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8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 ----oo0oo---- 11 12 JERRALD D. GAZAWAY, No. 2:23-cv-699 WBS DMC P 13 Petitioner, 14 v. ORDER 15 STATE OF CALIFORNIA, 16 Respondent. 17
18 ----oo0oo---- 19 Petitioner Jerrald D. Gazaway, who proceeds pro se, 20 brought his petition for a writ of habeas corpus under 28 U.S.C. 21 § 2254 on April 14, 2023. (Docket No. 1.) Respondent moved to 22 dismiss on September 21, 2023, on the grounds that petitioner’s 23 claims were not cognizable. (Docket No. 12.) The magistrate 24 judge assigned to this case then issued findings and 25 recommendations that the motion to dismiss should be granted 26 (Docket No. 28), to which petitioner filed objections (Docket No. 27 33). Prior to the district court ruling on the findings and 28 1 recommendations, petitioner filed two motions for leave to amend 2 and two amended petitions. (Docket Nos. 34, 35, 36, 37.) The 3 magistrate judge then denied petitioner’s motions for leave to 4 amend and struck the amended petitions (Docket No. 40) and the 5 court issued an order adopting the findings and recommendations 6 in full and entered judgment thereto (Docket Nos. 42, 43). 7 Following an appeal, a panel of the Ninth Circuit 8 vacated that judgment, remanding the matter for further 9 proceedings consistent with Williams v. King, 875 F.3d 500 (9th 10 Cir. 2017). (Docket No. 58.) Petitioner subsequently filed a 11 third motion for leave to amend his petition. (Docket No. 59.) 12 Accordingly, the court now considers petitioner’s motions for 13 leave to amend his original petition. (Docket Nos. 34, 36, 59.) 14 I. Legal Standard 15 Under Federal Rule of Civil Procedure 15, a party may 16 amend his pleading once as a matter of course within 21 days of 17 serving the pleading or, if the pleading is one to which a 18 responsive pleading is required, within 21 days after service of 19 the responsive pleading, or within 21 days after service of a 20 motion under Rule 12(b), 12(e), or 12(f), whichever time is 21 earlier. See Fed. R. Civ. P. 15(a)(1)(A)—(B). Outside of these 22 circumstances, a pleading may only be amended either with leave 23 of the court or upon stipulation of all parties. See Fed. R. 24 Civ. P. 15(a)(2). 25 When leave of the court to amend is sought, the court 26 considers (1) if there is a reasonable relationship between the 27 original pleadings and the proposed amended pleadings, (2) if 28 1 amendment would promote the interest of judicial efficiency and 2 facilitate resolution of the controversy in its entirety, (3) if 3 there has been any undue delay seeking to amend the pleadings, 4 (4) if granting leave to amend would delay a trial on the merits, 5 and (5) if amendment would prejudice the opposing party. See 6 Jackson v. Bank of Hawai’i, 902 F.2d 1385, 1387 (9th Cir. 1990). 7 Further, a court properly denies leave to amend when the proposed 8 amendment is frivolous. See DCD Programs, Ltd. v. Leighton, 833 9 F.2d 183, 186 (9th Cir. 1987). 10 Additionally, “[i]f an amended pleading cannot be made 11 as of right and is filed without leave of court or consent of the 12 opposing party, the amended pleading is a nullity and without 13 legal effect,” and so is properly stricken. Hardin v. Wal-Mart 14 Stores, Inc., 813 F. Supp. 2d 1167, 1181 (E.D. Cal. 2011) 15 (striking fourth amended complaint). 16 II. Discussion 17 Through his motions, petitioner seeks amendment to 18 claim that: 19 [T]he Governor and the Rescission panel fabricated and 20 used actual bias, prejudiced evidence, changed transcripts from mitigating to aggravating by removing 21 the “not” from the statements, in the decision-making process of the parole rescission hearing, making the 22 hearing inherently unreliable, to create a false 23 evidentiary basis for rescinding the grant of parole. 24 (Docket Nos. 34 at 1, 36 at 1.) Said another way, petitioner 25 seeks to claim that his denial of parole was the result of biased 26 hearing officers who admitted and then relied on fabricated and 27 false evidence to reach their decision. (See id.; see also 28 Docket No. 59.) 1 Here, leave of court is required because petitioner’s 2 motions were filed more than 21 days after respondent filed its 3 motion to dismiss (compare Docket Nos. 34, 36, with Docket No. 4 12), and because amendment is opposed by respondent (Docket No. 5 38). However, because the court finds that leave to amend would 6 be futile. For the following reasons, petitioner’s motions for 7 leave to amend will be denied. 8 First, addition of petitioner’s proposed claim is 9 untimely. Petitioner states that he was first denied parole on 10 July 16, 2021. (Docket No. 1 at 1.) The one-year statute of 11 limitations started to run when that decision became final -- on 12 November 13, 2021 -- 120 days after parole was denied. See 13 Shelby v. Bartlett, 391 F.3d 1061 (9th Cir. 2004); see also Redd 14 v. McGrath, 343 F.3d 1077 (9th Cir. 2003); see also 28 U.S.C. § 15 2244(d). 