United States District Court, D. New Hampshire
REPORT AND RECOMMENDATION
K. JOHNSTONE, UNITED STATES MAGISTRATE JUDGE.
the court are petitioner Robert Towle's three motions to
amend (Doc. Nos. 65, 67, 91) and addenda thereto (Doc. Nos.
69, 70, 74). Respondent has filed objections (Doc. Nos. 68,
92) to the motions to amend.
issued this date, the court has granted each of those motions
to amend (Doc. Nos. 65, 67, 91), in part, to the extent it
has deemed the amended petition to include the new federal
claims numbered below as Claims 15-24 and has directed
respondent to file an answer or other response to those
claims. This Report and Recommendation recommends, for
reasons stated below, that the motions to amend at issue
(Doc. Nos. 65, 67, 91) be otherwise denied.
to Amend Standard
Rule of Civil Procedure 15(a)(2) provides that a party who is
no longer able to amend a pleading as of right may amend only
with the court's leave, and that “[t]he court
should freely give leave when justice so requires.”
Fed.R.Civ.P. 15(a)(2); Rule 12, Rules Governing 28 U.S.C.
§ 2254 Petitions (“§ 2254 Rules”)
(Federal Rules of Civil Procedure apply in habeas cases to
the extent they are not inconsistent with any statutory
provision or the § 2254 Rules). “[A] district
court may deny leave to amend when the request is
characterized by undue delay, bad faith, futility, or the
absence of due diligence on the movant's part.”
Nikitine v. Wilmington Tr. Co., 715 F.3d 388, 390
(1st Cir. 2013) (internal quotation marks and citations
March 23, 2016, the court directed service on the respondent,
and directed respondent to answer, Towle's initial habeas
petition (Doc. No. 1) and addendum to that petition (Doc. No.
9), which asserted fourteen claims. See Aug. 28,
2015 Order (Doc. No. 5), at 2-4 (listing Claims 1-14). Towle
now seeks to add additional claims to this action alleging
that his conviction and incarceration were obtained in
violation of his state and federal constitutional rights.
Newly Asserted Claims That May Proceed
the new federal constitutional claims asserted in Towle's
three motions to amend has been fully exhausted in the state
courts. As justice requires an Order granting Towle leave to
raise all of the claims he has exhausted in this case, in the
Order issued this date, Towle's habeas petition is deemed
amended to add the following new claims to this
15. Towle's Fifth and Fourteenth Amendment right not to
be subjected to double jeopardy was violated when:
(a) Towle was convicted of two separate counts of pattern
aggravated felonious sexual assault, each alleging that Towle
committed more than one act of aggravated felonious sexual
assault on the same victim, J.T., during the same time
period, where all of the sexual assaults charged in the two
indictments were part of the same pattern, and was thus twice
convicted of the same offense; and
(b) Towle was sentenced to consecutive sentences on each of
the two indictments, and was thus twice punished for the same
16. Towle's Sixth and Fourteenth Amendment rights were
violated when the trial court: (a) denied Towle the right to
be present for individual juror voir dire conducted at the
bench during jury selection in his state criminal case, and
(b) on the second day of trial, ...