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Ellis v. Wengler

United States District Court, Ninth Circuit

October 21, 2013



EDWARD J. LODGE, District Judge.

Pending before the Court is Petitioner William Earl Ellis's Amended Petition for Writ of Habeas Corpus (Dkt. 34). Respondent has filed an Answer and Brief in Support of Dismissal (Dkt. 51). Petitioner has submitted to the Court a letter containing argument on the Amended Petition (Dkt. 55), which the Court construes as his Reply. The Court takes judicial notice of the records from Petitioner's state court proceedings, lodged by Respondent on January 28, 2011, and December 9, 2011. ( See Dkt. 14, 37.)

Having fully reviewed the record, including the state court record, the Court finds that the parties have adequately presented the facts and legal arguments in the briefs and record and that the decisional process would not be significantly aided by oral argument. Therefore, the Court shall decide this matter on the written motions, briefs and record without oral argument. D. Idaho L. Civ. R. 7.1(d). Accordingly, the Court enters the following Order denying the Amended Petition and dismissing this case.


Pursuant to a plea agreement that reduced the number of criminal charges against him from two to one, Petitioner pleaded guilty to and was convicted of one count of lewd and lascivious conduct with a minor, arising from criminal charges in the Fifth Judicial District Court in Twin Falls, Idaho, Case No. CR-2005-11076. The judgment of conviction was entered on October 10, 2006. He received a unified sentence of life in prison with 15 years fixed. (State's Lodging A-1.) Petitioner filed a Rule 35 motion for reconsideration of sentence with the state district court, which was denied. ( Id. at 64-66, 74-80.)

Petitioner then filed a direct appeal, which was heard by the Idaho Court of Appeals. Petitioner raised issues of excessive sentencing and failure of the trial court to grant his Rule 35 motion for leniency. (State's Lodging B-4.) Petitioner did not file a timely petition for review with the Idaho Supreme Court. After the Idaho Court of Appeals issued its remittitur, Petitioner filed a petition for review, brief, and motion to accept the untimely petition for review. (State's Lodgings B-5 to B-7.) The Idaho Supreme Court granted the motion permitting the untimely petition for review to be filed and denied the petition. (State's Lodging B-8, B-9.)

Petitioner next filed a petition for post-conviction relief, and the state district court appointed counsel for Petitioner. (State's Lodging C-1.) The State filed a motion for summary dismissal, and the state district court issued a notice of intent to dismiss the post-conviction petition. ( Id. ) After Petitioner's counsel filed a response brief, the trial court issued an opinion and order granting summary dismissal of the petition. ( Id. at 80-88).

Petitioner filed an appeal, in which he presented only one issue: whether, under Estrada v. State, 143 P.3d 833 (Idaho 2006), his Sixth Amendment rights were violated due to trial counsel's alleged failure to advise him of his right to remain silent during his psychosexual evaluation (State's lodging D-1). The Idaho Court of Appeals affirmed the dismissal of the petition, determining that Petitioner failed to show that he suffered prejudice because, during his change of plea colloquy with the trial court, he "waiv[ed] his right to remain silent and participat[ed] in the psychosexual evaluation. The waiver was voluntary, knowing and intelligent." (State's Lodging D-4 at 6-7.) Petitioner's petition for review with the Idaho Supreme Court was denied. (State's Lodging D-5.)

Petitioner next filed a successive petition for state post-conviction relief, and then an amended petition through counsel, which included three claims of ineffective assistance of trial counsel: (1) counsel coerced Petitioner into waiving his preliminary hearing; (2) counsel failed to object to statements that Petitioner had intercourse with the victim and failed to inform the trial court that the victim's medical assessment did "not provide evidence of intercourse"; and (3) counsel failed to explore Petitioner's mental health issues, which might have allowed counsel "to recommend treatment options outside prison." (State's Lodging E-1 at 43-44.) Pursuant to a motion to dismiss filed by the State, the state district court entered a memorandum decision and a separate judgment dismissing Ellis's successive post-conviction petition with prejudice. ( Id., pp.156-173.)

Petitioner appealed, challenging only the summary dismissal of his successive post-conviction claim that his trial "counsel failed to object to an inaccurate statement of the sentencing judge that Petitioner had full blown intercourse repeatedly with a 9 year old girl.'" (State's Lodging F-1, p.6). The Idaho Court of Appeals affirmed the summary dismissal. (State's Lodging F-6.) The Idaho Supreme Court denied the petition for review, concluding all state court proceedings. (State's Lodging F-7, F-8.)

This federal habeas corpus case, filed on August 18, 2010, was stayed for a brief time, pending Petitioner's completion of his state court matters challenging the same conviction and sentence. (Dkt. 22.) The Court re-opened the case when the state court proceedings concluded, and Petitioner filed his Amended Petition.

Respondent lodged the state court record with the Court and filed a Motion for Partial Summary Dismissal. The Court granted the Motion, dismissing as procedurally defaulted all of Petitioner's claims except Claim 6. (Dkt. 50 at 7, 8-9.) Therefore, Claim 6-that counsel rendered ineffective assistance in failing to object to the sentencing court's statement that he had "full blown intercourse" with his child victim-is the only claim remaining in this matter.


1. Request for Leave to File Second Amended Petition

Petitioner has filed a document entitled "Answer to Brief in Support of Dismissal of Petition for Writ of Habeas Corpus" (Dkt. 54), in which Petitioner seeks "an extension of time in order to prepare another amended petition." Because there is presently no deadline for further amendment, the Court construes this document as a motion to file a second amended petition. So construed, the motion will be denied.

The Federal Rules of Civil Procedure apply to habeas corpus proceedings to the extent that they are not inconsistent with established habeas practice and procedure. See Rule 11 of the Rules Governing Section 2254 Cases. By statute, an application for habeas relief may be amended "as provided in the rules of procedure applicable to civil actions." 28 U.S.C. § 2242.

Federal Rule of Civil Procedure 15 governs the amendment of civil pleadings. Pursuant to Rule 15(a)(1), a party may amend a pleading once "as a matter of course" within either (A) 21 days after serving the pleading; or, (B) if the amended pleading requires a responsive pleading to be filed thereafter, within the earlier of 21 days after service of a responsive pleading or a Rule 12(b), (e), or (f) motion. Any other amended pleadings cannot be filed absent written consent of the opposing party or leave of court, though "[t]he Court should freely give leave when justice so requires." Fed.R.Civ.P. 15(a)(2).

Although public policy favors amendment, 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). These factors need not be given equal weight, and futility of the amendment alone may justify the denial of the request. Id.

In a habeas case that has been initiated after the enactment of the Antiterrorism and Effective Death Penalty Act (AEDPA), a request for leave to amend must also be construed in light the provisions and policies of AEDPA, which is designed to promote finality, comity, and federalism. Williams v. Taylor, 529 U.S. 420, 436 (2000). In particular, to advance the finality of judgments, Congress included a one-year statute of limitations in AEDPA, see 28 U.S.C. § 2244(d), and an amended habeas claim that has been tendered after the expiration of AEDPA's statute of limitations will relate back to the initial filing date only when it is "tied to a common core of operative facts" in the original pleading, Mayle v. Felix, 545 U.S. 644, 664 (2005) (construing the interplay between AEDPA and Federal Rule of Civil Procedure 15(c)).

The Court concludes that the factors identified in Bonin v. Calderon weigh against allowing Petitioner to file a second amended petition. There is no specific evidence that Petitioner requested amendment in bad faith. However, Petitioner's first Amended Petition was filed nearly two years ago, ...

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