. at 655. Here, Petitioner filed his 15 proposed amended petition ten months after the Court ordered the matter served on 16 Respondent. Dkt. No. 6. Accordingly, Petitioner must obtain leave of court to proceed 17 with his amended petition. 18 Rule 15 applies to amendments to habeas answers as well. See Waldrip v. Hall, 548 19 F.3d 729, 731-33 (9th Cir. 2008). Public policy strongly encourages courts to permit 20 amendments. Id. at 731. In reviewing whether a grant of leave to amend was an abuse of 21 discretion, the appellate court “‘often consider[s] . . . bad faith, undue delay, prejudice to 22 the opposing party, futility of the amendment, and whether the party has previously 23 amended his pleadings.’” Id. 732 (quoting Bonin v. Calderon, 59 F.3d 815, 845 (9th Cir. 24 1995)); see, e.g., id. at 732-33 (no undue delay when state’s motion to amend answer to 25 assert untimeliness defense was only filed after United States Supreme Court decision 26 made clear that Ninth Circuit authority was incorrect). 1 back to the date of the original pleading when the amendment “asserts one or more claims 2 that arise out of ‘the conduct, transaction, or occurrence’ that the original petition “set out” 3 or “attempted to . . . set out.” Ross v. Williams, 950 F.3d 1160, 1167 (9th Cir. 2020) (en 4 banc) (quoting Fed. R. Civ. P. 15(c)(1)(B)). “An amended habeas petition . . . does not 5 relate back (and thereby escape AEDPA’s one-year time limit) when it asserts a new 6 ground for relief supported by facts that differ in both time and type from those the original 7 pleading set forth.” Mayle, 545 U.S. at 650 (finding that new coerced confession claim did 8 not relate back to the original petition that raised only a factually distinct Confrontation 9 Clause claim). Only if the original and amended petition state claims that are tied to a 10 common core of operative facts will relation back be in order. Id. at 664. “[F]or all 11 purposes,” including relation back, the original petition consists of the petition itself and 12 any “written instrument[s]” that are exhibits to the petition. Ross, 950 F.3d at 1167 13 (quoting Fed. R. Civ. P. 10(c)) (specifying that, “[l]ike a brief, a court decision is a written 14 instrument” and holding that state appellate court’s order, attached to timely petition, was 15 incorporated by reference for relation back purposes). 16 In the original petition, Petitioner claimed the following: (1) invalid plea which was 17 made under duress and not voluntarily; (2) racial and gender bias by the police, 18 prosecution, and trial judge; (3) new evidence which was not available at the time of 19 judgment, including perjury by the witness; and (4) violation of his rights under the Sixth 20 and Fourteenth Amendments based on the witness lying under oath, no interpreter was 21 provided at the signing of the plea, and police fabricated evidence, among other 22 allegations. Dkt. No. 1 at 6-7. Petitioner was advised that a defendant who pleads guilty 23 cannot later raise in habeas corpus proceedings independent claims relating to the 24 deprivation of constitutional rights that occurred before the plea of guilty. Dkt. No. 6 at 3, 25 citing Haring v. Prosise, 462 U.S. 306, 3019-20 (1983) (guilty plea foreclose consideration 26 of pre-plea constitutional deprivation); Tollett v. Henderson, 411 U.S. 258, 266-67 (1973) 1 voluntary and intelligent character of the plea and the nature of the advice of counsel to 2 plead. Id. citing Hill v. Lockhart, 474 U.S. 52, 56-57 (1985); Tollett, 411 U.S. at 267. 3 Accordingly, the Court found the first claim that his plea was made under duress was 4 cognizable and dismissed claims 2, 3, and 4 which related to the deprivation of 5 constitutional rights that occurred before the guilty plea. Id. 6 In the amended petition, Petitioner raises additional grounds challenging the 7 voluntary nature of his plea based on counsel’s deficient advice. Dkt. No. 15 at 1. 8 Petitioner also claims prosecutorial misconduct, bias by the trial judge, and new evidence. 9 Id. In opposition, Respondent asserts the amendment should be denied because Petitioner 10 fails to explain any reason for the lengthy delay and his failure to add the allegations 11 originally. Dkt. No. 17 at 2. Respondent also points out that the amended petition 12 includes the same claims that were already dismissed by the Court. Id. Furthermore, 13 Respondent asserts that the proffered amendments with respect to Plaintiff’s plea adds 14 nothing beyond what was already discussed in their answer. Id. at 3.
