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IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF CALIFORNIA

WILLIAM A. ROMERO, No. CIV S-04-0459-MCE-CMK-P

Petitioner, 

vs. ORDER

D. RUNNELS,

Respondent.

 /

Petitioner, a state prisoner proceeding pro se, brings this petition for a writ of

habeas corpus pursuant to 28 U.S.C. § 2254. Pending before the court is petitioner’s motion for

leave to file an amended petition (Doc. 29). Pursuant to the court’s March 22, 2006, order,

respondent has filed a response (Doc. 33).

On December 7, 2005, the court denied petitioner’s motion for an order staying

these proceedings and holding consideration of petitioner’s claims in abeyance pending

exhaustion in state court of unexhausted claims (“stay and abeyance order”). The court

concluded that a stay and abeyance order was not appropriate because this is not a “mixed”

petition scenario where petitioner has presented numerous claims in the same habeas corpus

petition, but some of those claims are unexhausted. Rather, petitioner sought a stay in order to

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exhaust a completely new claim which was neither included in the instant petition, nor presented

to the state court. Petitioner now seeks leave to amend his federal habeas petition in order to add

the new, unexhausted claim. 

The Federal Rules of Civil Procedure, which are applicable in habeas

proceedings, provide that a party may amend his or her pleading “. . . once as a matter of course

at any time before a responsive pleading is served.” Fed. R. Civ. P. 15(a). Once a responsive

pleading is filed, a party’s pleadings may only be amended upon leave of court or stipulation of

all the parties. See id. Because respondent has filed an answer to the petition on January 11,

2005, petitioner properly seeks leave to amend.

Where leave of court to amend is sought, the court considers the following

factors: (1) whether there is a reasonable relationship between the original and amended

pleadings; (2) whether the grant of leave to amend is in the interest of judicial economy and will

promote the speedy resolution of the entire controversy; (3) whether there was a delay in seeking

leave to amend; (4) whether the grant of leave to amend would delay a trial on the merits of the

original claim; and (5) whether the opposing party will be prejudiced by amendment. See

Jackson v. Bank of Hawai’i, 902 F.2d 1385, 1387 (9th Cir. 1990). Leave to amend should be

denied where the proposed amendment is frivolous. See DCD Programs, Ltd. v. Leighton, 833

F.2d 183, 186 (9th Cir. 1987).

The court concludes that these factors weigh against amendment in this case.

Petitioner states that he wants to amend the instant petition to raise a freestanding claim of actual

innocence based on DNA evidence obtained and examined in 2004 pursuant to a motion in state

court filed on petitioner’s behalf by the Northern California Innocence Project. First, there is no

reasonable relationship between the original petition and the proposed amendment. In habeas

cases, a new claim relates back to the original petition only where there is a common core of

operative facts uniting the two. See Mayle v. Felix, 125 S.Ct. 2526, 2572 (2005). As respondent

observes, the dispositive question on the new claim is whether the DNA evidence establishes

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that petitioner was not the perpetrator. None of the claims raised in the original petition raise

this question. Rather, plaintiff’s claims probe alleged instructional error, jury misconduct, and

insufficiency of the evidence. Had petitioner originally asserted claims based on actual

innocence, the analysis might be different. 

Second, granting leave to amend in this case will not promote the speedy

resolution of this case. If leave to amend were granted, the petition would become “mixed” in

that it would contain both exhausted and unexhausted claims. The court would be precluded

from adjudicating the merits until the state court had addressed the unexhausted DNA claim. 

Given that it does not appear that petitioner has begun the state court process as to this claim,

substantial delay would be involved if it were included in the instant petition. 

Third, there appears to have been substantial delay in seeking amendment. 

According to the documents attached to petitioner’s motion for leave to amend, a report on the

DNA evidence was prepared in November 2004. Yet, petitioner waited until February 8, 2006,

to seek leave to amend. Had petitioner simply filed an amended petition in November – which

was before respondent answered the petition – the amendment would have been accepted as of

right. Moreover, petitioner’s pro se status does not explain the delay. Given that the DNA

evidence was obtained on behalf of petitioner by the Northern California Innocence Project,

there is no reason to believe that petitioner did not have contemporaneous access to the lab

report. 

Based on these considerations, the court finds that leave to amend should not be

granted. Even if the court were inclined to allow the petition to be amended, the result would be

a mixed petition. The options at that point would be to: (1) dismiss the entire petition for lack of

exhaustion, without prejudice to petitioner returning to this court once the state court has ruled

on the new claim; or (2) to issue a stay and abeyance order. The first option would be unavailing

to petitioner because the statute of limitations has expired. See 28 U.S.C. § 2244(d). As to the

second option, the court finds that petitioner would not be entitled to a stay and abeyance order

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in this case. As a threshold condition for this court to exercise its discretion to issue a stay and

abeyance order, petitioner must demonstrate good cause for failing to exhaust his claims before

raising them in this case. See Rhines v. Weber, 125 S.Ct. 1528, 1534-35 (2005). As discussed

above, petitioner has not even begun the state court exhaustion process as to the new DNA

claim, and he offers no explanation for his failure to do so. 

For the foregoing reasons, petitioner’s motion for leave to amend will be denied.

Nothing in this order, however, prevents petitioner from pursuing his actual innocence DNA

claim in the state courts. This petition is now ready for a decision on the merits. 

Accordingly, IT IS HEREBY ORDERED that petitioner’s motion for leave to

amend is denied.

DATED: April 5, 2006.

______________________________________

CRAIG M. KELLISON

UNITED STATES MAGISTRATE JUDGE

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