                                                                                                                           Opinions of the United
2009 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


3-11-2009

Bivings v. Wakefield
Precedential or Non-Precedential: Non-Precedential

Docket No. 07-3183




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http://digitalcommons.law.villanova.edu/thirdcircuit_2009/1756


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                                                                  NOT PRECEDENTIAL


                   IN THE UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT


                                      NO. 07-3183


                                 TERRANCE BIVINGS
                                     Appellant

                                            v.

              DAVID L. WAKEFIELD; THE DISTRICT ATTORNEY
                 OF THE COUNTY OF MONTGOMERY; THE
           ATTORNEY GENERAL OF THE STATE OF PENNSYLVANIA




                    On Appeal From the United States District Court
                       For the Eastern District of Pennsylvania
                        (D.C. Civil Action No. 07-cv-00929)
                        District Judge: Hon. Berle M. Schiller


                                Argued February 3, 2009

                 BEFORE: McKEE and STAPLETON, Circuit Judges,
                          and IRENAS,* District Judge

                            (Opinion Filed: March 11, 2009)




*Hon. Joseph E. Irenas, Senior United States District Judge for the District of New
Jersey, sitting by designation.
Amy L. Groff (Argued)
David R. Fine
K&L Gates LLP
17 North Second Street - 18th Floor
Harrisburg, PA 17101
 Attorneys for Appellant

Robert M. Falin (Argued)
Patricia E. Coonahan
Erin C. Lentz
Office of District Attorney
P.O. Box 311
Montgomery County Courthouse
Norristown, PA 19404
 Attorneys for Appellees




                                OPINION OF THE COURT




STAPLETON, Circuit Judge:

       The District Court dismissed with prejudice the habeas petition of appellant,

Terrance Bivings. It did so on the ground that the claims stated therein were procedurally

defaulted. In this appeal, Bivings does not contest that his original claims were

procedurally defaulted, but insists that the District Court abused its discretion by ignoring

without comment his application for leave to amend to assert specified exhausted claims.

We will reverse and remand.



                                              2
                                        I. Background

          Following a six-day jury trial, Bivings and his co-defendant were convicted of

first-degree murder, conspiracy to commit murder, aggravated assault, and possession of

firearms not to be carried without a license.1 Bivings was sentenced to a term of life

imprisonment for first degree murder, along with additional terms of years to run both

concurrently and consecutively to that sentence on the other charges. The Superior Court

of Pennsylvania affirmed his judgment of conviction, and the Pennsylvania Supreme

Court denied him leave to appeal on April 26, 2005.

          On August 29, 2005, Bivings filed a petition pursuant to the Pennsylvania Post

Conviction Relief Act (“PCRA”),2 which was dismissed. The Superior Court affirmed,

and the Pennsylvania Supreme Court denied him leave to appeal on January 5, 2007.

          In March of 2007, Bivings, proceeding pro se, initiated this proceeding by filing a

petition for habeas corpus relief, claiming that: 1) the Commonwealth committed a

Batson v. Kentucky, 476 U.S. 79 (1986), violation by using a preemptory strike to strike

an African American juror, and 2) his trial counsel acted ineffectively by failing to

preserve his Batson claim during voir dire and on appeal. Promptly thereafter, a

magistrate judge issued a report recommending that the habeas petition be denied with

prejudice. The report and recommendation noted that Bivings had not raised the Batson


   1
   18 Pa. C.S.A. § 2502(a); 18 Pa. C.S.A. § 903(a); 18 Pa. C.S.A. § 2702(a); 18 Pa.
C.S.A. § 6106.
   2
       42 Pa.C.S. § 9541, et seq.

                                               3
claim or the ineffective assistance of counsel claim before a state court and had

procedurally defaulted those claims. It rejected Bivings’ argument that there was cause

for the default, and also determined that a stay and abeyance so that Bivings could return

to state court to litigate the Batson issue was inappropriate, since Bivings had not

presented a “mixed petition” containing both exhausted and unexhausted claims.

