# Johnson v. United States

> District Court, N.D. Iowa · March 22, 2012 · 860 F. Supp. 2d 663

URL: https://www.frixlaw.com/law-library/cases/8698439

## Case

- **Full name:** Angela JOHNSON v. United States
- **Court:** District Court, N.D. Iowa
- **Decided:** March 22, 2012
- **Citations:** 860 F. Supp. 2d 663; 82 Fed. R. Serv. 3d 128; 2012 U.S. Dist. LEXIS 38752; 2012 WL 1836282
- **Precedential status:** Published
- **Opinion:** Opinion of the court by Bennett
- **Judges:** Bennett
- **Cited by:** 20 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/8698439

## How later opinions describe it (automated extraction)

- concluding that “the prosecution did not paint different pictures of the same defendant in different trials, but emphasized the conduct of the defendant on trial in each case in a way that was entirely reconcilable with the description of the conduct of the other defendant in …
- concluding that such an offer has “some bearing on the defendant’s character and, more specifically, on the defendant’s acceptance of responsibility for the charged offense”
- finding no relation back where the facts alleged in the original claim were not such that would put the opposition on notice of the issue in the “new claim”

## Opinion text

MEMORANDUM OPINION AND ORDER REGARDING PETITIONER’S MOTION UNDER 28 U.S.C. § 2255 TO VACATE, SET ASIDE, OR CORRECT FEDERAL CAPITAL CONVICTIONS AND DEATH SENTENCES
MARK W. BENNETT, District Judge.
TABLE OF CONTENTS
I. INTRODUCTION........................................................682
A. Factual Background .................................................682
B. Criminal Proceedings ................................................685
C. Section 2255 Proceedings .............................................688
D. Summary Of Claims..................................................692
II. VIABILITY OF “NEW” CLAIMS IN JOHNSON’S SECOND AND THIRD
AMENDED § 2255 MOTIONS...........................................697
A. “New” Claims In The Second Amended § 2255 Motion...................697
1. Arguments of the parties..........................................697
*677 a. The respondent’s argument....................................697
b. The petitioner’s argument.....................................697
c. The respondent’s reply ........................................699
2. Analysis.........................................................700
a. Deadlines for § 2255 claims....................................700
b. Timeliness of amendments.....................................706
i. Rule 15(a) ..............................................706
ii. Rule 15(b) ..............................................710
iii. Rule 15(c) and “relation back.”...........................713
c. Application of the standards...................................715
i. Preliminary matters.....................................715
ii. The challenged claims...................................716
B. The ‘New’ Claim In The Third Amended § 2255 Motion..................723
1. Arguments of the parties..........................................724
a. The petitioner’s argument.....................................724
b. The respondent’s argument....................................725
2. Analysis.........................................................726
a. Timeliness...................................................726
b. Futility......................................................728
c. Summary....................................................731
C. Summary Of Claims To Be Considered On The Merits...................732
III. STANDARDS APPLICABLE TO JOHNSON’S CLAIMS .....................736
A. Standards For § 2255 Relief...........................................736
1. Scope of the remedy...............................................736
2. Section 2255 relief in capital cases.................................738
3. Appellate review..................................................739
B. Ineffective Assistance Of Counsel......................................739
1. Ineffective assistance of trial counsel...............................740
a. Overview.....................................................740
b. Deficient performance.........................................740
i. Strategic choices........................................741
ii. Presumption of adequate representation...................742
iii. Role of ABA standards...................................742
c. Prejudice....................................................744
2. Ineffective assistance of appellate counsel..........................745
C. Cumulative Error....................................................745
1. Arguments of the parties..........................................746
a. The petitioner’s argument.....................................746
b. The respondent’s argument....................................748
c. The petitioner’s reply .........................................749
2. Cumulative effect of errors of counsel...............................749
a. Rejection in the Eighth Circuit................................751
b. Confiict with Supreme Court precedent.........................752
c. Cumulative error vs. multifaceted error.........................756
i. Strickland and multifaceted error.........................756
ii. Williams, Wiggins, and Porter............................758
iii. “Balkanized” review ....................................760
iv. Extent of multifaceted claims ............................762
3. Cumulative effect of other errors.................. 765
4. Cumulative error and unfairness of the trial........................767
5. The appropriate aggregations of allege d errors......................770
IV. ERRORS IN THE PRETRIAL PHASE....................................777
A. Claim 1: Failure To Pursue A Disposition For A Sentence Less Than Death.............................................................777
1. Deficient performance.............................................779
2. Prejudice........................................................783
a. Whether the petitioner was willing to plead guilty...............784
*678 b. Whether the prosecution would have accepted a factual proffer that the petitioner was willing to make........... .787
c. Whether the Attorney General would have accepted a plea 788
d. Whether the prosecution ever offered a plea agreement....... 789
3. Summary.................................................... 790
B. Claim 2: Failure To Preclude A Timely Death Notice.............. 791
C. Claim 3: Failure To Raise Pre-Trial Meritorious Motions, Objections, And Arguments .................................... 792
V. ERRORS IN THE JURY SELECTION PHASE........................ 793
A. Claim 4: Counsel’s Failure To Investigate And Voir Dire Juror No. 55 Adequately................................................. 794
B. Claim 5: Juror No. 55’s Misconduct............................... 796
C. Claim 6: Errors Relating To Voir Dire On Pentecostal Religion And Women....................................................... 798
D. Claim 7: Failure To Raise Timely Motions And Objections......... 800
VI. ERRORS IN THE MERITS PHASE.................................. .801
A. Claims Relating To Demeanor And Competence.................... .801
1. Factual background......................................... .801
2. Errors of counsel involving demeanor and competence.......... .803
a. Claim 8: Failure to address the effect of medication........ .803
i. Arguments of the parties............................ .803
ii. Analysis........................................... .804
b. Claim 9: Failure to seek a competency hearing............. .809
3. Claim 10: Trial while incompetent............................ .812
B. Claims 11 through 16: Counsel’s Errors Relating To Investigation And Presentation Of A Merits Phase Defense.................... .813
VII. ERRORS IN THE MITIGATION PHASE ............................. 816
A. Counsel’s Errors In Confronting Aggravating Evidence............. 816
1. Applicable standards ........................................ 816
2. Claim 18: Failure to challenge the prosecution’s theory for DeGeus’s murder.......................................... .818
a. Arguments of the parties ................................. 818
b. Analysis................................................ 820
3. Claims 19, 20, and 21: Failure to confront the prosecution’s arguments that Johnson was “worse” than Honken........... 820
a. Arguments of the parties ................................. 821
b. Analysis................................................ 823
i. Admissions by the prosecutor........................ 823
ii. Other evidence that Honken was “worse” than Johnson......................................... 836
4. Claim 22: Failure to confront evidence of Johnson’s threatening manner................................................... 838
a. Arguments of the parties ................................. 839
b. Analysis................................................ 840
5. Untimely allegations of error................................. 841
6. Aggregate prejudice........................................... 842
B. Prosecutorial Misconduct......................................... 843
1. Claim 26: Failure to correct false testimony about Honken...... 843