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 NORTHERN DISTRICT OF CALIFORNIA 10 ABDELFATAH ELLAWENDY, 11 Case No. 20-02708 BLF (PR) Petitioner, 12 ORDER DENYING LEAVE TO FILE v. AMENDED PETITION; LIFTING 13 STAY ON BRIEFING; SETTING DEADLINE FOR PETITIONER’S 14 MONTEREY COUNTY SUPERIOR TRAVERSE COURT, 15 16 Respondent. (Docket No. 15)
17 18 Petitioner, a state parolee, filed a pro se petition for a writ of habeas corpus under 19 28 U.S.C. § 2254 challenging his 2019 state conviction out of Monterey County, which 20 involved charges for stalking, several counts of assault, and dissuading a witness from 21 testifying. Dkt. No. 1; Dkt. No. 12-1 at 1-2. Pursuant to a negotiated plea, Petitioner 22 pleaded no contest to one count of assault with a deadly weapon, agreeing to serve no 23 more than two years; the trial court sentenced him to two years in state prison. Dkt. No. 24 12-1 at 2. The Court found the only cognizable claim in the petition was the claim 25 challenging the voluntary nature of Petitioner’s plea and dismissed all other claims; 26 Respondent was directed to show cause why the petition should not be granted. Dkt. No. 27 6. On January 27, 2021, Respondent filed an answer on the merits, Dkt. No. 12-1. 1 “petition for a writ of habeas corpus,” which the Court construed as a motion for leave to 2 file an amended petition. Dkt. No. 15. The Court directed Respondent to file an 3 opposition or statement of non-opposition to the motion and stayed briefing on 4 Respondent’s answer. Dkt. No. 16. Respondent filed an opposition, Dkt. No. 17, and 5 Petitioner filed a reply, Dkt. No. 23. 6 7 DISCUSSION 8 A. Leave to Amend 9 The Civil Rule governing pleading amendments, Federal Rule of Civil Procedure 10 15, made applicable to habeas proceedings by 28 U.S.C. § 2242, Federal Rule of Civil 11 Procedure 81(a)(2), and Habeas Corpus Rule 11, allows amendments with leave of court 12 any time during a proceeding. Mayle v, Felix, 545 U.S. 644, 654-55 (2005) (citing Fed. R. 13 Civ. P. 15(a)). Before a responsive pleading is served, pleadings may be amended once as 14 a matter of course, i.e., without seeking court leave. Id. at 655. Here, Petitioner filed his 15 proposed amended petition ten months after the Court ordered the matter served on 16 Respondent. Dkt. No. 6. Accordingly, Petitioner must obtain leave of court to proceed 17 with his amended petition. 18 Rule 15 applies to amendments to habeas answers as well. See Waldrip v. Hall, 548 19 F.3d 729, 731-33 (9th Cir. 2008). Public policy strongly encourages courts to permit 20 amendments. Id. at 731. In reviewing whether a grant of leave to amend was an abuse of 21 discretion, the appellate court “‘often consider[s] . . . bad faith, undue delay, prejudice to 22 the opposing party, futility of the amendment, and whether the party has previously 23 amended his pleadings.’” Id. 732 (quoting Bonin v. Calderon, 59 F.3d 815, 845 (9th Cir. 24 1995)); see, e.g., id. at 732-33 (no undue delay when state’s motion to amend answer to 25 assert untimeliness defense was only filed after United States Supreme Court decision 26 made clear that Ninth Circuit authority was incorrect). 1 back to the date of the original pleading when the amendment “asserts one or more claims 2 that arise out of ‘the conduct, transaction, or occurrence’ that the original petition “set out” 3 or “attempted to . . . set out.” Ross v. Williams, 950 F.3d 1160, 1167 (9th Cir. 2020) (en 4 banc) (quoting Fed. R. Civ. P. 15(c)(1)(B)). “An amended habeas petition . . . does not 5 relate back (and thereby escape AEDPA’s one-year time limit) when it asserts a new 6 ground for relief supported by facts that differ in both time and type from those the original 7 pleading set forth.” Mayle, 545 U.S. at 650 (finding that new coerced confession claim did 8 not relate back to the original petition that raised only a factually distinct Confrontation 9 Clause claim). Only if the original and amended petition state claims that are tied to a 10 common core of operative facts will relation back be in order. Id. at 664. “[F]or all 11 purposes,” including relation back, the original petition consists of the petition itself and 12 any “written instrument[s]” that are exhibits to the petition. Ross, 950 F.3d at 1167 13 (quoting Fed. R. Civ. P. 10(c)) (specifying that, “[l]ike a brief, a court decision is a written 14 instrument” and holding that state appellate court’s order, attached to timely petition, was 15 incorporated by reference for relation back purposes). 16 In the original petition, Petitioner claimed the following: (1) invalid plea which was 17 made under duress and not voluntarily; (2) racial and gender bias by the police, 18 prosecution, and trial judge; (3) new evidence which was not available at the time of 19 judgment, including perjury by the witness; and (4) violation of his rights under the Sixth 20 and Fourteenth Amendments based on the witness lying under oath, no interpreter was 21 provided at the signing of the plea, and police fabricated evidence, among other 22 allegations. Dkt. No. 1 at 6-7. Petitioner was advised that a defendant who pleads guilty 23 cannot later raise in habeas corpus proceedings independent claims relating to the 24 deprivation of constitutional rights that occurred before the plea of guilty. Dkt. No. 6 at 3, 25 citing Haring v. Prosise, 462 U.S. 306, 3019-20 (1983) (guilty plea foreclose consideration 26 of pre-plea constitutional deprivation); Tollett v. Henderson, 411 U.S. 258, 266-67 (1973) 1 voluntary and intelligent character of the plea and the nature of the advice of counsel to 2 plead. Id. citing Hill v. Lockhart, 474 U.S. 52, 56-57 (1985); Tollett, 411 U.S. at 267. 