Free Order - District Court of Arizona - Arizona

SRM

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 United States of America, Plaintiff/Respondent -vsJose Angel Romero-Lopez, Defendant/Movant CR-04-1008-PHX-JAT CV-06-1017-PHX-JAT (JI) ORDER

UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA

Under consideration is Movant's Motion to Amend, filed March 2, 2007 (#31). Movant's original Motion to Vacate (#24) asserted two grounds for relief. Respondents responded to the motion, and Movant filed a Reply (#29) which argued seven claims for relief. The Court noted that claims raised for the first time in a reply would not be considered, and set a deadline for Movant to file a motion to amend. (Order 2/15/07, #30.) Movant responded by filing an Amended Motion to Vacate (#31). The Court construed the filing of this Amended Motion as motion for leave to amend, and set deadlines for a response and a reply on the motion to amend. (Order 4/3/7, #33.) Respondents have responded (#34) to the motion to amend, arguing that it should be denied on the basis that the amendment is futile. Movant has not replied. Movant's Amended Motion asserts the following four claims for relief: claims: (1) he was denied his right to prosecution on a grand jury Indictment; (2) (a) that any waiver of his right to indictment was unknowingly made, (b) that he received ineffective assistance of counsel when he waived his right, and (c) that his sentence exceeds the statutory maximum; (3) that his waiver of his appeal rights was not knowingly made because of his ineffective assistance of counsel; and (4) that he was improperly sentenced under U.S. v. Booker, 543 U.S. 220 (2005) and Blakely v. Washington, 542 U.S. 296 (2004). Because the Court grants the motion to amend, the foregoing claims (1, 2 a-c, 3, and 4) are the only claims now at
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issue in this case. Respondents assert that the Court should deny the motion to amend on the basis that the amendment is futile because: (1) all of Movant's claims are based on ineffective assistance of counsel, and Movant cannot show prejudice (i.e. that but for the ineffectiveness of counsel he would not have pled guilty); (2) Movant's Booker and Blakely claims are futile, because the only judicially found facts used to increase Petitioner's sentence were his prior convictions, which may properly be determined by a judge, and because Movant admitted all of the facts relied on at sentencing. However, motions to amend are generally considered favorably as permitting an adjudication of a claim on its merits, and leave to amend should be "freely given when justice so requires." Fed. R. Civ. P. 15(a)(1). See Foman v. Davis, 371 U.S. 178, 182 (1962). However, there are conditions under which such requests should be denied. "Futility of amendment can, by itself, justify the denial of a motion for leave to amend." Bonin v. Calderon, 59 F.3d 815 (9th Cir. 1995). "Where the legal basis for a cause of action is tenuous, futility supports the refusal to grant leave to amend." Lockheed Martin Corp. v. Network Solutions, Inc., 194 F.3d 980, 986 (9th Cir. 1999) (emphasis added). Respondent's attacks on Movant's ineffective assistance claims go not to the legal basis for the claim, but to Movant's ability to support it factually, e.g. his ability to show that his plea would have been different or that the basis for the offense level increase was improper. Similarly, Movant's Booker/Blakely claim is based on the legally sufficient assertion that the increase in his offense levels was improperly based upon a judicial determination of a fact. Respondents assume the allegation that the increase was based upon a judicial determination of a prior conviction. That is not pled by Movant. Accordingly, the Court finds that justice requires that the motion to amend be granted, and that Movant be provided the opportunity to support his claims. IT IS THEREFORE ORDERED that Movant's Motion to Amend, filed March 2, 2007 (#31) is GRANTED. IT IS FURTHER ORDERED that Respondent shall have twenty days from the
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filing of this Order to respond to the Amended Motion to Vacate (#31). Petitioner shall have thirty days from the filing of an amended response within which to reply in support of his Amended Motion to vacate. DATED: May 22, 2007
S:\Drafts\OutBox\04-1008-31o Order 07 05 09 re MAmend.wpd

_____________________________________ JAY R. IRWIN United States Magistrate Judge

Case 2:04-cr-01008-JAT

Document 35 - 3 Filed 05/23/2007

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