a. Arguments of the parties .................................. 844
b. Analysis................................................ 845
2. Claim 27: Brady violation.................................... 848
a. The undisclosed evidence................................. 848
b. Arguments of the parties ................................. 850
c. Analysis................................................ 851
3. Claim 28: Inconsistent argument violation ..................... 859
a. Disclaimer and procedural default ........................ 860
*679 i. Arguments of the parties............................. 860
ii. Analysis............................................ 860
b. The merits............................................... 861
i. Arguments of the parties............................. 861
ii. Analysis............................................ 862
4. Cumulative prejudice from the prosecutor’s misconduct.......... 865
C. Counsel’s Errors Involving The Mitigation Evidence Presented...... 865
1. Claims 29, 30, and 31: Poorly chosen mitigation witnesses....... 865
a. The witnesses at issue .................................... 865
b. Arguments of the parties .................................. 866
c. Analysis................................................. 867
2. Claim 32: Flawed use of the psychiatric pharmacologist......... 868
a. Arguments of the parties .................................. 868
b. Analysis................................................. 870
3. Claim 33: Untimely allegation of error regarding formulation of mitigating factors .......................................... 873
4. Aggregate prejudice........................................... 876
D. Counsel’s Errors In Investigating, Preparing, And Presenting Mitigation Evidence ........................................... 877
1. Errors relating to Johnson’s mental state at the time of the offenses.................................................... 877
a. Applicable standards...................................... 877
b. Claim 34: Failure to investigate and present evidence of Johnson’s mental state at the time of the offenses.......... 881
i. Arguments of the parties............................. 881
ii. Analysis............................................ 884
c. Claim 35: Errors relating to Dr. Gelbort.................... 891
i. Arguments of the parties............................. 891
ii. Analysis............................................ 893
d. Claim 37: Errors in failing to offer expert and lay testimony about Honken’s influence over Johnson................... 894
i. Arguments of the parties............................. 894
ii. Analysis............................................ 896
2. Claim 38: Errors relating to statement s of Phyllis Proscovec .... 898
3. Claim 41: Failure to introduce Johnson’s offer to plead guilty .... 898
a. Arguments of the parties .................................. 899
b. Analysis................................................. 900
4. Claims 36, 39, 40, 42, and 43: Untimely allegations of error....... 905
5. Claim 44: Unbriefed allegation of error concerning failure to prepare mitigation evidence from lay witnesses............... 907
6. Aggregate prejudice........................................... 908
E. Claim 45: Counsel’s Errors In Failing To Object To The Mitigation . Phase Determination And Evident Juror Confusion............... 908
VIII. ERRORS IN THE POST-TRIAL PHASE.............................. 909
IX. ERRORS ON APPEAL............................................... 909
X. EIGHTH AMENDMENT VIOLATIONS................................ 910
A. Cognizability In § 2255 Proceedings............................... 910
B. Claims Not Cognizable Under § 2255............................... 911
C. Cognizable Claims ............................................... 912
XI. SUMMARY OF CLAIM DISPOSITION................................. 913
XII. CONCLUSION 919
*680 Angela Johnson seeks habeas relief from her 2005 federal convictions for five murders in furtherance of a continuing criminal enterprise (CCE murder), 1 resulting in four death sentences and one life sentence. On June 21, 2005, following a lengthy trial, a jury imposed these sentences for the brutal murders of two adults and two children on July 25, 1993, and for the murder of Johnson’s ex-love interest, in a separate incident, on November 5, 1993. By the time Johnson went to trial, her separately tried co-defendant, Dustin Honken, had already been convicted as the “principal” on the same charges and sentenced to death for the killings of the children and life imprisonment for the killings of the adults. Even though Johnson was tried as an “aider and abettor,” ironically, she received the death penalty not only for the killings of the two children, as Honken had, but also for the killings of two of the adults, and life imprisonment for the killing of the third adult. I affirmed both Honken’s and Johnson’s convictions and death sentences in lengthy rulings on their post-trial motions. 2
Johnson now seeks post-conviction relief in a 176-page Second Amended Motion Under 28 U.S.C. § 2255 (Civ. docket no. 263) (§ 2255 Motion), asserting 63 grounds for relief, and a proffered Third Amended Motion Under 28 U.S.C. § 2255 (Civ. docket no. 339), asserting a sixty-fourth ground for relief. I initially limited post-hearing briefing on her claims to 100 pages, although I later waived the page limitation, so Johnson eventually filed a post-hearing brief on the merits of her § 2255 Motion consisting of some 209 pages of argument in which she chose to brief 29 grounds for relief, without waiving or abandoning any others. The grounds that Johnson chose to emphasize in her post-hearing brief include the following: her attorneys’ failure to pursue a disposition for a sentence less than death before trial; her attorneys’ failure to adjust her medications or otherwise address the effects of her medication on her demeanor and competence during the merits phase of her trial; her attorneys’ failure to confront aggravating evidence, or to prepare and present an effective mitigation case, and prosecutorial misconduct during the penalty phase of her trial; and a claim that the Bureau of Prisons’ method of carrying out her execution would violate the Fifth and Eighth Amendments to the United States Constitution, the Administrative Procedures Act, and the Controlled Substances Act.
This federal habeas proceeding nearly rivaled the complexity of Johnson’s trial. It involved 18 days of evidence, in four different phases, spanning most of 2011. Fifty-nine witnesses testified and thousands of pages of exhibits were admitted, followed by hundreds of pages of briefing and a full day of oral arguments. Although I find shockingly numerous and disturbing constitutional deficiencies in the performance of Johnson’s alarmingly dysfunctional trial team, 3 the most imposing decisions for me are whether Johnson suf *681 fered any constitutional prejudice or demonstrated any other grounds for relief from either her convictions or death sentences.
The Assistant United States Attorney who single-handedly represented the United States in this habeas proceeding and was lead counsel in both the Honken and Johnson trial prosecutions has throughout these more than decade-long proceedings represented the Department of Justice with unsurpassed skill, determination, unparalleled hard work, zealousness, civility, and professionalism. If there is a Medal of Honor for AUSAs for service to the DOJ and the nation, it should surely be given and worn proudly by Northern District of Iowa AUSA C.J. Williams. Johnson’s current habeas team was, unfortunately, the second one appointed. The first was removed for ethical reasons shortly before the scheduled hearing was to begin. This second team undertook the representation of Johnson literally at the eleventh hour and was forced to get up to speed on a case that literally had been abandoned by the first team. Indeed, I filed my first ethics complaint in my judicial career against the lead out-of-state lawyer on the first habeas team. The second team, like AUSA Williams, responded with unsurpassed skill, determination, unparalleled hard work, zealousness, civility, and professionalism. Their service to their client under extraordinarily difficult time pressures was remarkable and exemplified the highest calling of the capital defense bar and the legal profession. They, too, earned my unyielding respect and admiration. Lead counsel for the second habeas team was Michael Burt in San Francisco, California, who was ably assisted by Marcia A. Morrissey in Santa Monica, California, with additional support from Mohammed Ali Hamoudi and Nancy S. Pemberton, both in San Francisco, California.
I am sure that most who come across this decision will now simply skip to the table at the end of this lengthy opinion that summarizes my disposition of each of Johnson’s claims for § 2255 relief — if they have not already done so. I cannot blame them, because I have found the process agonizing and the results disturbing. Nevertheless, I hope that those who do follow me step-by-step through all of the analysis that leads me to my often painful *682 conclusions will understand those conclusions, even if they do not agree with them.
