Ellawendy v. Monterey County Superior Court

Background

Abdelfatah Ellawendy, a state parolee proceeding without a lawyer, filed a petition under 28 U.S.C. § 2254 challenging his 2019 state conviction from Monterey County. The conviction involved charges of stalking, several counts of assault, and dissuading a witness from testifying. Under a negotiated plea, Ellawendy pleaded no contest to one count of assault with a deadly weapon and agreed to serve no more than two years. The state trial court sentenced him to two years in state prison.

The court previously determined that the only claim it could consider was Ellawendy’s challenge to whether his plea was voluntary and dismissed his other claims. The respondent filed an answer on the merits on January 27, 2021. After briefing, the court denied Ellawendy permission to file an amended petition on May 9, 2022, and set a new deadline for his response, called a traverse, to the answer.

Requests Before the Court

Ellawendy filed a request for more time, stating that the respondent had not served him with the answer. He asked the court to order service and give him a reasonable period to review and answer it. The court found good cause and granted both requests.

Ellawendy also filed a document asking the court to reconsider its May 9 decision denying permission to amend. He argued that amendment was favored by public policy, that the proposed amendment related to the original petition and focused on facts concerning his allegedly involuntary plea, that he acted in good faith and for good cause, that he lacked access to court records for more than 12 months, and that he had not received or known about the respondent’s answer.

Reconsideration Ruling

The court explained that its local rules require a party to obtain permission before filing a reconsideration motion. The court treated Ellawendy’s filing as a request for that permission. Under the local rule, permission requires a showing such as a previously unknown material change in fact or law, newly discovered material facts or a change in controlling law, or a failure by the court to consider material facts previously presented.

Judge Beth Labson Freeman concluded that Ellawendy did not satisfy those requirements. The court had already declined to allow amendment because the case was at a late stage, determined that amendment would be futile because the proposed claims were unexhausted, and declined to consider a request to pause the case at that late stage. The court therefore denied leave to file a motion for reconsideration.

Disposition

The court granted Ellawendy’s request for the respondent to serve the answer. The respondent had to serve it within 14 days of the order and file proof of service. The court also granted Ellawendy’s request for more time to file his traverse, requiring it within 42 days after the respondent filed its notice of compliance. The order terminated Docket Nos. 26 and 27.