       On June 7, 2002, Bivings, still proceeding pro se, filed objections to the report and

recommendation, in which he sought a stay and abeyance of the petition while he returned

to state court to exhaust the unexhausted claims, or, in the alternative, leave to amend his

habeas petition to delete the unexhausted claims and raise claims that had properly been

exhausted. In his objections, Bivings asserted that he had properly exhausted the

following five claims before the state court: 1) that he did not waive his rights pursuant

to Miranda v. Arizona, 384 U.S. 436 (1966), prior to having a police-arranged

conversation with his co-defendant surreptitiously intercepted; 2) the trial court erred in

permitting into evidence an unnecessarily suggestive identification of him; 3) his trial

counsel rendered ineffective assistance in stipulating to the Commonwealth’s DNA

evidence; 4) his trial counsel rendered ineffective assistance by “failing to file an

interlocutory appeal from the denial of the wiretap suppression”; 5) the trial court erred

“concerning the application of the wiretap.”

       The District Court approved and adopted the Magistrate Judge’s report and

recommendation and ordered that the petition be denied with prejudice. It did not



                                               4
acknowledge or comment upon Bivings’ request to amend his petition to include the

specified exhausted claims. Thereafter, Bivings filed a pro se Fed. R. Civ. P. 59(e)

motion to alter or amend the judgment, arguing that the petition contained both exhausted

and unexhausted claims and should have been treated as a mixed petition. His motion

also insisted that the District Court should have afforded him “the choice of amending or

resubmitting his petition with only his exhausted claims.” App. at 30. The District Court

denied Bivings’ motion to alter or amend the judgment, again without acknowledging or

commenting upon his application for leave to amend.

       When this Court received Bivings’ timely notice of appeal, it was treated as an

application for a certificate of appealability and subjected to the analysis required by

Slack v. McDaniel, 529 U.S. 473, 484 (2000):

       When the district court denies a habeas petition on procedural grounds
       without reaching the prisoner’s underlying constitutional claim, a COA
       should issue when the prisoner shows, at least, that jurists of reason would
       find it debatable whether the petition states a valid claim of the denial of a
       constitutional right and that jurists of reason would find it debatable
       whether the district court was correct in its procedural ruling.

       The results of our analysis are set forth in our order of October 12, 2007, granting

the application in part:

       The foregoing request for a certificate of appealability is granted on the
       procedural question, Slack v. McDaniel, 529 U.S. 473, 484 (2000), whether
       the District Court erred in not granting appellant’s request, as stated in both
       his Objections and Rule 59(e) motion, to amend his habeas corpus petition
       to add those claims he had exhausted in state court, cf. Peoples v. Fulcomer,
       882 F.2d 828, 832 (3d Cir. 1989) (petitioner may opt to delete unexhausted
       claims). The Court finds that two “valid” underlying constitutional claims,


                                              5
       Slack, 529 U.S. at 484, are stated: a claim that appellant did not waive his
       rights pursuant to Miranda v. Arizona, 384 U.S. 436 (1966), prior to having
       a police-arranged conversation with his co-defendant surreptitiously
       intercepted, see Rhode Island v. Innis, 446 U.S. 291, 301 (1980); and a
       claim that trial counsel rendered ineffective assistance, Strickland v.
       Washington, 466 U.S. 668, 687 (1984), in stipulating to the
       Commonwealth’s DNA evidence. A certificate of appealability is denied in
       all other respects.

App. at 12-13.

                                      II. Jurisdiction

       Based on our October 12, 2007, order, we have jurisdiction to review whether the

District Court erred in not granting Bivings’ request to amend his petition to add the two

exhausted claims identified therein. 28 U.S.C. §§ 1291 and 2253(c). We review a district

court’s decision to refuse a party’s request for leave to amend its complaint for abuse of

discretion. Ramsgate Court Townhome Ass’n v. West Chester Borough, 313 F.3d 157,

161 (3d Cir. 2002).

                                III. Amendment Request

       Leave to amend under Rule 15(a) should be “freely given when justice so

requires.” Fed. R. Civ. P. 15(a). The Supreme Court interpreted this rule in the venerable

case of Foman v. Davis, 371 U.S. 178, 182 (1962):

               Rule 15(a) declares that leave to amend ‘shall be freely given when
       justice so requires’; this mandate is to be heeded. See generally, 3 Moore,
       Federal Practice (2d ed. 1948), ¶¶ 15.08, 15.10. If the underlying facts or
       circumstances relied upon by a plaintiff may be a proper subject of relief, he
       ought to be afforded an opportunity to test his claim on the merits. In the
       absence of any apparent or declared reason-such as undue delay, bad faith
       or dilatory motive on the part of the movant, repeated failure to cure


                                             6
       deficiencies by amendments previously allowed, undue prejudice to the
       opposing party by virtue of allowance of the amendment, futility of
       amendment, etc.-the leave sought should, as the rules require, be ‘freely
       given.’ Of course, the grant or denial of an opportunity to amend is within
       the discretion of the District Court, but outright refusal to grant the leave
       without any justifying reason appearing for the denial is not an exercise of
       discretion; it is merely abuse of that discretion and inconsistent with the
       spirit of the Federal Rules.

