United States District Court, N.D. Ohio, Eastern Division
MEMORANDUM OPINION AND ORDER
LIOI UNITED STATES DISTRICT JUDGE
before the Court in this capital habeas corpus case is
petitioner, Delano Hale's (“Hale”), motion
for leave to amend his habeas petition. (Doc. No. 24
[“Mot.”].) Hale seeks to amend his petition to
supplement his claim challenging Ohio's method of
execution by lethal injection in light of the United States
Supreme Court's decision in Bucklew v. Precythe,
__ U.S. __, 139 S.Ct. 1112, 203 L.Ed.2d 521 (2019).
Respondent, Warden Tim Shoop (“respondent”), does
not object to the proposed amendment, except for the
inclusion of the final paragraph, which he argues raises
“entirely new claims” of ineffective assistance
of trial and post-conviction counsel. (Doc. No. 25
[“Opp'n”] at 9170.) For the following reasons,
Hale's motion for leave to amend is granted.
allows a habeas petitioner to amend or supplement a petition
once as a matter of course within twenty-one days after
serving it. Fed.R.Civ.P. 15(a)(1)(B); see also 28
U.S.C. § 2242 (habeas actions “may be amended or
supplemented as provided in the rules of procedure applicable
to civil actions”); Fed.R.Civ.P. 81(a)(4) (federal
rules of civil procedure “apply to proceedings for
habeas corpus”); Rule 12, Rules Governing § 2254
Cases (federal rules of civil procedure apply in habeas cases
“to the extent that they are not inconsistent with any
statutory provisions or [the habeas] rules”). Hale
filed his original petition on October 10, 2018.
(See Doc. No. 13.) Thus, his proposed amendment
falls well outside the prescribed twenty-one-day period for
amendment without leave.
permits amendment after that initial time period, however,
with the opposing party's written consent or the
Court's leave. Fed.R.Civ.P. 15(a)(2). Courts should
“freely give leave when justice so requires.”
Id. In determining whether to grant leave to amend,
courts should consider “‘[u]ndue delay in filing,
lack of notice to the opposing party, bad faith by the moving
party, repeated failure to cure deficiencies by previous
amendments, undue prejudice to the opposing party, and
futility of amendment . . . .'” Coe v.
Bell, 161 F.3d 320, 341 (6th Cir. 1998) (quoting
Brooks v. Celeste, 39 F.3d 125, 130 (6th Cir. 1994)
(citations omitted and punctuation regularized)). Notice and
“substantial prejudice” to the opposing party are
“critical factors” in evaluating such a request.
Id. at 341-42.
habeas corpus actions are also subject to a one-year statute
of limitations. 28 U.S.C. § 2244(d)(1). A motion to
amend a habeas petition, therefore, “will be denied
where it is filed after that period expires unless the
proposed amendment relates back to the date of the original
pleading within the meaning of [Rule 15(c)].”
Howard v. United States, 533 F.3d 472, 475-76 (6th
Cir. 2008). Rule 15(c) permits relation-back of a proposed
amendment to a habeas petition when both the pleading and the
proposed amendment arise out of the same “conduct,
transaction, or occurrence.” Fed.R.Civ.P. 15(c)(1)(B).
A proposed amendment may relate back to a timely petition
“[s]o long as the original and amended petitions state
claims that are tied to a common core of operative
facts….” Mayle v. Felix, 545 U.S. 644,
664, 125 S.Ct. 2562, 162 L.Ed.2d 582 (2005). A claim will not
relate back, however, to the extent that it “asserts a
new ground for relief supported by facts that differ in both
time and type from those the original pleading set
forth.” Id. at 650.
objects only to the final paragraph of Hale's proposed
amendment, which states:
Hale's trial counsel preformed deficiently, and to
Hale's prejudice, when they failed to raise this claim in
state court. Postconviction counsel was deficient, to
Hale's prejudice, in the same way trial counsel's
performance was lacking. Because the evidence supporting this
claim is based outside the record, under Ohio law, Hale's
first opportunity to raise the issue was in postconviction.
Hale was prejudiced by his postconviction counsel's
failure to pursue this substantial issue of trial
counsel's ineffective assistance.
(Doc. No. 24-1 at 9007.) Respondent contends that this
language presents “entirely new claims” of
ineffective assistance of trial and post-conviction counsel
that do not relate back to the original petition and
“have absolutely no basis[.]” (Opp'n at
for his part, denies that he is raising new
ineffective-assistance claims in this paragraph. (Doc. No. 26
at 9174.) Instead, Hale referenced the ineffective assistance
of counsel only to demonstrate cause and prejudice to excuse
any procedural default of his method-of-execution claim
resulting from his failure to fully litigate the claim in
state courts. (Id.)
Court has no reason to question Hale's characterization
of the paragraph at issue. Indeed, Hale frames the
ineffective-assistance claims in that paragraph as a
presentation of cause and prejudice to excuse an anticipated
assertion of the underlying claim's procedural default.
As Hale points out, respondent argues that the
ineffective-assistance claims are baseless but does not
explain why. In permitting the full proposed amendment,
respondent will have the opportunity to develop that argument
in an amended return of writ. Hale's requested amendment,
therefore, will not prejudice respondent in any respect.
Hale's motion for leave to amend his petition is granted.
Respondent shall amend his return of writ to answer
Hale's amended petition within thirty days of the date of