16 Here, because the statute of limitations ran as of 17 November 13, 2022, and because petitioner failed to raise his 18 claim relating to bias in state court, his proposed claim is not 19 entitled to statutory tolling under 28 U.S.C. § 2244(d)(2). Even 20 assuming petitioner’s proposed new claim properly relates back to 21 April 14, 2023, the date he filed his original petition, his 22 proposed amended petition is still untimely by approximately five 23 months. The court finds that granting leave to amend to add a 24 claim that is time-barred would be futile. 25 Second, petitioner has not exhausted his state remedies 26 as required for federal habeas review under 28 U.S.C. § 2254(b). 27 See Rose v. Lundy, 455 U.S. 509 (1982); see also Kelly v. Small, 28 1 315 F.3d 1063, 1066 (9th Cir. 2003); Hunt v. Pliler, 336 F.3d 839 2 (9th Cir. 2003). The exhaustion requirement may be satisfied 3 either (1) “by providing the highest state court with an 4 opportunity to rule on the merits of the claim” or (2) “by 5 showing that at the time the petitioner filed the habeas petition 6 in federal court no state remedies are available to the 7 petitioner and the petitioner has not deliberately by-passed the 8 state remedies.” Batchelor v. Cupp, 693 F.2d 859, 862 (9th Cir. 9 1982) (citations omitted). 10 Here, petitioner has not exhausted any claim regarding 11 the alleged bias of the hearing officers. The court finds that 12 granting leave to amend to add an unexhausted claim would be 13 futile.
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8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 ----oo0oo---- 11 12 JERRALD D. GAZAWAY, No. 2:23-cv-699 WBS DMC P 13 Petitioner, 14 v. ORDER 15 STATE OF CALIFORNIA, 16 Respondent. 17
18 ----oo0oo---- 19 Petitioner Jerrald D. Gazaway, who proceeds pro se, 20 brought his petition for a writ of habeas corpus under 28 U.S.C. 21 § 2254 on April 14, 2023. (Docket No. 1.) Respondent moved to 22 dismiss on September 21, 2023, on the grounds that petitioner’s 23 claims were not cognizable. (Docket No. 12.) The magistrate 24 judge assigned to this case then issued findings and 25 recommendations that the motion to dismiss should be granted 26 (Docket No. 28), to which petitioner filed objections (Docket No. 27 33). Prior to the district court ruling on the findings and 28 1 recommendations, petitioner filed two motions for leave to amend 2 and two amended petitions. (Docket Nos. 34, 35, 36, 37.) The 3 magistrate judge then denied petitioner’s motions for leave to 4 amend and struck the amended petitions (Docket No. 40) and the 5 court issued an order adopting the findings and recommendations 6 in full and entered judgment thereto (Docket Nos. 42, 43). 7 Following an appeal, a panel of the Ninth Circuit 8 vacated that judgment, remanding the matter for further 9 proceedings consistent with Williams v. King, 875 F.3d 500 (9th 10 Cir. 2017). (Docket No. 58.) Petitioner subsequently filed a 11 third motion for leave to amend his petition. (Docket No. 59.) 12 Accordingly, the court now considers petitioner’s motions for 13 leave to amend his original petition. (Docket Nos. 34, 36, 59.) 14 I. Legal Standard 15 Under Federal Rule of Civil Procedure 15, a party may 16 amend his pleading once as a matter of course within 21 days of 17 serving the pleading or, if the pleading is one to which a 18 responsive pleading is required, within 21 days after service of 19 the responsive pleading, or within 21 days after service of a 20 motion under Rule 12(b), 12(e), or 12(f), whichever time is 21 earlier. See Fed. R. Civ. P. 15(a)(1)(A)—(B). Outside of these 22 circumstances, a pleading may only be amended either with leave 23 of the court or upon stipulation of all parties. See Fed. R. 24 Civ. P. 15(a)(2). 25 When leave of the court to amend is sought, the court 26 considers (1) if there is a reasonable relationship between the 27 original pleadings and the proposed amended pleadings, (2) if 28 1 amendment would promote the interest of judicial efficiency and 2 facilitate resolution of the controversy in its entirety, (3) if 3 there has been any undue delay seeking to amend the pleadings, 4 (4) if granting leave to amend would delay a trial on the merits, 5 and (5) if amendment would prejudice the opposing party. See 6 Jackson v. Bank of Hawai’i, 902 F.2d 1385, 1387 (9th Cir. 1990). 7 Further, a court properly denies leave to amend when the proposed 8 amendment is frivolous. See DCD Programs, Ltd. v. Leighton, 833 9 F.2d 183, 186 (9th Cir. 1987). 10 Additionally, “[i]f an amended pleading cannot be made 11 as of right and is filed without leave of court or consent of the 12 opposing party, the amended pleading is a nullity and without 13 legal effect,” and so is properly stricken. Hardin v. Wal-Mart 14 Stores, Inc., 813 F. Supp. 2d 1167, 1181 (E.D. Cal. 2011) 15 (striking fourth amended complaint). 