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Habeas Hints: Amending Petitions

This column is intended to provide ?Habeas Hints? to prisoners who are considering or handling habeas corpus petitions as their own attorneys (?in pro per?). The focus of the column is on habeas corpus practice under AEDPA, the 1996 habeas corpus law which now governs habeas corpus practice throughout the United States.


When a habeas corpus petitioner files a habeas petition or other pleading, s/he doesn?t ordinarily intend to amend it. Nevertheless, in some cases, an amendment is desirable: For example, amendments can be used to submit newly discovered evidence in support of a petition, to bring the court?s attention to favorable new case law, or to cure a defect that has been identified by one?s opponent. In this column, I discuss the basic procedural requirements which govern the process of amending documents in U.S. District Court, and I provide some ?Habeas Hints? to assist pro pers in getting requests for amendment heard and granted.

Procedural Requirements for Amendments

An amended habeas corpus document [we?ll call it an ?Amendment?] takes the place of a document that has been previously filed by the court. Therefore, in most situations, the Amendment needs the approval of the judge before it can take effect. Court approval is defined as ?leave to amend? and leave to amend is sought by making a motion to amend.

A motion to amend performs several functions, each of which is addressed by a specific supporting document. The necessary documents are listed below, along with some suggested language to use in preparing them. (As with any documents submitted for filing, submit an original and one copy of all of your documents to the court, provide an extra copy to be stamped and returned, and make sure each document includes a Proof of Service as the last page.)

1. Motion for Leave to Amend.

First, you must provide notice to the court and to your opponent of your intention to seek leave to amend, and identify the document that you wish to replace and the nature of the change you are seeking. On federal habeas corpus, this notice is provided in the cover document, entitled ?Motion for Leave to Amend?. Use language such as the following:



PLEASE TAKE NOTICE that Petitioner [name], in propria persona, hereby seeks to leave to amend the __ previously filed in this matter, and to file in its stead the document provided herewith as the ?Proposed Amendment?.

The motion is based on the supporting documents which are attached, and upon the files and records of this case. A Proposed Order is also submitted.

DATED: ___/s/ Petitioner

2. Supporting Declaration.

One of the main things the court will want to consider in deciding whether to allow the petitioner to amend is why the Amendment is being sought now rather than at some earlier time. In other words, the petitioner must demonstrate to the court that s/he has acted with ?due diligence? in moving to amend, rather than out of forgetfulness or laziness. The Supporting Declaration serves this purpose, and in pro per cases is submitted by the prisoner in his or her own name. The Supporting Declaration should summarize the nature of the Amendment being sought, and should explain why the petitioner has waited until this particular time to amend. The declaration should be entirely factual and should only relate dates and facts that the petitioner has personal knowledge of, or can document from the existing file. It should end with a declaration under penalty of perjury. A typical format is as follows:


I ___, am the Petitioner, in propria persona.

I am personally familiar with the facts stated herein, and I have personally reviewed the file in this matter, and on that basis I declare as follows:

1. This motion to seeks to amend ____________, filed on ____.

2. The purpose of the Amendment is to ____.

3. This motion is being filed now rather than at an earlier time because: ________.

I declare under penalty and pursuant to the laws of California that the foregoing is true and correct, to the best of my knowledge, information, and belief.

Executed on [date] _________, at ______________[city, state].

3. Points and Authorities.

Unlike most aspects of habeas corpus, the law governing amendments is extremely favorable to petitioners. Specifically, there is a long-standing policy of the courts to prefer resolution of cases on the merits rather than on technicalities, so the petitioner starts out with a ?presumption? that the motion should be granted. At the same time, the other can attempt to rebut that presumption, so the petitioner should bring the favorable law to the court?s attention in order to put the other side on the defensive. Below is an appropriate argument title and some very basic law that can be cited to the court.



After the opposing party has answered, Rule 15 of the Federal Rules of Civil Procedure (FRCP) places leave to amend within the sound discretion of the trial court. See, e.g., United States v. Webb, 655 F.2d 977, 979 (9th Cir. 1981). However, in exercising that discretion, ?a court must be guided by the underlying purpose of Rule 15 ... [which is] ... to facilitate decision on the merits ...? Ibid., citing Conley v. Gibson, 355 U.S. 41, 47-49 (1957). Accordingly, ?Rule 15?s policy of favoring amendments to pleadings should be applied with ?extreme liberality?.? Webb, supra, at 979, citing Rosenberg Brothers & Co. v. Arnold, 283 F.2d 406 (9th Cir. 1960); see also Owens v. Kaiser Found. Health Plan, Inc., 244 F.3d 708, 712 (9th Cir. 2001) [leave to amend to be ?freely given when justice so requires?; and policy favoring amendment ?to be applied with extreme liberality?].