I. INTRODUCTION
A. Factual Background
The factual and procedural background to Johnson’s convictions has been set forth in considerable detail, not only by this court, see United States v. Johnson, 403 F.Supp.2d 721 (N.D.Iowa 2005), but by the Eighth Circuit Court of Appeals, see United States v. Johnson, 495 F.3d 951, 957-60 (8th Cir.2007), cert. denied, 555 U.S. 828 , 129 S.Ct. 32 , 172 L.Ed.2d 46 (2008). 4 A *684 much more succinct recitation is appropriate here, where the focus is not on the evidence leading to Johnson’s conviction, but on the conduct of her trial counsel, the prosecution, and others before and during her trial. I will recount below any additional factual background specific to each of Johnson’s grounds for § 2255 relief in my legal analysis.
The five persons murdered by Honken and Johnson in 1993 were Greg Nicholson, one of Honken’s drug dealers; Lori Duncan, with whom Nicholson had taken up residence just a short time before; Lori Duncan’s two daughters, Kandi (age 10) and Amber (age 6); and Terry DeGeus, another of Honken’s drug dealers and Johnson’s ex-boyfriend in what had been a stormy and physically abusive relationship. Nicholson and DeGeus were killed after Dustin Honken was indicted on drug charges, because Honken and Johnson feared that they had or might cooperate with law enforcement officers. Lori, Kandi, and Amber Duncan simply had the misfortune to be at home when Honken and Johnson came looking for Nicholson.
Somewhat more specifically, in April of 1993, Honken was indicted on drug-trafficking charges. Honken and Johnson, who was by then Honken’s girlfriend and pregnant with his daughter, became concerned that Greg Nicholson had or would cooperate with law enforcement officers. Therefore, they made several attempts to find Nicholson, who had suddenly changed residences. They eventually discovered that Nicholson was living with Lori Duncan. On or about July 25, 1993, Johnson gained entry to the Duncans’ house by a ruse, and Honken arrived a short time later. Johnson had acquired a gun for Honken some time earlier. There is conflicting evidence on whether Johnson initially had the gun, produced it after gaining entry to the house, and used it to hold Nicholson and the Duncans until Honken arrived, or whether Honken had the gun when he arrived. The evidence at trial showed that, at least initially, Honken and Johnson used threats to the Duncans to extort a videotaped statement from Nicholson exonerating Honken of any drug-trafficking activity. However, Nicholson and the Duncans were eventually removed from the house at gunpoint and driven into the country in a ear that Johnson had borrowed from her babysitter. There, the adults were bound, gagged, and tortured, and all four victims were shot to death by Honken. Honken and Johnson then buried these four victims in a single shallow grave. In a separate episode, on or about November 5, 1993, approximately seven days after a grand jury had questioned Johnson about DeGeus’s involvement in Honken’s drug-trafficking activities, Johnson lured DeGeus to a meeting with Honk-en in a secluded location, where Honken shot him several times, then beat him with a baseball bat before he died. DeGeus was buried in another shallow grave a few miles from the burial site of Nicholson and the Duncans.
Although law enforcement suspected Honken and Johnson in the disappearances of these five people, the victim’s bodies were not discovered at that time, and the 1993 drug charges against Honken were dropped. Honken was indicted again in 1996 on other federal drug charges, pleaded guilty to some of those charges in 1997, and commenced serving a long sentence, which I imposed on February 25, 1998. See Case No. CR 96-3004-MWB *685 (N.D. Iowa) (docket no. 183); see also id. (docket no. 219) (amended judgment dated February 1, 2000).
B. Criminal Proceedings
On July 26, 2000, years after the disappearances of Nicholson, the Duncans, and DeGeus, Johnson was charged with seven non-capital crimes relating to their murders, even though their bodies still had not been found. On August 2, 2000, a very experienced federal criminal defense attorney from Cedar Rapids, Iowa, was appointed to represent Johnson. That attorney did not have any capital case experience, however. 5 Unbeknownst to me, *686 this attorney became Johnson’s self-proclaimed “lead counsel” after I appointed additional attorneys to represent Johnson. Therefore, I will refer to this attorney in this ruling as Lead Counsel. Another attorney, from Waterloo, Iowa, was appointed as co-counsel, but was later removed from the case, because of a potential conflict of interest arising from his prior representation of a possible witness against Johnson. Lead Counsel continued to represent Johnson through her indictment and trial on the capital charges against her.
While Johnson was incarcerated after her arrest on those charges, she became acquainted with a jailhouse informant, Robert McNeese. Despite specific warnings from Lead Counsel not to talk to McNeese, because McNeese had informed on one of Lead Counsel’s prior clients, Johnson did talk to McNeese. McNeese convinced Johnson that he could get someone already serving a life sentence to confess to the killings, if she could give him information that would provide a credible basis for the false confession. Johnson provided McNeese with a map showing the locations where the five murder victims were buried and other information about the murders. McNeese turned the map and the other information over to law enforcement officers, and the bodies were *687 recovered in October and November 2000. When Johnson heard the news that the first set of bodies had been recovered, she attempted to commit suicide.
After recovery of the bodies made the death penalty a real possibility in Johnson’s case, but before capital charges were actually filed, I consulted the Federal Public Defender for the Northern and Southern Districts of Iowa, pursuant to 18 U.S.C. § 3005 , concerning a recommendation for the appointment of counsel with the necessary qualifications to act as counsel “learned in the law applicable to capital cases....” See 18 U.S.C. § 3005 . On December 12, 2000, pursuant to 18 U.S.C. § 3005 , and upon the recommendation of the Federal Public Defender and my determination that he was exceptionally well-qualified, I appointed an attorney from Kansas City, Missouri, to serve as “learned” co-counsel for Johnson in this case along with Lead Counsel and Waterloo co-counsel. I will refer to that attorney in this ruling as Learned Counsel. Eventually, on March 12, 2001, at the request of Johnson’s counsel, and after Waterloo counsel withdrew, I appointed another attorney from Des Moines, Iowa, as additional co-counsel. I will refer to that attorney in this ruling as Co-Counsel. I determined that an attorney with Co-Counsel’s experience with the Sentencing Commission and his reputation for brief writing and appellate work would round out the skills of Johnson’s defense team.
Honken and Johnson were eventually indicted in 2001, in separate indictments, on five capital charges of “conspiracy murder,” that is, murder while engaging in a drug-trafficking conspiracy, and five capital charges of “CCE murder,” that is, murder while working in furtherance of a continuing criminal enterprise (CCE), in violation of 21 U.S.C. § 848 (e)(1)(A) and 18 U.S.C. § 2 . They were tried separately, with Honken’s trial first in the late summer of 2004. Honken was convicted on all counts on October 14, 2004, and, on October 27, 2004, the jury made a binding recommendation that he be sentenced to death for the murders of the two children, with life imprisonment for the murders of the adults. In part because Honken had already been convicted as a “principal” in the murders, the prosecution elected to go to trial against Johnson only on the theory that she “aided and abetted” the killings. The prosecution also dismissed the non-capital counts against Johnson, from the 2000 indictment, prior to her trial.
