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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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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