Joshua Roy Ward v. Nethanjah Breitenbach, et al.

• Court: District Court, D. Nevada
• Decided: November 5, 2025
• Docket: 3:25-cv-00254
• Status: Unknown

Opinion

1 UNITED STATES DISTRICT COURT 2 DISTRICT OF NEVADA 3

4 JOSHUA ROY WARD, Case No. 3:25-cv-00254-ART-CSD

5 Petitioner, ORDER

6 v.

7 NETHANJAH BREITENBACH, et al.,

8 Respondents.

9 10 In this habeas corpus action, Petitioner Joshua Roy Ward, represented by 11 appointed counsel, filed a first amended petition for writ of habeas corpus on 12 October 14, 2025. (ECF No. 12.) On that date, Ward also filed a motion for leave 13 of court to file a second amended habeas petition. (ECF No. 14.) Ward explains 14 that he filed the first amended petition before what he believes to be the date the 15 applicable limitations period expired, but his counsel’s review of the case and 16 investigation is ongoing, and he wishes to file a second amended petition after 17 further investigation and review of the case. Despite the rather routine nature of 18 Ward’s request (see ECF No. 20 at 5–8), Respondents filed an opposition on 19 October 23 (ECF No. 15.) Ward filed a reply on October 30. (ECF No. 20.) 20 Under Federal Rule of Civil Procedure 15(a)(2), a party may amend a 21 pleading with leave of court, and “[t]he court should freely give leave when justice 22 so requires.” Courts are to apply the “policy of favoring amendments … with 23 ‘extreme liberality.’” United States v. Webb, 655 F. 2d 977, 979 (9th Cir. 1981), 24 citing Rosenberg Brothers & Co. v. Arnold, 283 F.2d 406 (9th Cir. 1960) (per 25 curiam). In deciding whether to grant leave to amend a pleading, a court may 26 consider such factors as “bad faith, undue delay, prejudice to the opposing party, 27 futility of the amendment, and whether the party has previously amended his 1 pleadings.” In re Morris, 363 F.3d 891, 894 (9th Cir. 2004), quoting Bonin v. 2 Calderon, 59 F.3d 815, 845 (9th Cir.1995). 3 In their opposition to Ward’s motion, Respondents argue that Ward fails 4 to provide specifics regarding his counsel’s review of the case and investigation: 5 “what the ongoing investigation is, why the records/interviews are necessary to 6 file the second-amended petition, whether his current efforts relate to his existing 7 or potentially new claims, and when Ward anticipates filing the second-amended 8 petition.” (ECF No. 15 at 2-3.) But—putting aside that much of the information 9 Respondents contend Ward should present would be privileged work product— 10 obviously, at this point Ward cannot know exactly where his counsel’s review of 11 the case and investigation will lead. 12 Respondents characterize Ward’s counsel’s suggested review and 13 investigation of the case as discovery, and they contend that the Court should 14 not allow that discovery, at least at this time, because development of facts 15 beyond the factual development of the facts done in state court is limited by 28 16 U.S.C. § 2254(e)(2) and Shinn v. Ramirez, 596 U.S. 366 (2022). But what Ward 17 wishes to do here is not discovery; it is the review and investigation of the case 18 that a federal habeas petitioner’s counsel is expected to do—and is arguably 19 ethically required to do—in every case. To the extent § 2254(e)(2) and Ramirez 20 might limit development of the facts or might affect the admissibility of evidence, 21 those arguments are premature. Those issues will better be addressed on a 22 motion for leave to conduct discovery, on a motion for evidentiary hearing, on a 23 motion to dismiss, in conjunction with the merits of Ward’s claims, or otherwise, 24 after Ward has a fair opportunity for his counsel to adequately review and 25 investigate his case and amend his petition. 26 Respondents point to no bad faith or undue delay on Ward’s part. 27 Respondents do not argue that they will be unfairly prejudiced if Ward is granted 1 || that the requested amendment would be futile. The Court determines that 2 || granting Ward leave to file a second amended petition is in the interests of 3 || justice. 4 Ward asks the Court to waive application of Local Rule LR 15-1(a), which 5 || generally requires that a party moving to amend a pleading must attach the 6 || proposed amended pleading to the motion. Given the purpose of the amendment 7 || of the habeas petition in this case, that is, to give Ward the opportunity for his 8 || counsel to adequately review and investigate his case before amending his 9 || petition, application of LR 15-1(a) is plainly impracticable. The Court waives 10 || application of LR 15-1 (a). 11 In granting Ward leave to file a second amended petition and setting a 12 || deadline for the second amended petition, the Court does not intend to make 13 |} any comment upon, or affect in any manner, the operation of any applicable 14 || statute of limitations. 15 It is therefore ordered that Petitioner’s Motion for Leave to File Second 16 || Amended Petition for Writ of Habeas Corpus (ECF No. 14) is granted. Petitioner 17 || will have 90 days from the entry of this order to file a second amended habeas 18 || petition. The requirement that Respondents respond to Petitioner’s first amended 19 || habeas petition is vacated. Respondents’ response to Petitioner’s second 20 || amended petition, and further proceedings beyond that, will be governed by the 21 || scheduling order entered on July 16, 2025 (ECF No. 9). 22 23 DATED THIS Sth day of October 2025. 24 25 en

27 UNITED STATES DISTRICT JUDGE 28