United States District Court, S.D. Ohio, Eastern Division, Columbus
J. Dlott, District Judge
DECISION AND ORDER ON MOTION TO AMEND
Michael R. Merz, United States Magistrate Judge
capital habeas corpus case is before the Court on
Petitioner's Motion for Leave to File an Amended Petition
(ECF No. 271). On the Court's Order to do so, McKnight
supplemented his Motion (ECF No. 278). The Warden opposes the
Motion (ECF No. 279) and McKnight has filed a Reply (ECF No.
motion to amend a habeas petition is a non-dispositive
pre-trial motion within the decisional authority of a
Magistrate Judge. Monroe v. Houk, No. 2:07-cv-258,
2016 U.S. Dist. LEXIS 38999 (S.D. Ohio, Mar. 23,
2016)(Sargus, C.J.); McKnight v. Bobby, 2017 U.S.
Dist. LEXIS 63861 (S.D. Ohio Apr. 27, 2017)(Dlott, D.J.).
U.S.C. § 2242 provides that a habeas corpus petition
“may be amended or supplemented as provided in the
rules of procedure applicable to civil actions.” The
general standard for considering a motion to amend under
Fed.R.Civ.P. 15(a) was enunciated by the United States
Supreme Court in Foman v. Davis, 371 U.S. 178
If the underlying facts or circumstances relied upon by a
plaintiff may be a proper subject of relief, he ought to be
afforded an opportunity to test his claim on the merits. In
the absence of any apparent or declared reason -- such as
undue delay, bad faith or dilatory motive on the part of the
movant, repeated failure to cure deficiencies by amendments
previously allowed, undue prejudice to the opposing party by
virtue of any allowance of the amendment, futility of
amendment, etc. -- the leave sought should, as the rules
require, be "freely given."
371 U.S. at 182. See also Fisher v. Roberts, 125
F.3d 974, 977 (6th Cir. 1997)(citing
considering whether to grant motions to amend under Rule 15,
a court should consider whether the amendment would be
futile, i.e., if it could withstand a motion to dismiss under
Rule 12(b)(6). Hoover v. Langston Equip. Assocs.,
958 F.2d 742, 745 (6th Cir. 1992); Martin v.
Associated Truck Lines, Inc., 801 F.2d 246, 248
(6th Cir. 1986); Marx v. Centran Corp.,
747 F.2d 1536 (6th Cir. 1984); Communications
Systems, Inc., v. City of Danville, 880 F.2d 887
(6th Cir. 1989); Roth Steel Products v. Sharon
Steel Corp., 705 F.2d 134, 155 (6th Cir.
1983); Neighborhood Development Corp. v. Advisory
Council, 632 F.2d 21, 23 (6th Cir. 1980);
United States ex rel. Antoon v. Cleveland Clinic
Found., 978 F.Supp.2d 880, 887 (S.D. Ohio 2013)(Rose,
J.); William F. Shea, LLC v. Bonutti Reseach Inc.,
2011 U.S. Dist. LEXIS 39794, *28 (S.D. Ohio March 31, 2011)
a motion to amend may be denied if it is brought after undue
delay or with dilatory motive. Foman v. Davis, 371
U.S. 178 (1962); Prather v. Dayton Power & Light
Co., 918 F.2d 1255, 1259 (6th Cir. 1990);
Bach v. Drerup, 2012 U.S. Dist. LEXIS 35574, *1
(Ovington, M.J.); Crawford v. Roane, 53 F.3d 750,
753 (6th Cir. 1995), cert denied, 517 U.S. 112
(1996)(amendment should be denied if it “is brought in
bad faith, for dilatory purposes, results in undue delay or
prejudice to the opposing party, or would be futile.”).
proposes to add two new grounds for relief:
FORTY-FIFTH GROUND FOR RELIEF: GREGORY
MCKNIGHT'S SIXTH, EIGHTH, AND FOURTEENTH AMENDMENT RIGHTS
WERE VIOLATED WHEN AT LEAST ONE JUROR VOTED TO CONVICT
MCKNIGHT BASED ON RACIAL ANIMUS AND BIAS.
FORTY-SIXTH GROUND FOR RELIEF: GREGORY
MCKNIGHT'S SIXTH, EIGHTH AND FOURTEENTH AMENDMENT RIGHTS
WERE VIOLATED WHEN AT LEAST ONE JUROR VOTED FOR DEATH BASED
ON RACIAL ANIMUS.
(Proposed Amended Petition, ECF No. 271-1, PageID 17493,
proposed new grounds for relief assertedly arise from the
Supreme Court's decision last year in
Peña-Rodriguez v. Colorado, 137 S.Ct. 855,
197 L.Ed.2d 107 (2017).
Warden does not contend that amending to add these claims
would be futile in the sense that they would fail to state a
claim upon which habeas corpus relief could be granted. It is
plainly unconstitutional to convict someone and sentence him
to death because of his race or on the basis of racial
Court raised sua sponte the question of
counsels' diligence in bringing these claims (ECF No.
275). McKnight responded by noting they were brought within
one year after the decision in
Peña-Rodriguez, supra. Assuming
arguendo that the claims arose when the Supreme
Court handed down Peña-Rodriguez on March 6,
2017, the Motion to Amend beat the statute of limitations by
one day. However, the Court does not accept the implication
that any habeas claim not barred by the statute of
limitations has been brought with due diligence. Here,
however, McKnight has explained that the investigation
necessary to gather evidence for the claims (by interviewing
jurors) did not begin until after
Peña-Rodriguez was decided and required
extensive work (Supplemental Memorandum, ECF No. 278). Faced
with that account of the investigation, the Warden raises no
lack of diligence defense.
the Warden contends amendment would be futile because, under
Teague v. Lane, 489 U.S. 288 (1989),
Peña-Rodriguez does not apply retroactively
to cases pending on collateral review (Warden's
Opposition, ECF No. 279). Petitioner disagrees on many bases
(Reply, ECF No. 280), each of which will be discussed below.
provides that subject to two narrow exceptions, a case that
is decided after a defendant's conviction and sentence
become final may not provide the basis for federal habeas
relief if the case announces a new rule. Graham v.
Collins, 506 U.S. 461 (1993); Stringer v.
Black, 503 U.S. 222 (1992); Teague v. Lane, 489
U.S. 288 (1989).
Teague analysis is normally a threshold issue, but
the nonretroactivity principle is not jurisdictional in the
sense that federal courts must raise and decide it sua
sponte; a federal court may, but need not, decline to
apply Teague if the State does not argue it.
Caspari v. Bohlen, 510 U.S. 383 (1994). Here ...