Omar Cabrera v. Matthew McVay

Opinion

1 2 3 4 5 6 7 10 11 OMAR CABRERA, ) Case No.: 1:20-cv-01738-KES-HBK (HC) ) 12 Petitioner, ) ORDER ADOPTING THE FINDINGS AND ) RECOMMENDATIONS IN PART, AND 13 v. ) DENYING PETITION FOR WRIT OF HABEAS ) CORPUS WITH LEAVE TO AMEND 14 MATTHEW McVAY, ) ) 15 Respondent. ) ) 16 ) Doc. 47 17

18 Petitioner Omar Cabrera is a state prisoner proceeding pro se and in forma pauperis with a 19 petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Doc. 1. The matter was referred 20 to a United States magistrate judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. 21 On March 18, 2025, the assigned magistrate judge issued findings and recommendations 22 to deny the petition for writ of habeas corpus. Doc. 47. Those findings and recommendations 23 were served upon all parties and contained notice that any objections thereto were to be filed 24 within fourteen (14) days after service. In addition, the parties were “advised that failure to file 25 objections within the specified time may result in the waiver of rights on appeal.” (Id. at 39, 26 citing Wilkerson v. Wheeler, 772 F.3d 834, 838-39 (9th Cir. 2014); Baxter v. Sullivan, 923 F.2d 27 1391, 1394 (9th Cir. 1991)). 28 1 After receiving an extension and authorization to proceed pro se, see Doc. 63, petitioner 2 filed objections on August 4, 2025. Doc. 64. Petitioner argues that the magistrate judge’s 3 conclusions as to his claims are debatable such that a certificate of appealability should issue. See 4 id. at 4-7. But petitioner restates arguments from his petition and does not meaningfully address 5 the magistrate judge’s reasoning in the findings and recommendations. Id. Petitioner also 6 presents a new ineffective assistance of counsel argument based on his federal habeas counsel’s 7 failure to amend his petition “to identify the factual support” for his original ineffective assistance 8 of counsel claim in his petition. Id. at 8. Petitioner requests leave to amend his petition to 9 include these additional facts. Id. 10 According to 28 U.S.C. § 636(b)(1), this Court performed a de novo review of this case. 11 Having carefully reviewed the matter, the Court concludes the findings and recommendations are 12 supported by the record and proper analysis. 13 Under Rule 15(a)(2), a petitioner may amend his pleading only with the opposing party's 14 written consent or the court's leave. Fed.R.Civ.P. 15(a)(2). Leave to amend is within the 15 discretion of the district court and should be “freely” granted “when justice so requires”. See id.; 16 see also Jackson v. Bank of Hawaii, 902 F.2d 1385, 1387 (9th Cir. 1990). The district court may 17 deny such a motion if permitting the amendment would prejudice the opposing party, produce an 18 undue delay in litigation, or result in futility. Id.; see also Foman v. Davis, 371 U.S. 178, 182 19 (1962). As the findings and recommendations note, petitioner’s state habeas petitions appear to 20 allege if “far greater detail” the basis for his ineffective assistance of counsel claims as to trial and 21 state appellate counsel, but the magistrate judge recommended denial of the ineffective assistance 22 of counsel claim as petitioner’s counsel had not requested leave to amend his petition to identify 23 factual support for his claims. Doc. 47 at 37. Now that petitioner is proceeding pro se, he seeks 24 the opportunity to add the facts for this claim in an amended petition. Respondent has not filed a 25 response to petitioner's request to amend his petition. Granting leave to amend would not 26 prejudice respondent, unduly delay litigation, or result in futility. Thus, the Court grants 27 petitioner’s request for leave to amend as to claim (5), his claim for ineffective assistance of 28 counsel. ] Accordingly, 2 1. The findings and recommendations issued on March 18, 2025, Doc. 47, are 3 adopted in part. 4 2. The petition for writ of habeas corpus, Doc. 1, is denied. The petition is denied 5 with leave to amend as to claim 5, petitioner’s claim for ineffective assistance of 6 counsel. The petition is denied without leave to amend as to all other claims. 7 3. Petitioner may file an amended habeas petition as to his ineffective assistance of 8 counsel claim, consistent with this Order, within forty-five (45) days of service of 9 this order. If petitioner fails to timely file an amended habeas petition, this matter 10 will be dismissed without further notice. 11 4. The matter is referred back to the magistrate judge for further proceedings. 12 13 14 | ITIS SO ORDERED. _ 15 Dated: _ February 22, 2026 4h 6 UNITED STATES DISTRICT □□□□□

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