3 Accordingly, the Court found the first claim that his plea was made under duress was 4 cognizable and dismissed claims 2, 3, and 4 which related to the deprivation of 5 constitutional rights that occurred before the guilty plea. Id. 6 In the amended petition, Petitioner raises additional grounds challenging the 7 voluntary nature of his plea based on counsel’s deficient advice. Dkt. No. 15 at 1. 8 Petitioner also claims prosecutorial misconduct, bias by the trial judge, and new evidence. 9 Id. In opposition, Respondent asserts the amendment should be denied because Petitioner 10 fails to explain any reason for the lengthy delay and his failure to add the allegations 11 originally. Dkt. No. 17 at 2. Respondent also points out that the amended petition 12 includes the same claims that were already dismissed by the Court. Id. Furthermore, 13 Respondent asserts that the proffered amendments with respect to Plaintiff’s plea adds 14 nothing beyond what was already discussed in their answer. Id. at 3. Lastly, Respondent 15 asserts that the amendment would be futile as to all of Petitioner’s claims because they 16 involve allegations of out-of-court, and thus off-record events, which have no support in 17 the appellate record; and since the Court’s review is limited to the record before the state 18 court, Petitioner’s allegations were reasonably rejected by the state court as unsupported. 19 Id. In reply, Petitioner asserts that he is self-representing and therefore needs more time to 20 review the law. Dkt. No. 23 at 1. He also repeats his allegations regarding misconduct by 21 the district attorney, the witness who lied under oath, bias and racism by the judge, and the 22 involuntary nature of his plea. Id. at 2-4. Petitioner asserts that he is innocent and desires 23 to “disclose the corruption and abuse by some law enforcement members.” Id. at 4. 24 After carefully reviewing the papers, in exercising its discretion, the Court declines 25 to permit an amendment at such a late stage in the proceedings. The Court dismissed the 26 non-cognizable claims and directed Respondent to answer on the remaining claim on 1 ten months later, he filed an amended petition on July 8, 2021, which again includes the 2 same claims which the Court dismissed from the original petition. Dkt. No. 15. 3 Meanwhile, Respondent filed an answer on the merits on January 27, 2021. Dkt. No. 12. 4 Petitioner’s traverse was due 30 days thereafter, but he filed nothing until April 14, 2021, 5 when he filed an “amended complaint.” Dkt. No. 13. Then nearly three months later, he 6 filed the amended petition. Dkt. No. 15. Petitioner provides no explanation for the undue 7 delay in attempting to amend his pleading to include additional grounds for challenging his 8 plea. 9 Furthermore, permitting the amendment would be futile. First of all, the 10 amendment runs afoul of AEDPA’s one-year statute of limitations period. Petitioner’s 11 direct appeal denied by the California Supreme Court on March 18, 2020. Dkt. No. 12-1 at 12 2, Ex. G. Therefore, Petitioner had until March 18, 2021, to file a timely petition. 13 Petitioner filed the amended petition on April 14, 2021, after the limitations period 14 expired. Although the new claims in the amended petition challenging his plea could 15 relate back and be timely as they are tied to a common core of operative facts as the 16 cognizable claim, Mayle, 545 U.S. at 664, Petitioner would still have to exhaust those new 17 claims in state court before he can raise them in the instant federal habeas action. He 18 clearly has not. The result is a mixed petition which would be subject to dismissal. See 19 Rose v. Lundy, 455 U.S. 509, 522 (1982). Although the Court has discretion to stay a 20 mixed petition under Rhines v. Weber, 544 U.S. 269 (2005), it is only appropriate where 21 the district court has first determined that there was good cause for the petitioner’s failure 22 to exhaust the claims in state court and that the claims are potentially meritorious. Id. at 23 277. Here, Petitioner has provided no explanation for the delay in filing an amended 24 petition or why he did not raise these claims sooner. Accordingly, the Court is not inclined 25 to exercise its discretion and entertain a motion for a stay under Rhines at this late stage in 26 the proceedings. 1 || the nature of his plea, were improperly dismissed at the outset, and the Court finds no error 2 || inits ruling. Accordingly, Petitioner’s motion for leave to amend is DENIED. 3 4 CONCLUSION 5 For the foregoing reasons, the Court orders as follows: 6 1. Petitioner’s motion for leave to file an amended petition is DENIED. The 7 || amended petition under Docket No. 15 shall be STRICKEN. 8 2. The stay of briefing on Respondent’s answer, Dkt. No. 12, is hereby g || LIFTED. If Petitioner wishes to respond to the answer, he shall do so by filing a traverse 10 || with the Court and serving it on Respondent within forty-two (42) days from the date this 11 || order is filed. a 12 The matter will be deemed submitted as of the date Petitioner’s traverse is due. E 13 IT IS SO ORDERED. || Dated: _ May 9, 2022 2 BETH LABSON FREEMAN 15 United States District Judge 16
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