Jury selection in Johnson’s case took fifteen days in April and May 2005, and her trial eventually began on May 4, 2005. Although I had suppressed McNeese’s evidence, the Eighth Circuit Court of Appeals reversed that ruling, and Johnson’s confession to McNeese and the maps that she gave him were presented at trial, as well as her alleged confessions to other jailhouse informants and to a close friend, and copious other evidence of her involvement in the crimes. After ten days of evidence and a day of deliberations in the merits phase of her trial, the jury found Johnson guilty of all ten capital counts on May 24, 2005. In the eligibility phase, which began and ended on May 31, 2005, the jury returned a verdict finding Johnson “eligible” for the death penalty on all ten capital counts. The penalty or mitigation phase began on May 31, 2005, immediately after the eligibility phase verdict, and involved another six days of evidence and a hiatus before closing arguments. The jury began its deliberations on the penalty phase verdict on June 20, 2005, and returned a verdict on June 21, 2005, finding that Johnson should be sentenced to death for the murders of the two Duncan children, their mother, Lori Duncan, and Johnson’s ex-boyfriend, Terry DeGeus, but that Johnson should be sentenced to life imprisonment for the murder of Greg Nicholson. *688 Thus, Johnson, the “aider and abettor,” received death sentences for four of the murders, including the murders of the two children, while Honken, the “principal,” received death sentences only for the murders of the two children.
I denied Johnson’s post-trial motions on December 16, 2005. See United States v. Johnson, 408 F.Supp.2d 721 (N.D.Iowa 2005). Johnson continued to be represented on her direct appeal by Co-Counsel and Learned Counsel, but Lead Counsel did not participate further in the case. On July 30, 2007, the Eighth Circuit Court of Appeals affirmed Johnson’s convictions for “CCE murder,” but remanded the case to me to vacate Johnson’s multiplicitous convictions and sentences for “conspiracy murder.” See United States v. Johnson, 495 F.3d 951, 980-81 (8th Cir.2007). The United States Supreme Court denied Johnson’s petition for a writ of certiorari on October 6, 2008, see Johnson v. United States, 555 U.S. 828 , 129 S.Ct. 32 , 172 L.Ed.2d 46 (2008), and denied her petition for rehearing on December 8, 2008, see Johnson v. United States, 555 U.S. 1081 , 129 S.Ct. 756 , 172 L.Ed.2d 747 (2008). On June 11, 2009, I vacated Johnson’s five convictions and sentences for “conspiracy murder” as multiplicitous of her convictions and sentences for “CCE murder,” pursuant to the September 28, 2007, Mandate from the Eighth Circuit Court of Appeals.
C. Section 2255 Proceedings
On August 8, 2008, even before Johnson’s petition for writ of certiorari on her convictions had been denied, Johnson filed a Motion For Appointment Of Counsel To Pursue PosNConviction Remedies (Crim. docket no. 745) in her criminal case. I granted that motion on August 11, 2008, by appointing two attorneys to represent Johnson in her § 2255 proceedings. See Order (Crim. docket no. 749). Thus, Johnson had the assistance of counsel for more than a year before the deadline to file her anticipated § 2255 motion. On August 14, 2009, I also entered a Scheduling Order (Crim. docket no. 807) that set primary and back-up hearing dates on the anticipated § 2255 motion for May 3, 2010, and July 12, 2010, respectively.
On October 5, 2009, Johnson filed her original Motion Under 28 U.S.C. § 2255 To Vacate, Set Aside, Or Correct Sentence By A Person In Federal Custody (Original § 2255 Motion) (Civ. docket no. 1), through appointed counsel. On October 29, 2009, I entered an Initial Review Order (Civ. docket no. 7) that required the respondent to file a response to Johnson’s § 2255 Motion by November 30, 2009, and the respondent did so. See Resistance To Plaintiffs Motion Under 28 U.S.C. § 2255 (Civ. docket no. 15). On January 12, 2010, Johnson, who was by then assisted by four attorneys, filed an Amended Motion Under 28 U.S.C. § 2255 To Vacate, Set Aside, Or Correct Sentence By A Person In Federal Custody (Civ. docket no. 23), and on January 21, 2010, Johnson filed a Corrected, Amended Motion Under 28 U.S.C. § 2255 To Vacate, Set Aside, Or Correct Sentence By A Person In Federal Custody (Corrected Amended § 2255 Motion) (Civ. docket no. 26). This prolix version of Johnson’s § 2255 motion asserted more than a dozen claims of ineffective assistance of trial counsel, two claims of prosecutorial misconduct, one claim of juror misconduct, and five other constitutional challenges to Johnson’s conviction or execution. The respondent filed an Amended Resistance To Plaintiffs Corrected, Amended Motion Under 28 U.S.C. § 2255 (Civ. docket no. 27) on February 4, 2010. By Order (Civ. docket no. 28), dated February 11, 2010, I reiterated the primary and back-up evidentiary hearing dates of May 3, 2010, and July 12, 2010. Those hearing dates were eventually reset more than once.
*689 On September 7, 2010, after the evidentiary hearing had been reset for October 4, 2010, I found it necessary to relieve Johnson’s lead § 2255 counsel of that role, to appoint new lead counsel, and to continue the evidentiary hearing yet again to March 7, 2011, to allow new lead counsel reasonable time to prepare. See Order Regarding Rescheduling Of Evidentiary Hearing And Withdrawal Of Lead Counsel (Civ. docket no. 67). Eventually, Johnson’s entire first team of § 2255 attorneys was replaced by her present team of four attorneys.
There were numerous bumps in the road, concerning budgeting, timing, and subpoenaing of witnesses, before Johnson’s § 2255 motion came on for evidentiary hearing. On January 17, 2011, I entered an Order (Civ. docket no. 106) modifying the prior Scheduling Orders to set the evidentiary hearing in two parts, the first to begin on March 7, 2011, to run for seven consecutive days, and the second to begin on June 13, 2011, to run through June 21, 2011, including the weekend, if necessary, to accommodate scheduling of mental health testing, preparation and exchange of expert reports, and presentation of all of the anticipated evidence.
Part I of the evidentiary hearing began on March 7, 2011, -with Johnson personally present, and continued for eight days, with testimony from numerous fact witnesses, including Johnson’s three trial attorneys, and submission of voluminous exhibits. At the conclusion of Part I on March 15, 2011, it became apparent that the scheduled hearing days in June would not be sufficient to submit all of the remaining evidence anticipated. Therefore, by Order (Civ. docket no. 198) entered March 18, 2011, I rescheduled Part II of the hearing for May 2, 2011, to run for six days, with what would be Part III to begin on June 13, 2011, and run through June 21, 2011.
Part II of the evidentiary hearing began on May 2, 2011, again with Johnson personally present, and concluded on May 5, 2011, earlier than anticipated, probably in large part because I denied most of Johnson’s numerous requests for subpoenas for witnesses. Nevertheless, Part II of the hearing involved the testimony of twelve witnesses for Johnson, including prosecutors involved in plea negotiations, one of Dustin Honken’s trial attorneys, certain fact witnesses, and the continuation of testimony by one of Johnson’s trial attorneys. The respondent also presented brief testimony from the ease agent assigned to the case. Numerous exhibits were also submitted by Johnson and by the respondent.
As anticipated at the conclusion of Part II of the evidentiary hearing, on June 1, 2011, Johnson filed a further amendment of her § 2255 Motion, her Second Amended Motion Under 28 U.S.C. § 2255 To Vacate, Set Aside, Or Correct Sentence By A Person In Federal Custody (Second Amended § 2255 Motion) (Civ. docket no. 263). The Second Amended § 2255 Motion clarified some claims, divided other portions of claims into separate claims, and added additional claims of ineffective assistance of appellate counsel. After I pointed out during Part III of the evidentiary hearing that there were discrepancies between the table of contents to the Second Amended § 2255 Motion and the pages on which claims were actually presented in the body of the Motion, Johnson filed a Corrected Table Of Contents For Second Amended Motion Under 28 U.S.C. § 2255 To Vacate, Set Aside, Or Correct Sentence By A Person In Federal Custody (Civ. docket no. 274) on June 14, 2011.
