The opinion of the court was delivered by: U. S. District Judge Honorable Edward J. Lodge
MEMORANDUM DECISION AND ORDER
Currently pending in this habeas corpus matter are Petitioner's Motion to File Amended Petition for Writ of Habeas Corpus (Dkt. 61), Petitioner's Motion to Expand the Record with Additional Attachments (Dkt. 69), and Respondents' Motion for Summary Judgment related to the original Petition (Dkt. 12). The parties have adequately stated the facts and the law in their briefing, and the Court will resolve these matters on the parties' briefing and the written record without oral argument. D. Idaho L. Civ. R. 7.1(d)(1).
For the reasons set forth more fully below, the Court grants Petitioner's Motion to Amend, conditionally grants Petitioner's Motion to Expand the Record, and dismisses Respondents' Motion for Summary Judgment. However, the Court will dismiss Claims A, C (subpart 3), D, E, F, G, and I from the Amended Petition because it plainly appears that Petitioner is not entitled to relief on those claims. See Rule 4 of the Rules Governing Section 2254 Cases.
Respondents will be ordered to file an Answer to the non-dismissed claims, and Petitioner may file a Reply.
In 1992, Leo and Mary Downard were shot to death in their home in Ammon, Idaho. Petitioner's brother, Jeff Smith, was originally suspected of murdering the Downards, but the charges against him were dismissed at his preliminary hearing. After developing new evidence, the State then prosecuted Petitioner.
In 1996, Petitioner was convicted of two counts of murder in the first degree and one count of burglary. (State's Lodging A-3, p. 528.) He was sentenced to a controlling term of life in prison without the possibility of parole. (State's Lodging A-3, pp. 654-56.) The Idaho Court of Appeals affirmed Petitioner's convictions and sentences on direct appeal, and the Idaho Supreme Court declined to review the case. (State's Lodgings B-3, B-6, B-7.)
After Petitioner's trial had concluded, but while his appeal was still pending, the State forwarded a Supplemental Discovery Response to one of Petitioner's trial attorneys, Stevan Thompson. (State's Lodging C-1, pp. 12-18.) The Supplemental Response contained a recently completed written statement from a Jamie Lynn Hill in which she claimed to have witnessed an altercation between Jeff Smith and his ex-wife in 1994 or 1995, before Petitioner was tried. (State's Lodging C-1, p. 16.) Hill asserted that when she tried to intervene, Jeff Smith told her, "you better back down little girl, or I'll take care of you just like I took care of that ol' Ammon couple." (State's Lodging C-1, p. 16.)
Stevan Thompson filed a Petition for Post-Conviction Relief on Petitioner's behalf, alleging that Petitioner had been deprived of his right to the effective assistance of counsel at trial. (State's Lodging C-1, pp. 7-9.) The State filed a Motion for Summary Disposition, and the state district court appointed new counsel to represent Petitioner in the post-conviction matter, replacing Thompson. (State's Lodging C-1, pp. 23-24, 34.)
Based on the information provided by Hill, Petitioner's new counsel amended the Petition to allege that the prosecution had withheld exculpatory evidence from the defense, in violation of Brady v. Maryland, 373 U.S. 83 (1963) (the "Brady claim"). (State's Lodging C-1, pp. 41-42.) In support, he included a new affidavit from Hill, in which she reiterated her claim that Jeff Smith had said that he would "take care of you just like I took care of that ol' Ammon couple," but she also added that she had contacted the Bonneville County Sheriff's Office to report Smith's comment within a few days of the altercation. (State's Lodging C-1, pp. 43-44.)
The state court summarily dismissed the claims of ineffective assistance of trial counsel without allowing evidentiary development, but it allowed Petitioner to go forward with the Brady claim. (State's Lodging C-1, p. 100; State's Lodging C-4.) After holding an evidentiary hearing, the court then denied relief, concluding that the evidence was insufficient to establish that Hill had contacted law enforcement officers with sufficient specificity about Jeff Smith's alleged statement such that the prosecution would have had a duty to disclose it to the defense. (State's Lodging C-4, p. 244.)
On appeal, the Idaho Court of Appeals affirmed the summary dismissal of Petitioner's claims of ineffective assistance of counsel and the lower court's decision that Petitioner was not entitled to relief on his Brady claim. (State's Lodging D-4, p. 8-11.) The Idaho Supreme Court denied Petitioner's request for review. (State's Lodging D-8.)
On May 23, 2008, Petitioner filed a Petition for Writ of Habeas Corpus in this Court. The Court conducted its initial review and allowed Petitioner to proceed with his Brady claim and a claim of ineffective assistance of trial counsel, which appeared to be based on counsel's advice to Petitioner not to testify at his criminal trial. (Dkt. 5, pp. 2-5.) The Court noted that Petitioner's claims of actual innocence were not cognizable as freestanding habeas claims. (Dkt. 5, p. 2.) Petitioner then filed a supplement, clarifying that he is also alleging that his counsel was ineffective on direct appeal. (Dkt. 7.) Respondents submitted an Answer to the Petition and a Motion for Summary Judgment. (Dkts. 12, 13.)
