Opinion
3:03-cv-00027-LRH-VPC.
January 30, 2008
ORDER
This habeas corpus action was remanded from the Court of Appeals on June 19, 2006 (docket #47, 48). The Court of Appeals agreed with this Court's determination that a particular claim — Ground 4 — as it was alleged by petitioner, was unexhausted, but the Court of Appeals directed that on remand this Court should consider the possibility of a stay, pursuant to Rhines v. Weber, 544 U.S. 269 (2005), to allow petitioner an opportunity to exhaust the unexhausted claim. The Rhines decision was decided some two years after this Court addressed the issue of petitioner's unexhausted claims.
This action was litigated to judgment by petitioner acting pro se. Now, on remand, petitioner is represented by the Federal Public Defender (FPD).
Promptly following the remand, on June 22, 2007, petitioner filed a Motion for Leave to File Amended Petition (docket #50). In that motion, petitioner seeks to amend his petition to assert only one claim, which would be a revised version of Ground 4. Petitioner would revise Ground 4 to frame that claim in a manner such that it might be considered to have been exhausted in state court. Petitioner has filed the proposed Amended Petition (docket #51), as well as supporting exhibits (docket #52). Respondents filed an opposition to the Motion for Leave to File Amended Petition (docket #53). Petitioner filed a reply (docket #55).
The Court will grant petitioner leave to file the amended petition.
The Court finds that granting petitioner's motion, and allowing the amendment, is in the interests of justice. See Fed.R.Civ.P. 15(a). This is so, especially, because petitioner is now represented by counsel. Furthermore, respondents have not described any manner in which they will be unfairly prejudiced by the amendment.
Moreover, the Court finds the amendment to be consistent with the instructions of the Court of Appeals on remand. The Court of Appeals remanded for this Court "so that the district court will have an opportunity to consider how Booker's petition should be treated in light of Rhines." Memorandum (docket #47), p. 3. Now with the benefit of counsel, and in light of Rhines and the Court of Appeals' ruling, petitioner seeks to amend his claim such that it might be considered exhausted and might be considered on its merits, rendering a Rhines stay unnecessary.
The Court will allow the amendment, and require respondents to answer or otherwise respond to the amended petition.
IT IS THEREFORE ORDERED that petitioner's Motion for Leave to File Amended Petition (docket #50) is GRANTED. The Amended Petition has already been filed (docket #51). No further action by the Clerk is necessary in that regard.
IT IS FURTHER ORDERED that respondents shall have until and including March 28, 2008, to file an answer or other response to the Amended Petition for Writ of Habeas Corpus (docket #51).