In Forman v. Davis, 371 U.S. 178, 182 (1962), the United States Supreme Court identified the following factors that a district court should consider in deciding whether to grant leave to amend:

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 allowance of the amendment, futility of amendment, etc. ? the leave sought should, as the rules require, be ?freely given?.

Id. at 182, 83 S.Ct. 227.

4. Proposed Amendment.

Any Motion to Amend must be accompanied by a copy of the ?Proposed Amendment? that the party is seeking. Because the clerk cannot actually file the Proposed Amendment until the required leave to amend is granted, I recommend that petitioners put the word ?proposed? in brackets, i.e. ?[PROPOSED] AMENDMENT?. That way the clerk can file the original document as-is; and then, after the motion is granted, the clerk can simply cross out the word ?proposed?.

5. Proposed Order.

It is courteous and helpful to provide the judge with a proposed form of order that the court can sign upon granting the motion:


The court has considered Petitioner?s Motion for Leave to Amend and supporting documents.

Good cause appearing, it is hereby ORDERED that Petitioner?s Motion to Amend __ is GRANTED.

The clerk is ordered to file the Proposed Amendment.

Dated: ______


Habeas Hints:

Don?t leave anything out of the Amendment.

Keep in mind that the Amendment is going to completely replace the document you are amending, such that the original will legally cease to exist. Therefore, don?t leave anything out of the Amendment that you want the court to consider. This applies equally to exhibits: Assume that once your Amendment is filed, any exhibits you previously filed will legally cease to exist, replaced only by those you submit with your Amendment. Therefore, file a separate, complete set of exhibits with your Proposed Amendment, even if that means re-submitting everything you filed with your original document.

You Can Amend A Habeas Petition Once Without Leave Of Court Until The Other Side Files An Answer.

Normally you need leave of court to file an amendment of an existing document. However, there is one important exception: Until the other side has filed an Answer, the petitioner can amend the petition one time without asking the court?s permission. This procedure is very useful in the following instances:

[1] To clean up a hastily filed petition: When the original petition had to be filed in haste in order to comply with the AEDPA statute of limitations, a First Amended Petition can, once the clock has been stopped by the initial filing, add omitted facts, attach omitted exhibits, and generally ?clean up? errors in the original petition caused by the pressure of time.

[2] To remove defects exposed by a Motion to Dismiss. A Motion to Dismiss is not an Answer. Therefore, if a petitioner can effectively respond to the motion by filing a First Amended Petition which removes the defects identified in the dismissal motion, the amended petition should be filed instead of an Opposition to the dismissal motion. That puts the ball back in the Attorney General?s court and forces the A.G. to acquiesce in your Amendment by filing an Answer, or to move to dismiss all over again.

You Can Seek To Amend Oppositions As Well As Petitions.

The Motion to Amend is most commonly used to amend habeas corpus petitions. However, one can also move to amend an Opposition that the petitioner has previously filed -- for example, to add an argument based on newly published case law. (See, e.g., Danforth v. Minnesota, 128 S.Ct. 1029 (2008), which holds that state courts can impose retroactivity standards that are more forgiving than those set forth in Teague v. Lane, 489 U.S. 288 (1989).)

Be Prepared To Follow Up Your Motion To Amend With A Motion For Stay If You Need One To Protect Yourself On The AEDPA Statute Of Limitations.

If a petitioner amends a habeas petition to add a new claim that is not exhausted, Respondent can and usually will move to dismiss the Amended Petition on the ground that the petition is now ?mixed? because of the unexhausted claim, which requires that it be dismissed. (The same thing can happen when a petitioner adds new, significant facts via amendment to a previously exhausted claim.) In response, the petitioner must either expressly abandon the unexhausted claim, or go back to state court to exhaust the new claim and then return to federal court once exhaustion has been completed. If the petitioner opts for the latter alternative, s/he must take action to have the federal habeas corpus action ?stayed? (frozen in time) pending the petitioner?s return to state court; otherwise, by the time s/he is ready to return to federal court, the AEDPA statute of limitations will probably have run. Requesting such a stay is called moving for ?Stay and Abeyance?, and the requirements for obtaining the stay are set forth in Rhines v. Weber, 124 S.Ct. 1529 (2005). If a petitioner already knows when an amended petition is filed that it contains one or more exhausted claims, then a Motion for Stay and Abeyance can and should be sought at the time of filing. Otherwise a Motion for Stay and Abeyance should be filed with the Opposition to the dismissal motion.

Kent A. Russell specializes in habeas corpus and post-conviction cases. He is the author of the California Habeas Handbook, which thoroughly explains state and federal habeas corpus and AEDPA. The latest update of the 5th Edition (Spring, 2008) is now shipping, and can be purchased for $39.99 (cost is all-inclusive for prisoners; others pay $10 extra for postage and handling). Use the order form available on the website -- - or just send your address and check or money order to: Kent Russell, ?Cal. Habeas Handbook?, 2299 Sutter Street, San Francisco, CA 94115.

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