16 II. Discussion 17 Through his motions, petitioner seeks amendment to 18 claim that: 19 [T]he Governor and the Rescission panel fabricated and 20 used actual bias, prejudiced evidence, changed transcripts from mitigating to aggravating by removing 21 the “not” from the statements, in the decision-making process of the parole rescission hearing, making the 22 hearing inherently unreliable, to create a false 23 evidentiary basis for rescinding the grant of parole. 24 (Docket Nos. 34 at 1, 36 at 1.) Said another way, petitioner 25 seeks to claim that his denial of parole was the result of biased 26 hearing officers who admitted and then relied on fabricated and 27 false evidence to reach their decision. (See id.; see also 28 Docket No. 59.) 1 Here, leave of court is required because petitioner’s 2 motions were filed more than 21 days after respondent filed its 3 motion to dismiss (compare Docket Nos. 34, 36, with Docket No. 4 12), and because amendment is opposed by respondent (Docket No. 5 38). However, because the court finds that leave to amend would 6 be futile. For the following reasons, petitioner’s motions for 7 leave to amend will be denied. 8 First, addition of petitioner’s proposed claim is 9 untimely. Petitioner states that he was first denied parole on 10 July 16, 2021. (Docket No. 1 at 1.) The one-year statute of 11 limitations started to run when that decision became final -- on 12 November 13, 2021 -- 120 days after parole was denied. See 13 Shelby v. Bartlett, 391 F.3d 1061 (9th Cir. 2004); see also Redd 14 v. McGrath, 343 F.3d 1077 (9th Cir. 2003); see also 28 U.S.C. § 15 2244(d). 16 Here, because the statute of limitations ran as of 17 November 13, 2022, and because petitioner failed to raise his 18 claim relating to bias in state court, his proposed claim is not 19 entitled to statutory tolling under 28 U.S.C. § 2244(d)(2). Even 20 assuming petitioner’s proposed new claim properly relates back to 21 April 14, 2023, the date he filed his original petition, his 22 proposed amended petition is still untimely by approximately five 23 months. The court finds that granting leave to amend to add a 24 claim that is time-barred would be futile. 25 Second, petitioner has not exhausted his state remedies 26 as required for federal habeas review under 28 U.S.C. § 2254(b). 27 See Rose v. Lundy, 455 U.S. 509 (1982); see also Kelly v. Small, 28 1 315 F.3d 1063, 1066 (9th Cir. 2003); Hunt v. Pliler, 336 F.3d 839 2 (9th Cir. 2003). The exhaustion requirement may be satisfied 3 either (1) “by providing the highest state court with an 4 opportunity to rule on the merits of the claim” or (2) “by 5 showing that at the time the petitioner filed the habeas petition 6 in federal court no state remedies are available to the 7 petitioner and the petitioner has not deliberately by-passed the 8 state remedies.” Batchelor v. Cupp, 693 F.2d 859, 862 (9th Cir. 9 1982) (citations omitted). 10 Here, petitioner has not exhausted any claim regarding 11 the alleged bias of the hearing officers. The court finds that 12 granting leave to amend to add an unexhausted claim would be 13 futile. 14 Third, petitioner’s proposed new claim is not 15 cognizable. For purposes of federal habeas review, the only 16 cognizable parole-related claims are those related to notice and 17 the opportunity to be heard. See Swarthout v. Cooke, 562 U.S. 18 216, 220—21 (2011). Claims that relate to the nature of evidence 19 upon which a parole board denies a request for parole are, 20 therefore, not cognizable. See id. The court finds that 21 granting leave to amend to add a non-cognizable claim would be 22 futile. 23 III. Conclusion 24 For the reasons discussed above, the court agrees with 25 the analysis originally offered by the magistrate judge. (See 26 Docket No. 40.) Accordingly, the court finds no reason to reach 27 a different conclusion regarding adoption of the findings and 28 ne nnn ee en ee non nn nn nn EO EO EEE
1 . recommendations. (Docket No. 28.) 2 IT IS THEREFORE ORDERED that petitioner’s motions for 3 leave to amend his petition (Docket Nos. 34, 36, 59) be, and the 4 same hereby are, DENIED. 5 IT IS ALSO ORDERED that petitioner’s first and second 6 amended petitions (Docket Nos. 35, 37) be, and the same hereby 7 are, STRIKEN. 8 ACCORDINGLY, IT IS FURTHER ORDERED that: 9 (1) The findings and recommendations filed May 14, 10 2024, (Docket No. 28) be, and the same hereby is, ADOPTED IN 11 FULL. 12 (2) Respondent’s motion to dismiss (Docket No. 12) be, 13 and the same hereby is, GRANTED. 14 (3) The Court DECLINES to issue a certificate of 15 appealability. 16 (4) The Clerk of the Court is directed to enter 17 judgment and close this file. 18 IT IS SO ORDERED . 19 bi bleaw~ joti..t-— Dated: June 23, 2026 20 WILLIAM B. SHUBB UNITED STATES DISTRICT JUDGE 21 22 23 24 25 26 27 28