Opinion

Opinion

Court
District Court, E.D. California
Filed
Jun 23, 2026
Cited by
0 cases
Authority
More cited than 41.7%

The opinion

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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JERRALD D. GAZAWAY, No. 2:23-cv-699 WBS DMC P

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Petitioner,

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v. ORDER

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STATE OF CALIFORNIA,

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Respondent.

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Petitioner Jerrald D. Gazaway, who proceeds pro se,

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brought his petition for a writ of habeas corpus under 28 U.S.C.

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§ 2254 on April 14, 2023. (Docket No. 1.) Respondent moved to

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dismiss on September 21, 2023, on the grounds that petitioner’s

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claims were not cognizable. (Docket No. 12.) The magistrate

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judge assigned to this case then issued findings and

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recommendations that the motion to dismiss should be granted

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(Docket No. 28), to which petitioner filed objections (Docket No.

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33). Prior to the district court ruling on the findings and

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1 recommendations, petitioner filed two motions for leave to amend

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and two amended petitions. (Docket Nos. 34, 35, 36, 37.) The

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magistrate judge then denied petitioner’s motions for leave to

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amend and struck the amended petitions (Docket No. 40) and the

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court issued an order adopting the findings and recommendations

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in full and entered judgment thereto (Docket Nos. 42, 43).

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Following an appeal, a panel of the Ninth Circuit

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vacated that judgment, remanding the matter for further

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proceedings consistent with Williams v. King, 875 F.3d 500 (9th

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Cir. 2017). (Docket No. 58.) Petitioner subsequently filed a

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third motion for leave to amend his petition. (Docket No. 59.)

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Accordingly, the court now considers petitioner’s motions for

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leave to amend his original petition. (Docket Nos. 34, 36, 59.)

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I. Legal Standard

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Under Federal Rule of Civil Procedure 15, a party may

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amend his pleading once as a matter of course within 21 days of

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serving the pleading or, if the pleading is one to which a

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responsive pleading is required, within 21 days after service of

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the responsive pleading, or within 21 days after service of a

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motion under Rule 12(b), 12(e), or 12(f), whichever time is

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earlier. See Fed. R. Civ. P. 15(a)(1)(A)—(B). Outside of these

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circumstances, a pleading may only be amended either with leave

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of the court or upon stipulation of all parties. See Fed. R.

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Civ. P. 15(a)(2).

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When leave of the court to amend is sought, the court

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considers (1) if there is a reasonable relationship between the

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original pleadings and the proposed amended pleadings, (2) if

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1 amendment would promote the interest of judicial efficiency and

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facilitate resolution of the controversy in its entirety, (3) if

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there has been any undue delay seeking to amend the pleadings,

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(4) if granting leave to amend would delay a trial on the merits,

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and (5) if amendment would prejudice the opposing party. See

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Jackson v. Bank of Hawai’i, 902 F.2d 1385, 1387 (9th Cir. 1990).

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Further, a court properly denies leave to amend when the proposed

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amendment is frivolous. See DCD Programs, Ltd. v. Leighton, 833

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F.2d 183, 186 (9th Cir. 1987).

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Additionally, “[i]f an amended pleading cannot be made

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as of right and is filed without leave of court or consent of the

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opposing party, the amended pleading is a nullity and without

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legal effect,” and so is properly stricken. Hardin v. Wal-Mart

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Stores, Inc., 813 F. Supp. 2d 1167, 1181 (E.D. Cal. 2011)

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(striking fourth amended complaint).

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II. Discussion

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Through his motions, petitioner seeks amendment to

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claim that:

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[T]he Governor and the Rescission panel fabricated and

20 used actual bias, prejudiced evidence, changed

transcripts from mitigating to aggravating by removing

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the “not” from the statements, in the decision-making

process of the parole rescission hearing, making the

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hearing inherently unreliable, to create a false

23 evidentiary basis for rescinding the grant of parole.

24 (Docket Nos. 34 at 1, 36 at 1.) Said another way, petitioner

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26 hearing officers who admitted and then relied on fabricated and

27 false evidence to reach their decision. (See id.; see also

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1 Here, leave of court is required because petitioner’s

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motions were filed more than 21 days after respondent filed its

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motion to dismiss (compare Docket Nos. 34, 36, with Docket No.

