Opinion
No. 2:07-cv-1440-MMM.
August 24, 2009
ORDER GRANTING MOTION FOR LEAVE TO FILE AMENDED PETITION
Petitioner's motion for leave to file an amended petition is GRANTED. The amended petition is deemed filed nunc pro tunc as of the date of its filing.
Leave to amend "shall be freely given when justice so requires." Fed.R.Civ.Pro. 15(a). In determining whether leave to amend should be granted, the court considers: "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, 844-45 (9th Cir. 1995) (applying Rule 15(a) in a habeas case).
The state does not allege that Cantrell is acting in bad faith and the court finds that he is not. Although the state has asserted that amendment is futile because the statute of limitations has run, it failed to lay out why it believes the statute has run, and did not calculate the timing of the statute of limitations. The state is free to argue the statute of limitations in its answer. The court finds that granting the motion will not result in undue delay. The time involved in awaiting an answer on Cantrell's additional claims will not be significant. Although the court recognizes that answering the complaint will create additional work for the state, that response does not rise to the level of sufficient prejudice to deny the leave to amend. While Cantrell previously amended his pleadings, that first amendment was made before the answer had been filed, and thus generated no additional work for the state. It is in the interests of justice to allow Cantrell, as a pro se petitioner, a full opportunity to have his claims heard.
The state is ordered to file an answer to Petitioner's amended petition 30 days from the date this order is entered. The answer should, at this stage, only address the statute of limitations, any procedural bars, and any other preliminary, non-merits issues. The answer should not address the merits of the claims. If resolution of the merits is necessary, the court will order further briefing at a later date.