The opinion of the court was delivered by: Pearson, J.
ORDER ADOPTING THE MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION AND DENYING
PETITIONER'S MOTION FOR LEAVE ) TO AMEND PETITION AND MOTION ) TO
STAY THIS CASE AND HOLD IN
ABEYANCE [Resolving ECF Nos. 19 and 20]
Before the Court is the Report and Recommendation (ECF No. 25) filed by Magistrate Judge James R. Knepp II recommending that the Court deny Petitioner Azzam Ahmed's Motion for Leave to Amend his Petition for a writ of habeas corpus (ECF No. 19) and Motion to Stay This Case and Hold in Abeyance Pending Exhaustion of Petitioner's Petition for Post-Conviction Relief Filed with the State Trial Court (ECF No. 20) filed by Petitioner Azzam Ahmed ("Ahmed"). Ahmed has objected to the Report and Recommendation. (ECF No. 28). For the reasons set forth below, the Report and Recommendation is adopted. Ahmed's motions for leave to amend his petition and to stay the case and hold it in abeyance are denied.
The standard of review used by the Court in examining a Report and Recommendation is set forth in 28 U.S.C. § 636. The Court "shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made." Id. § 636(b)(1)(C). The Court "may accept, reject or modify, in whole or in part, the findings or recommendations made by the magistrate judge." Id.
The Report and Recommendation before the Court accurately details the facts and procedural history of the case. Those facts and history, to which neither party has objected, are restated herein.
Petitioner Azzam Ahmed was convicted in the Common Pleas Court of Cuyahoga County on two counts of rape, seven counts of sexual battery, and eleven counts of sexual imposition. On February 18, 2004 he was sentenced to consecutive terms totaling 45 years of incarceration and later resentenced on May 23, 2006 to the same aggregate term. Continuing to the present, Ahmed, through counsel, has engaged in numerous state and federal procedures to overturn these convictions or reduce his sentence. On March 21, 2009, with the assistance of counsel, Ahmed filed a petition under 28 U.S.C. §2254 for habeas corpus review, alleging eight grounds for relief. ECF No. 25 at 2.
On August 4, 2010, Magistrate Judge James S. Gallas (now retired)
issued a report and recommending that Ahmed's habeas petition be
denied in its entirety (ECF No. 15). Ahmed timely filed objections (ECF No. 18).*fn1
Ahmed also, contemporaneously, moved the Court for leave to
amend his petition to add a new ground (ECF No. 19) and to stay the
case pending exhaustion of his state remedies on that ground (ECF No.
20).*fn2 ECF No. 25 at 1.
The motions to amend the petition and to stay this proceeding were referred to Magistrate Judge James R. Knepp II. On April 1, 2011, the magistrate judge recommended that both motions be denied. Ahmed filed timely objections.
A. Motion to Amend the Petition
A motion to amend a habeas petition is governed by Rule 15(a) of the Federal Rules of Civil Procedure. See 28 U.S.C. § 2242; Hodges v. Rose, 570 F.2d 643, 649 (6th Cir. 1978). Although the Court is directed to grant leave to amend freely, the right to amend is not unlimited. The Court has discretion to deny leave to amend a habeas petition when the amendment would be futile. See Oleson v. United States, 27 F. App'x 566, 569 (6th Cir. 2001).
"Habeas corpus is not a neutral proceeding in which the petitioner and the State stand on an equal footing. Rather, it is an asymmetrical enterprise in which a prisoner seeks to overturn a presumptively valid judgment of conviction. Because of this, the petitioner generally bears the burden of proof ...