The Court appointed counsel to assist Petitioner, and it conditionally denied Respondents' Motion for Summary Judgment subject to reconsideration after Petitioner's counsel had an opportunity to respond. (Dkt. 27, pp. 14-15.) The Court later granted counsel's request to engage in limited discovery. (Dkt. 43.)
With the assistance of counsel, Petitioner has filed a response to Respondents' Motion in addition to motions to amend the Petition with several new claims and to expand the record with new documentary evidence. These matters are now ripe, and the Court is prepared to issue its ruling.
MOTION FOR LEAVE TO AMEND
Petitioner has requested leave to filed an Amended Petition that contains several new factual allegations and claims. (Dkt. 62.) Respondents object to the request, arguing that Petitioner has engaged in unnecessary delay and that the amendments would be futile because the new claims are untimely and procedurally defaulted. (Id.)
An application for habeas relief may be amended "as provided in the rules of procedure applicable to civil actions." 28 U.S.C. § 2242. Rule 15 of the Federal Rules of Civil Procedure governs the amendment of civil pleadings. Because a responsive pleading has been served in this case, Petitioner may amend only by leave of court, which shall be freely given "when justice so requires." Fed. R. Civ. P. 15(a). There is a strong public policy in favor of amendment, but a court retains the discretion to deny leave to amend 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).
After weighing the Bonin factors, the Court will exercise its discretion under Rule 15(a) and allow the amendment. The Court does not find evidence of bad faith or unnecessary delay, and the Court sees little prejudice to Respondents because they may still raise all procedural defenses in an answer to the Amended Petition.
Because the Court will allow the Amended Petition to be filed, Respondents' Motion for Summary Judgment pertaining to the original Petition will be dismissed without prejudice.
MOTION TO EXPAND THE RECORD
Petitioner next seeks to expand the existing state court record with deposition transcripts of various witnesses that have been developed in discovery, which include the depositions of Stevan Thompson, Victor Rodriguez, Heidi Liebert, and Michael Dickson. (Dkts. 63, 64.) Petitioner also asks for permission to expand the record with "Defense Exhibit AA," which he contends contains "all documents related to the motion by defense to put in evidence regarding Jeff Smith's character." (Dkt. 69, p. 2.) Respondents do not object to these requests "to the extent that [Petitioner] is attempting to expand the record to overcome the state's procedural default defense," but they do object "to the extent [Petitioner] is attempting to expand the record in support of his new claims." (Dkt. 76, p. 6.)
Under Rule 7 of the Rules Governing Section 2254 Cases, a federal district court has the authority to expand the record in a habeas proceeding with additional "materials relating to the petition." In cases that are subject to the Antiterrorism and Effective Death Penalty Act (AEDPA), as here, Rule 7 must be construed in light of AEDPA's provisions limiting new evidentiary development. Specifically, 28 U.S.C. § 2254(e)(2) prohibits an evidentiary hearing in federal court when the petitioner "failed to develop" the factual basis of a claim in state court, unless one of two narrow exceptions is applicable. This restriction also applies when the petitioner seeks relief on new evidence without an evidentiary hearing. See Holland v. Jackson, 542 U.S. 649, 652 (2004); accord Cooper-Smith v. Palmateer, 397 F.3d 1236, 1241 (9th Cir. 2005).
Rule 7 retains independence from § 2254(e)(2), however, when a petitioner only intends to establish some preliminary point, such as proving cause and prejudice to excuse a procedural default, rather than offering new evidence to show that he is entitled to habeas relief on the merits. See, e.g., Cristin v. Brennan, 281 F.3d 404, 412 (3d Cir. 2002) (holding that § 2254(e)(2) is not applicable to evidentiary hearing on procedural default); accord Boyko v. Parke, 259 F.3d 781, 790 (7th Cir. 2001).
Here, it is not clear whether Petitioner is seeking to expand the record to overcome procedural default arguments or to show that he is entitled to relief on the merits, but it appears that he intends for the new evidence to serve double duty on these issues. Respondents do no object to expansion of the record if it is limited to procedural matters, and the Court finds that it is premature to address whether Petitioner may rely on an expanded record to show that he is entitled relief.
Accordingly, the Motion will be conditionally granted. The Court will revisit, if necessary, whether Petitioner may rely on an expanded record to support the merits of his claims after final briefing.
REVIEW OF THE AMENDED PETITION
The Court now reviews the Amended Petition to determine whether it is subject to summary dismissal under Rule 4 of the Rules Governing Section 2254 Cases. Summary dismissal is appropriate where "it plainly appears from the face of the petition and any exhibits annexed to it that the petitioner is not entitled to relief in the district court." Id. The Court takes judicial ...