       By this standard, the District Court abused its discretion in failing to grant Bivings’

request to amend. There is no apparent or declared reason such as bad faith, dilatory

motive, or prejudice to the other party that would justify a denial of the request to amend.

Nor was Bivings’ request to amend untimely. The statute of limitations had begun to run

on July 25, 2005,3 and was tolled as of August 29, 2005, when the Bivings filed a petition

for post-conviction relief in state court. The limitations period began to run again on

January 5, 2007, when the Pennsylvania Supreme Court denied his petition for permission

to appeal. Bivings filed his objections to the Magistrate’s recommendations on June 7,

2007, well within the one-year limitation period.4 Finally “[t]hough we cannot say

[Bivings] will prevail on any of [the claims he seeks to add], we are equally unable to say

the amendments he proposes are so likely to affect the outcome that they would be futile.”



   3
    The Pennsylvania Supreme Court denied Bivings’ direct appeal on April 26, 2005,
and he would have had 90 days to petition the United States Supreme Court for a writ of
certiorari, so the statute began to run on July 25, 2005.
   4
    Given the timeliness of the motion to amend, there is no need for the claims in
petitioner’s amended petition to “relate back” to those of his original petition. C.f. United
States v. Pittman, 209 F.3d 314, 317 (4th Cir. 2000) (discussing and applying relation
back rule).

                                              7
Riley v. Taylor, 62 F.3d 86, 91 (3d Cir. 1995). Accordingly, we conclude that the District

Court erred by denying the petition with prejudice without affording Bivings an

opportunity to amend.

       Appellees assert that this result will effectively give petitioners “two bites at the

apple,” allowing them to delay bringing all of their claims until after a report and

recommendation a magistrate has issued. We are unpersuaded. First, Foman itself

involved a Rule 59(e) motion to alter or amend the judgment. Given Foman, it follows a

fortiori that a request to amend a complaint following a magistrate’s report and

recommendation should not be denied on the basis of unreasonable delay. Second, any

concern in regard to delay is outweighed by our interest in rendering decisions on the

merits, rather than on the basis of “mere technicalities.” Foman, 371 U.S. at 181. The

policy behind Rule 15 and the principles of Foman require that a timely request to amend

be granted, even if that request could have been brought at an earlier date. See Riley, 62

F.3d at 91.

       The fact that Bivings did not present the District Court with a document labeled

“Motion to Amend” does not defeat his claim. We construe pro se filings liberally, and

hold them “to less stringent standards than formal pleadings drafted by lawyers,” Haines

v. Kerner, 404 U.S. 519, 520 (1972). See also United States v. Miller, 197 F.3d 644 (3d

Cir. 1999) (discussing the “time-honored practice of construing pro se plaintiffs’

pleadings liberally.”) Bivings’ objections to the Magistrate’s report and recommendation



                                              8
made clear his desire to amend his petition to include the claims he had previously

exhausted in state court, and he there specifically identified those claims. We are

convinced that this was sufficient to put the court and all parties on notice of his request

to amend his petition. See Calderon v. Kansas Dept. of Soc. and Rehab. Serv., 181 F.3d

1180 (10th Cir. 1999) (failure to file a formal motion is not always fatal, particularly

where there is readily apparent notice to opposing parties and to the court of the desire to

amend and the particular basis for amendment); Balistreri v. Pacifica Police Dept., 901

F.2d 696, 701 (9th Cir. 1990) (the fact that request to amend was not presented in a

separate formal motion is not a bar).

                                        IV. Conclusion

       We conclude that the District Court erred in not granting Bivings leave to amend.

We will reverse and remand with instructions to the District Court to grant the application

for leave to amend his petition to add the two claims identified in our certificate of

appealability and to conduct further proceedings on those claims.




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