Part III of the evidentiary hearing began on June 13, 2011, also with Johnson personally present, and ended on June 17, 2011. Although I had anticipated that this part of the hearing would involve primari *690 ly, if not exclusively, testimony of mental health experts, the evidence presented was rather broader in scope. Specifically, over four and a half hearing days, Johnson presented the testimony of the three mental health experts who testified on her behalf at trial as well as the testimony of one mental health expert consulted by her trial team, but not used at trial; three mental health experts hired by her § 2255 team; an expert on the legal literature regarding handwriting analysis; a Strickland expert; and a presenter of a lecture on mental health issues in capital cases from a death penalty seminar attended by one of Johnson’s trial attorneys. The respondent presented the testimony of one of Johnson’s treating psychiatrists from the Bureau of Prisons. Of course, voluminous exhibits accompanied the testimony of these witnesses. In an Order (Civ. docket no. 280), filed after the conclusion of Part III, I noted that, on June 17, 2011, Johnson had made on the record what I found was a knowing and voluntary waiver of her physical presence at Part IV of the evidentiary hearing and at the subsequent oral arguments on the merits of her § 2255 Motion, set for October 24, 2011. Therefore, I directed the United States Marshal to provide for Johnson’s return to the Bureau of Prisons facility in which she had been incarcerated, or to such other facility as the Bureau of Prisons determined was appropriate. Johnson did not appeal’ personally at any of the further proceedings on her § 2255 Motion.
Before Part III of the evidentiary hearing, after Johnson made some additional revelations to one of her § 2255 mental health experts, it became clear that the respondent’s mental health expert should be allowed to conduct a further interview of Johnson and to prepare a supplemental report before he testified. Therefore, I set Part IV of the evidentiary hearing for two days beginning August 11, 2011, to receive the testimony of the respondent’s mental health expert. However, Part IV was subsequently reset for August 9, 2011, owing to an unanticipated scheduling conflict. See Order (Civ. docket no. 290).
Although I had established a longer post-hearing briefing schedule before Part III of the evidentiary hearing, see Order (Civ. docket no. 255), it appeared to me at the conclusion of Part III that a shorter briefing schedule and shorter, more focused briefs would be appropriate in this case. Therefore, after some discussion with the parties concerning briefing deadlines and the issues on which I was particularly interested in receiving briefing, I entered an Order (Civ. docket no. 279) on June 17, 2011, setting a briefing schedule to be completed by October 21, 2011, limiting the petitioner’s and the respondent’s opening briefs to 100 pages each, limiting the petitioner’s reply brief to 50 pages, and setting oral arguments on the merits of Johnson’s § 2255 Motion for October, 24, 2011.
Owing to scheduling conflicts, the respondent was given an extension to and including July 8, 2011, to file a resistance to Johnson’s Second Amended § 2255 Motion, but actually filed its Amended Answer To Petitioner’s Second Amended Motion To Vacate, Set Aside, Or Correct Conviction And Sentence Pursuant To 28 U.S.C. § 2255 (Amended Answer To Second Amended § 2255 Motion) (Civ. docket no. 285) on July 5, 2011, before that deadline. As I had authorized during Part III of the evidentiary hearing, the respondent limited this Answer to disputing whether certain of Johnson’s claims in her Second Amended § 2255 Motion related back to claims raised in her Original § 2255 Motion. By Order (Civ. docket no. 286), filed July 5, 2011, I found that the threshold question of whether certain claims related back and, thus, should be resolved on the merits, warranted separate briefing. *691 Therefore, I set deadlines and page limits for such separate briefing. On August 19, 2011, Johnson filed her Reply To Government’s Amended Answer (Civ. docket no. 309) , responding to the respondent’s contentions that certain claims did not relate back. The respondent filed a Response To Petitioner’s Reply To The Government’s Amended Answer (Civ. docket no. 310) on August 26, 2011.
As I reviewed petitioner’s claims after Part III of the evidentiary hearing, I found her claim identification, tied to headings in the various versions of her § 2255 Motion, to be cumbersome and confusing, and the order in which the claims were asserted to be haphazard. Consequently, I reorganized Johnson’s claims for § 2255 relief by phases of her trial, rather than in the order in which her § 2255 counsel presented them, and renumbered them consecutively. While my reorganization may be as idiosyncractic as Johnson’s, it at least has the advantage of addressing her claims in chronological order, thus more clearly defining what phase or phases of the trial are affected, if relief on one or more claims is appropriate. By Order (Civ. docket no. 287), filed July 6, 2011, I directed the parties to use the claim numbers that I had assigned in all further briefing, as indicated in a Claim Chart. That Claim Chart showed the petitioner’s claims as I have renumbered them, then as identified in the table of contents to her Second Amended § 2255 Motion (Civ. docket no. 263). In that Claim Chart, I simplified Johnson’s statements of her claims and inserted some summary “leaders” for claims that I had grouped together by topic (e.g., “Juror No. 55,” “Demean- or and competence,” “Investigation and presentation”).
On July 12, 2011, also after further review of Johnson’s Second Amended § 2255 Motion and prior versions of her motion, I entered another Order (Civ. docket no. 291), inviting the parties to address in their “merits” briefs the effect of the petitioner’s apparent disclaimer of Claim 28 in the earlier version of her § 2255 Motion.
Part IV of the evidentiary hearing began and ended on August 9, 2011. As anticipated, the only witness in that part of the evidentiary hearing was the respondent’s mental health expert, who had also been retained for Johnson’s trial, but not used, and who had subsequently examined her in relation to the § 2255 proceedings.
At the conclusion of Part IV, I revisited the question of whether or not page limits were appropriate for the parties’ “merits” briefs. I concluded that they were not, particularly because this was a capital habeas case. I did, however, indicate that there were certain claims on which I desired briefing and other claims on which I felt I did not need or want briefing, although I left the parties free to brief any issues they chose.
On September 2, 2011, Johnson filed her Corrected Post Hearing Briefing In Support Of Second Amended Motion Under 28 U.S.C. § 2255 To Vacate, Set Aside, Or Correct Sentence By A Person In Federal Custody, And Request To File Additional Briefing (Corrected Post-Hearing Brief) (Civ. docket no. 314). This brief included 209 pages of argument on 29 of her 63 claims. By Order (Civ. docket no. 315), filed September 6, 2011, I denied Johnson’s request for additional briefing, to which, ironically, she had dedicated all 5 pages of the “Introduction” to her Corrected Post-Hearing Brief. On October 3, 2011, the respondent filed its Post-Hearing Brief In Resistance To Petitioner’s Motion Under 28 U.S.C. § 2255 (Post-Hearing Resistance Brief) (Civ. docket no. 325), consisting of 146 pages of argument. Johnson filed a Reply (Civ. docket no. 340) on October 21, 2011, consisting of 176 pages of argument.