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12), and because amendment is opposed by respondent (Docket No.

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38). However, because the court finds that leave to amend would

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be futile. For the following reasons, petitioner’s motions for

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leave to amend will be denied.

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First, addition of petitioner’s proposed claim is

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untimely. Petitioner states that he was first denied parole on

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July 16, 2021. (Docket No. 1 at 1.) The one-year statute of

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limitations started to run when that decision became final -- on

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November 13, 2021 -- 120 days after parole was denied. See

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Shelby v. Bartlett, 391 F.3d 1061 (9th Cir. 2004); see also Redd

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v. McGrath, 343 F.3d 1077 (9th Cir. 2003); see also 28 U.S.C. §

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2244(d).

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Here, because the statute of limitations ran as of

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November 13, 2022, and because petitioner failed to raise his

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claim relating to bias in state court, his proposed claim is not

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entitled to statutory tolling under 28 U.S.C. § 2244(d)(2). Even

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assuming petitioner’s proposed new claim properly relates back to

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April 14, 2023, the date he filed his original petition, his

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proposed amended petition is still untimely by approximately five

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months. The court finds that granting leave to amend to add a

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claim that is time-barred would be futile.

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Second, petitioner has not exhausted his state remedies

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as required for federal habeas review under 28 U.S.C. § 2254(b).

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See Rose v. Lundy, 455 U.S. 509 (1982); see also Kelly v. Small,

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1 315 F.3d 1063, 1066 (9th Cir. 2003); Hunt v. Pliler, 336 F.3d 839

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(9th Cir. 2003). The exhaustion requirement may be satisfied

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either (1) “by providing the highest state court with an

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opportunity to rule on the merits of the claim” or (2) “by

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showing that at the time the petitioner filed the habeas petition

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in federal court no state remedies are available to the

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petitioner and the petitioner has not deliberately by-passed the

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state remedies.” Batchelor v. Cupp, 693 F.2d 859, 862 (9th Cir.

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1982) (citations omitted).

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Here, petitioner has not exhausted any claim regarding

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the alleged bias of the hearing officers. The court finds that

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granting leave to amend to add an unexhausted claim would be

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futile.

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Third, petitioner’s proposed new claim is not

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cognizable. For purposes of federal habeas review, the only

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cognizable parole-related claims are those related to notice and

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the opportunity to be heard. See Swarthout v. Cooke, 562 U.S.

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216, 220—21 (2011). Claims that relate to the nature of evidence

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upon which a parole board denies a request for parole are,

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therefore, not cognizable. See id. The court finds that

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granting leave to amend to add a non-cognizable claim would be

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futile.

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III. Conclusion

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For the reasons discussed above, the court agrees with

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the analysis originally offered by the magistrate judge. (See

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Docket No. 40.) Accordingly, the court finds no reason to reach

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a different conclusion regarding adoption of the findings and

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ne nnn ee en ee non nn nn nn EO EO EEE

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recommendations. (Docket No. 28.)

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IT IS THEREFORE ORDERED that petitioner’s motions for

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leave to amend his petition (Docket Nos. 34, 36, 59) be, and the

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same hereby are, DENIED.

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IT IS ALSO ORDERED that petitioner’s first and second

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amended petitions (Docket Nos. 35, 37) be, and the same hereby

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are, STRIKEN.

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ACCORDINGLY, IT IS FURTHER ORDERED that:

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(1) The findings and recommendations filed May 14,

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2024, (Docket No. 28) be, and the same hereby is, ADOPTED IN

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FULL.

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(2) Respondent’s motion to dismiss (Docket No. 12) be,

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and the same hereby is, GRANTED.

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(3) The Court DECLINES to issue a certificate of

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appealability.

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(4) The Clerk of the Court is directed to enter

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judgment and close this file.

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IT IS SO ORDERED .

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Dated: June 23, 2026

20 WILLIAM B. SHUBB

UNITED STATES DISTRICT JUDGE

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This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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