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McKnight v. Bobby

United States District Court, S.D. Ohio, Eastern Division, Columbus

May 22, 2018

GREGORY McKNIGHT Petitioner,
v.
DAVID BOBBY, Warden, Respondent.

          Susan J. Dlott, District Judge

          DECISION AND ORDER ON MOTION TO AMEND

          Michael R. Merz, United States Magistrate Judge

         This 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. 280).

         A 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.).

         28 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 (1962):

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 Foman standard).

         In 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) (Frost, J.).

         Likewise, 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.”).

         McKnight 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, 17497.)

         Petitioner's 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).

         The 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 stereotyping.[1]

         The 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.

         Rather, 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.

         Teague 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).

         The 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 ...


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