*692 Also on October 21, 2011, Johnson filed another Motion To Amend Second Amended Motion Under 28 U.S.C. § 2255 To Vacate, Set Aside, Or Correct Sentence By A Person In Federal Custody Pursuant To Federal Rule Of Civil Procedure 15(a)(2) And (c) And Local Rule 15 (Civ. docket no. 339). In that motion, Johnson sought leave to file a Third Amended § 2255 Motion to add an additional claim that she was constitutionally entitled to an instruction that the “reasonable doubt” standard governed the jurors’ decision about whether aggravating factors sufficiently outweighed mitigating factors to warrant imposition of the death penalty, and that her trial and appellate counsel were ineffective in failing to raise this claim, relying on the August 3, 2011, decision of the Sixth Circuit Court of Appeals in United States v. Gabrion, 648 F.3d 307, 325 (6th Cir.2011). Because I was aware that counsel for the respondent had been involved in an evidentiary hearing on the § 2255 Motion filed by Johnson’s co-defendant, Dustin Honk-en, shortly before the respondent’s response to Johnson’s motion to amend was due, I sua sponte extended the respondent’s deadline to respond to that motion until November 18, 2011, so that the respondent could be fully heard on the matter. The respondent filed its Resistance To Petitioner’s Motion To Amend, For The Third Time, Her Motion To Vacate, Set Aside, Or Correct Conviction And Sentence Pursuant To 28 U.S.C. § 2255 (Civ. docket no. 366) on November 14, 2011, ahead of the deadline.
I heard oral arguments on the merits of Johnson’s § 2255 Motion, as amended, on October 24, 2011. As with all of the other proceedings in this case, Johnson’s “new” § 2255 team and counsel for the respondent performed with consummate ability, zeal, and professionalism. Thus, the oral arguments provided invaluable observations about the merits of Johnson’s claims. At the conclusion of the oral arguments, I found that only one issue required further briefing, the law applicable to “cumulative error” in the Eighth Circuit. Therefore, I set deadlines for briefing on that issue. Johnson filed her Brief On Cumulative Error In The Eighth Circuit (Civ. docket no. 345) on November 7, 2011; the respondent filed its Brief On Cumulative Error In The Eighth Circuit (Civ. docket no. 367) on November 15, 2011; and Johnson filed her Reply To Government’s Brief On Cumulative Error In The Eighth Circuit (Civ. docket no. 368) on December 1, 2011.
In short, the evidentiary hearing on Johnson’s § 2255 Motion involved four “phases” and 18 days of evidence, testimony of 58 witnesses, and submission of many thousands of pages of documentary evidence, and it concluded, on day 19, with six hours of oral arguments on the merits of Johnson’s claims for § 2255 relief. All briefs have now been filed, and this matter is now fully submitted.
D. Summary Of Claims
As indicated above, Johnson makes 63 claims for post-conviction relief in her Second Amended § 2255 Motion (Civ. docket no. 263), including claims based on ineffective assistance of counsel, prosecutorial misconduct, juror misconduct, and other claims that her conviction or execution would violate the Eighth Amendment to the United States Constitution. She has asserted a sixty-fourth claim for relief in a proffered Third Amended § 2255 Motion (Civ. docket no. 339). However, she chose to brief only 29 of those claims in her Corrected Post-Hearing Brief (Civ. docket no. 314). The attached Claim Chart shows Johnson’s claims as I have renumbered them, then as identified in the table of contents to her Second Amended § 2255 Motion. As also indicated above, I have simplified Johnson’s statements of her claims and inserted some summary “leaders” for claims that I have grouped togeth *693 er (e.g., “Juror No. 55,” “Demeanor and competence,” “Investigation and presentation”). Although I reorganized the 63 claims in the Second Amended § 2255 Motion into chronological order, at least by phases of the trial, the sixty-fourth claim, in the proffered Third Amended § 2255 Motion, is a mitigation phase claim. Therefore, Claim 64 has been interpolated after Claim 46 as the “last” claim concerning the mitigation phase. Claims that were ultimately briefed in Johnson’s Corrected Post-Hearing Brief are shown in bold.
_GROUNDS FOR JUDGMENT OF ACQUITTAL OR NEW TRIAL_ _PRETRIAL PHASE_
Court’s Claim Petitioner’s Claim (Claims in bold were briefed) No._Claim No._,_
1. One, § A Failure to pursue a disposition for a sentence of less _than death_
2. One, § B Failure to proceed to trial at a time that would have precluded the government from filing a timely notice of _intent to seek the death penalty__
3. One, § DD.a-c, f Failure to timely and effectively make a number of meritorious motions, objections, and arguments
_JURY SELECTION_
Court’s Claim Petitioner’s Claim (Claims in bold were briefed) No._Claim No._
_4_One, § C.l Juror No. 55: Ineffective voir dire_
_5,_Six_Juror No. 55: Misconduct by Juror_
6. One, § C.2 Failure to structure voir dire to identify jurors with _prejudicial views on Pentecostal religion and women
7. One, § DD.e, g Failure.to timely and effectively (a) re-urge Johnson’s motion for change of venue and (b) object to the manner in which peremptory challenges were allocated
_MERITS PHASE_
Court’s Claim Petitioner’s Claim (Claims in bold were briefed) _No,_Claim No._
8. One, § D Demeanor and competence: Failure to reduce petitioner’s medication or to address the effects of the medication on (a) her demeanor at trial and (b) her ability to participate in her own defense, in _violation of her right to due process and a fair trial
9. One, § E Demeanor and competence: Failure to seek a _competency hearing_
10. Five Demeanor and competence: Petitioner was tried while incompetent, in violation of the Fifth, Sixth, and Eighth _Amendments, to the United States Constitution_
11. One, §§ F and Investigation and presentation: Failure to investigate H.l Robert McNeese or to impeach him with the court’s _findings regarding his credibility at the Massiah hearing
12. One, §§ F and Investigation and presentation: Failure to investigate _H2_and effectively examine Christie Gaubatz_
13. One, § T Investigation and presentation: Failure to effectively _ cross-examine Wendy Jensen_
14. One, §§ F and I Investigation and presentation: Failure to present evidence of Terry DeGeus’s involvement in the killing of _Gregory Nicholson and the Duncans_
15. One, § F Investigation and presentation: Failure to use a forensic expert or to investigate Phyllis Proscovee, the gun shop _owner, an after-acquired evidence theory, or an alibi
*694 16. One, § G Investigation and presentation: Presentation of a “mere presence” defense without investigation and despite petitioner’s repeated assertions that she was not present at _the Nicholson/Duncan killings_
17. One, § JJ, Seven Cumulative errors render the petitioner’s conviction _constitutionally infirm_
MITIGATION PHASE_
Court’s Claim Petitioner’s Claim (Claims in bold were briefed) No,_Claim No._
18. One, § J Confrontation of aggravating evidence: Failure to present evidence of battered woman’s syndrome to explain the relationship between petitioner and Terry DeGeus to rebut the prosecution’s theory of her _motive for killing him_
19. One, § M Confrontation of aggravating evidence: Failure to present readily available evidence about Dustin Honken to refute the prosecution’s argument that _Angela Johnson was “worse” than Honken_
20. One, § N Confrontation of aggravating evidence: Failure to use the prosecution’s arguments at Dustin Honken’s trial as party admissions to rebut the government’s _evidence that petitioner was “worse” than Honken
