Towle v. Warden, New Hampshire State Prison

          REPORT AND RECOMMENDATION

          ANDREA K. JOHNSTONE, UNITED STATES MAGISTRATE JUDGE.

         Before 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.

         In the 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.

         Motion to Amend Standard

         Federal 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 omitted).

         Background

         On 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.

         Discussion

         I. Newly Asserted Claims That May Proceed

         Each of 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 action^[1]:

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 offense.

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, ...