DAVID W. CHRISTEL, Magistrate Judge.
The District Court has referred this action to United States Magistrate Judge David W. Christel. Petitioner Nicholas Hacheney, through court-appointed counsel Jeffrey E. Ellis, filed his federal habeas Petition ("Petition"), pursuant to 28 U.S.C. § 2254, seeking relief from a state court conviction. Dkt. 1. Presently pending before the Court is Petitioner's Motion for Leave to Amend Habeas Petition ("Motion"). Dkt. 35.
On July 16, 2015, Petitioner filed his Petition raising six grounds for relief. See Dkt. 1. After review of the Petition, the Court concluded Petitioner's fifth ground for relief ("Ground 5") raised a Brady violation, which had not been exhausted. See Dkt. 34. On May 11, 2016, the Court ordered Petitioner to show cause why Ground 5 should not be denied based on a failure to exhaust and procedural default. Dkt. 34. On May 23, 2016, Petitioner filed the Motion, which the Court interprets as a response to the Order to Show Cause, stating he intended to raise Ground 5 as a Confrontation Clause violation. Dkt. 35. He now seeks leave to amend his Petition to clearly assert a Confrontation Clause violation. Id. Petitioner states Respondent has no objection to the request to amend. Id. at p. 4.
A habeas petition may be amended as provided by Rule 15 of the Federal Rules of Civil Procedure. Mayle v. Felix, 545 U.S. 644, 649 (2005). Pursuant to Rule 15(a),
The time for filing an amended petition as a matter of course has expired. To amend his Petition, Plaintiff must have Respondent's written consent or the Court's leave. See Fed.R.Civ.P. 15(a)(2). Respondent has not provided written consent; however, Petitioner states Respondent does not object to the request to amend his Petition. Dkt. 35. Regardless of written permission from Respondent, the Court finds justice requires Petitioner be allowed to amend his Petition.
Petitioner asserts he intended to raise Ground 5 as a Confrontation Clause violation, which is how he raised this ground in the state courts. Dkt. 35. He contends he inadvertently framed his claim in a manner that could be construed as a Brady claim. Id. at p. 4. The Court finds Respondent will not be prejudiced by allowing Petitioner to amend his Petition to clearly allege a Confrontation Clause violation in Ground 5, in part, because Respondent initially interpreted Ground 5 to be a Confrontation Clause violation. See Dkt. 20. After review of the record, the Court finds the interests of justice require Petitioner be given leave to amend.
Accordingly, Petitioner's Motion is granted as follows:
If Petitioner does not file an amended petition by June 17, 2016, this Court will proceed on the original Petition.