21. One, § P Confrontation of aggravating evidence: Failure to discover and present information regarding Dustin Honken’s plans to kill prosecutor Reinert and his family and Honken’s membership in a white _supremacist prison organization_
22. One, § Q Confrontation of aggravating evidence: Failure to address aggravating evidence at the merits and _mitigation phases of the trial_
23. One, § R Confrontation of aggravating evidence: Failure to limit future dangerousness evidence to future danger _in prison_
24. One, § S Confrontation of aggravating evidence: Failure to object to Kathy Rick’s triple hearsay testimony about _petitioner’s alleged possession of a gun_
25. One, § U Confrontation of aggravating evidence: Failure to object to Kyla Davis’s testimony that petitioner tried _to find out where she lived and what car she drove
26. Two Prosecutorial misconduct: The prosecution’s failure to correct false testimony at Angela Johnson’s trial violated the Fifth and Eighth Amendments to the _United States Constitution_
27. Three Prosecutorial misconduct: The prosecution’s violation of Brady v. Maryland by failing to disclose Dustin Honken’s planned violent attack on the trial prosecutor and his association with a white _supremacist prison organization_
28. Four Prosecutorial misconduct: The prosecution’s violation of the petitioner’s rights under the Sixth and Eighth Amendments and the Due Process Clause by presenting inconsistent arguments at her trial and _that of her co-defendant_
29. One, § BB.l Ineffective mitigation: The testimony of Holly Dirksen
*695 30. One, § BB.2 Ineffective mitigation: The testimony of Douglas _Book_
31. One, § BB.3 Ineffective mitigation: The testimony of Susan _Marsolek_
32. One, § CC Ineffective mitigation: Failure to provide psychiatric pharmacologist Roswell Lee Evans with data regarding petitioner’s drug history, rendering his expert _testimony virtually irrelevant_
33. One, § EE Ineffective mitigation: Use of multi-faceted, overly-complicated yet incomplete mitigating factors for the jury to weigh rather than simple, straight-forward _facts that encompassed all of the mitigation_
34. One, § K Failure to prepare mitigation: Failure to investigate and present evidence regarding Angela Johnson’s _mental state at the time of the offenses_
35. One, § Y Failure to prepare mitigation: Delay in hiring Dr. Gelbort, and failure to follow-up on his recommendations, to instruct him to conduct a more thorough battery of neuropsychological tests, to retain another neuropsychologist when Dr. Gelbort inexplicably refused to testily, to incorporate his helpful findings and diagnosis into the testimony of the experts who did testily, and to conduct additional neuropsycholog_ical and neuroimaging testing of petitioner_
36. One, § Z Failure to prepare mitigation: Failure to introduce evidence of, and give the trial experts records concerning, the 1996 diagnosis of petitioner with depres_sion and dependent personality features_
37. One, § O Failure to prepare mitigation: Failure to offer expert and lay testimony that Angela Johnson was under the _substantial influence of Dustin Honken_
38. One, § L.l Failure to prepare mitigation: Failure to introduce the statements of Phyllis Proscovec to support _residual doubt_
39. One, § L.2 Failure to prepare mitigation: Failure to offer Dustin Honken’s letters to impeach the mitigation phase testimony of Steven Vest to support residual _doubt_
40. One, § L.3 Failure to prepare mitigation: Failure to impeach Steven Vest by presenting evidence that Honken lied about petitioner’s role in the offenses to support _residual doubt_
41. One, § V Failure to prepare mitigation: Failure to introduce petitioner’s offer to plead guilty as evidence in _mitigation_
42. One, § W Failure to prepare mitigation: Failure to present _evidence of remorse through expert testimony_
43. One, § X Failure to prepare mitigation: Failure to elicit evidence of the effect of petitioner’s execution on her _family members_
44. One, § AA Failure to prepare mitigation: Ineffective presentation _of mitigation evidence through the lay witnesses_
45. One, § DD.h-i Failure to timely and effectively object to the mitigation phase determination and confusion evident from the jury’s findings
*696 46. One, § JJ, Seven Cumulative errors render the petitioner’s sentence con_stitutionally infirm_
64. (3rd § 2255 Petitioner was constitutionally entitled to have her pen-Motion) Twelve alty jury instructed that the reasonable doubt standard governed their decision whether aggravating factors sufficiently outweighed mitigating factors and to the extent that this claim cannot now be considered because trial or appellate counsel should have raised the claim, they were _constitutionally ineffective for failing to do so_
POST-TRIAL AND APPEAL
Court’s Claim Petitioner’s Claim (Claims in bold were briefed) No,_Claim No,_
47. One, § DD.d Ineffective post-trial motions: Failure to timely and effectively make a number of meritorious arguments in _post-trial motions_
48. One, § FF.2 Ineffective post-trial motions: Failure to raise Juror No. _55’s failure to honestly answer questions on voir dire
49. One, § GG Ineffective appeal: Failure to raise all components of the _misconduct by Juror No. 55_
50. One, § HH Ineffective appeal: Failure to litigate the prosecution’s inconsistent theories as to Dustin Honken and Angela _Johnson_
51. One, § II Ineffective appeal: Failure to raise the unconstitutional _skewing effect of multiplicitous counts_
52. One, § DD.j-o Ineffective appeal: Failure to raise a number of _meritorious arguments_
53. One, § JJ, Seven Ineffective appeal: Cumulative errors of appellate counsel render the petitioner’s sentence constitutionally _infirm_
_EIGHTH AMENDMENT VIOLATIONS_
Court’s Claim Petitioner’s Claim (Claims in bold were briefed) No._Claim No. _
54. Eight The Eighth Amendment requires a heightened standard _of proof for imposition of the death penalty_
55. Nine Petitioner suffers from severe mental illness and the _Eighth Amendment precludes her execution_
56. Ten The Bureau of Prisons’ method of carrying out the petitioner’s execution by lethal injection violates the Fifth and Eighth Amendments, the Administrative _Procedure Act, and the Controlled Substances Act
_57._Ten, § A.1 Baze claim: Executioner incompetence_
_58,_Ten, § A.2 Baze claim: Drug administration deficiencies_
_59,_Ten, § A.3 Baze claim: Lack of safeguards_
60. Ten, § B There are readily available alternatives that would substantially reduce the risks of maladministration and in__humane executions_
61. Ten, § C Whether the BOP’s new protocol is constitutional even under Baze cannot be answered without further discov_ery _
62. Ten, § D The Baze decision does not have any impact on petitioner’s Administrative Procedures Act and Controlled Sub_stances Act Claims_
_63,_Eleven_The death penalty violates the Eighth Amendment_
*697
II. VIABILITY OF “NEW” CLAIMS IN JOHNSON’S SECOND AND THIRD AMENDED § 2255 MOTIONS
The respondent asserts that 21 of Johnson’s claims in her Second Amended § 2255 Motion — 20 claims of ineffective assistance of counsel and 1 claim of prosecutorial misconduct — are new, do not “relate back,” and, consequently, are time-barred. Johnson also seeks leave to add yet another claim in a Third Amended § 2255 Motion, which the respondent also argues should be barred. Thus, before I consider the merits of any of Johnson’s claims for § 2255 relief, I must determine whether or not all of her claims in her Second Amended § 2255 Motion “relate back” to the filing of her original § 2255 Motion or are otherwise deemed timely and whether or not her Third Amended § 2255 Motion should be allowed.
