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Sivak v. Hardison

July 31, 2006


The opinion of the court was delivered by: B. Lynn Winmill Chief Judge United States District Court


The Court previously granted Petitioner's request to conduct limited discovery on Claims 5 and 6 in this capital habeas matter. Currently before the Court is Petitioner's Motion for Additional Discovery and Petitioner's renewed request for an evidentiary hearing on these claims.

For the reasons set forth more fully herein, Petitioner's Motion for Additional Discovery will be granted in part and denied in part. Petitioner's request for an evidentiary hearing will be denied.


Petitioner was convicted of felony murder and originally sentenced to death for that crime in 1981, but he was resentenced to death three additional times--in 1983, 1988, and 1992--after remands from the state supreme court. State district court judge Robert Newhouse presided over the trial and each resentencing hearing.

In this proceeding, Petitioner alleges that Judge Newhouse "considered extra-record communications," which he did not disclose to Petitioner's attorneys, in the form of "telephone calls and letters from citizens who expressed their views as to the proper sentence" (Claim 5). (Docket No. 156, p. 18.) Petitioner also contends that he was deprived of his constitutional right to a fair and impartial sentencer, partly because of the manner in which the judge responded to Petitioner's allegation of ex parte contact (Claim 6). (Docket No. 156, p. 19.)

This Court recently denied Petitioner's motions for discovery and an evidentiary hearing on all claims except Claims 5 and 6. (Docket No. 279.) The Court granted Petitioner leave to conduct limited discovery on those claims so that he could develop the material facts, after which the Court would revisit whether an evidentiary hearing would be necessary. (Docket No. 279, pp. 19-21.) Petitioner has now deposed Judge Newhouse and his court clerk at the time of the first sentencing hearing, Glenda Longstreet, and he has filed a Submission of Additional Facts Re: Claims 5 and 6. (Docket No. 289.) Petitioner has also requested leave of court to take more depositions and to subpoena various documents. These matters are now are ripe for the Court's decision.


In his Submission of Additional Facts, Petitioner relies on new allegations of ex parte contact beyond his general claim that the state court judge received "telephone calls and letters from citizens." (Docket No. 156, p. 18.) Specifically, Petitioner now alleges that the judge engaged in the following contacts: (1) he had a brief exchange in his chambers with Petitioner's father, who asked him "why the hell don't you kill the son of a bitch?"; (2) he spoke on the telephone with a representative of the company that owned the gas station where the murder occurred; (3) he was informed by Ms. Longstreet that the brutality of the crime had made her favor the death penalty; and (4) he heard rumors that were circulating through the courthouse, including one that Petitioner had a sexual relationship with his own mother. (Docket No. 289, pp. 7-8.)

Respondent objects to the submission of these facts and argues that Petitioner is attempting to amend his Petition without first seeking leave of court, which he asserts should be denied at this late juncture. Petitioner counters that the new allegations fall within the same broad claim that the state court judge considered "extra-record communications concerning the appropriate sentence." Alternatively, Petitioner argues that he should be given leave to amend. The Court is persuaded by the latter argument.

An application for habeas relief may be amended "as provided in the rules of procedure applicable to civil actions." 28 U.S.C. § 2242. When a responsive pleading has been filed, as here, a party must receive the court's permission to amend, but leave shall be given "freely... when justice so requires." Fed. R. Civ. P. 15(a). While there is a strong policy in favor of allowing a party to amend, a district court retains the discretion to deny a request after considering factors such as bad faith, undue delay, prejudice to the opposing party, futility of the amendment, and whether the party has previously amended his pleadings. Bonin v. Calderon, 59 F.3d 815, 845 (9th Cir. 1995). In exercising its discretion, "a court must be guided by the underlying purpose of Rule 15--to facilitate decision on the merits rather than on the pleadings or technicalities." United States v. Webb, 655 F.2d 977, 979 (9th Cir. 1981).

Here, the Court does not find that Petitioner has acted in bad faith or has delayed the presentation of the new factual allegations, which he learned for the first time during the recent period of discovery, and the Court is unable to conclude that the amendment would be futile. Furthermore, the Court does not believe that Respondent will be seriously prejudiced from a minor amendment that includes more detailed facts in support of the same general legal claim. Therefore, within fourteen days of the date of this Order, Petitioner shall file an amended petition that includes the new factual support. Petitioner may also cure his typographical error listing the Seventh Amendment as the constitutional basis for Claim 5, rather than the Sixth Amendment. These are the only amendments that shall be allowed.


The Court next turns to Petitioner's request to expand the discovery that had been previously authorized on Claims 5 and 6. Petitioner now wishes to depose the presentence investigator and Judge Newhouse's subsequent court clerk. He also seeks access to the entire presentence investigation "file" and to sealed notes in the state district court case file. With the exception of ...

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