A. “New” Claims In The Second Amended § 2255 Motion
1. Arguments of the parties
a. The respondent’s argument
In its Amended Answer To Second Amended § 2255 Motion (Civ. docket no. 285), the respondent argues that § 2255 contains a one-year statute of limitations that, on its face, bars those portions of Johnson’s Second Amended § 2255 Motion that advance new claims for relief, as opposed to a clarification or actual supplementation of an existing claim. The respondent argues that Johnson’s Second Amended § 2255 Motion was filed well after the expiration of the applicable one-year limitations period on October 6, 2009, so that any new claims that do not “relate back” to claims raised in her original § 2255 motion are barred. The respondent argues that 21 claims in Johnson’s Second Amended § 2255 Motion do not relate back, because they are based on entirely novel premises, do not merely clarify, amplify, or expand any timely claims, and are not grounded in facts or legal arguments made in her Original § 2255 Motion. The respondent points out that the Supreme Court has warned that expansive interpretations of a petitioner’s pleadings would eviscerate the statute of limitations for § 2255 claims, thereby permitting virtually any amendment without regard to the statute of limitations. The respondent also argues that Johnson has made no attempt to show that extraordinary circumstances beyond her control prevented her from raising the 21 challenged claims earlier in these proceedings.
b. The petitioner’s argument
In her Reply To Government’s Amended Answer (Civ. docket no. 309), Johnson contends that the respondent myopically focuses not on the substance of her claims, but on whether, under Rule 15(c) of the Federal Rules of Civil Procedure, the 21 challenged claims can “relate back” to her Corrected Amended § 2255 Motion (Civ. docket no. 26), filed by predecessor § 2255 counsel. 6 Even if the proper focus is on what Johnson calls “procedural niceties,” she argues that the “relation back doctrine” is just one procedural rule that I must consider. She argues that Rules 8, 15, and 54(c) of the Federal Rules of Civil Procedure are also relevant to her novel set of circumstances and that the policies behind those rules favor considering on the merits the claims that respondent challenges as untimely.
More specifically, she contends that neither the letter nor the spirit of Rule 8, which requires only a short and plain statement of a claim, requires the court to concentrate on whether predecessor counsel spelled out each of the 21 challenged *698 claims with the specificity that the respondent now demands. She argues that the respondent’s complaints about lack of specificity of the prior pleading ring hollow, where the respondent did not bring a Rule 12(e) motion for a more definite statement. She also argues that the prior pleading asserted that her broadly-stated claims “include those stated as well as others to be developed following further investigation, discovery, access to this Court’s subpoena power, and an evidentiary hearing.” Corrected Amended § 2255 Motion at 86. She also contends that the parties agreed that any expansion of the record, as provided in Habeas Rule 7, 7 should occur at the evidentiary hearing. Johnson asserts that both parties took this stipulation to mean that she would be permitted to amend her pleading at the close of evidence to conform to proof at the hearing, subject to any objections by the respondent. She contends that these facts show that the purposes of Rules 8 and 12 were served in this case.
Next, she argues that Rule 15(a) permitted her to amend her pleadings once, as a matter of course, within 21 days after serving it, and with leave of court thereafter, so that her Corrected Amended § 2255 Motion, filed January 21, 2010, with leave of court, was an amendment as of right. She contends that, in that motion, she requested that, at the end of the hearing, she be permitted “to include any additional claims or allegations not presently known to her or her counsel, which are identified or uncovered in the course of discovery, investigation, and litigation of this Motion, and, to allow the amendment to relate back to the date of the filing of this motion.” Id. at 123-124. She contends that the respondent’s lack of objection to this request means that her present claims are timely. Johnson also argues that she did not file her Second Amended § 2255 Motion until June 1, 2011, because she was permitted to do so by the court and that, prior to that ruling, the actions and statements of the respondent led her to believe that she would be allowed to amend at the conclusion of the evidentiary hearing. She also contends that allowing the “new” claims in her Second Amended § 2255 Motion comports with “equitable tolling.” Johnson contends, next, that deeming her amended claims timely comports with the policy under Rule 15(b) to liberally allow amendments to assert claims presented during the evidentiary hearing, where there is no surprise to the opposing party. She contends that all of the claims that the respondent challenges were certainly subsumed within the context of the case.
Johnson also argues that her claims necessarily “relate back,” pursuant to Rule 15(c), because they were filed within the statutory time period set forth in 28 U.S.C. § 2255 (f)(4), where the facts supporting at least one of those claims could not have been discovered through the exercise of due diligence at an earlier date. In other words, she contends that different claims may have different “triggering” dates for the running of the statute of limitations, but the deadline for her § 2255 motion is the latest of the triggering dates for the various claims presented. She argues that her Second Amended § 2255 Motion, filed on June 1, 2011, is still within the statutory time period for her “new” Brady claim, Claim 27 (Petitioner’s Claim Three) because that claim was not discovered, and could not have been discovered, until the respondent turned over exculpatory internal governmental memoranda to her present habeas counsel on March 5, 2011. She contends that the “triggering” date for this claim, pursuant to § 2255(f)(4), is March 5, *699 2011, so that it is timely. She argues, further, that, applying the proper meaning of § 2255(f), because this one claim is timely under the “latest” triggering date, the statute of limitations does not run for her entire petition until a year after March 5, 2011. Therefore, she contends that there is no need to address the “relation back doctrine” of Rule 15(c).
Finally, she argues that, if “relation back” is relevant, the government’s “cramped” interpretation of the “relation back doctrine” under Rule 15(c) is at odds with the liberal thrust of the Federal Rules of Civil Procedure and Rule 15(c) in particular. She contends that her Corrected Amended § 2255 Motion contained some fairly broad and open-ended ineffective assistance of counsel claims and a broad Brady claim that the prosecution suppressed exculpatory evidence, then added that facts supporting these claims would be fully developed. She contends that her broad claims in the Corrected Amended § 2255 Motion are tied to the same core of operative facts underlying the 21 claims in her Second Amended § 2255 Motion challenged by the respondent.
c. The respondent’s reply
In its Response To Petitioner’s Reply To The Government’s Amended Answer (Civ. docket no. 310), filed August 26, 2011, the respondent points out that Johnson devoted most of her Reply (Civ. docket no. 309) to arguing that the “relation back doctrine” should not apply, then one paragraph asserting that the 20-page limit on her brief prevented her from providing a “claim-by-claim” explanation of why her new claims do “relate back.” The respondent asserts that my direction for separate briefing of the “relation back” issue required precisely the claim-by-claim analysis that Johnson did not provide. Nevertheless, the respondent states that its Response is directed to Johnson’s arguments that the “relation back doctrine” should not apply.
The respondent argues that Rule 8 and the concept of “notice pleading” do not apply to habeas motions, which are instead governed by Habeas Rule 2, because that rule requires the petitioner to set forth all of the grounds for relief and state the specific facts supporting each ground. The respondent also asserts that no reasonable attorney could have understood the actions of the court or any “stipulation” in this case to authorize Johnson to file new claims almost two years after the expiration of the statute of limitations, and nothing in the transcript excerpts cited by Johnson demonstrates any such understanding. The respondent argues, next, that Rule 15(a) may permit equitable tolling of a claim that has not yet been discovered, and Rule 15(b) may allow amendment where the opposing party has fair notice of the new claim, but this court has recognized that Rule 15 only applies to a § 2255 motion made before the expiration of the one-year statute of limitations, while an untimely amendment must “relate back.” The respondent argues that an amendment that adds additional facts only relates back if the proposed amendment does not seek to add a new claim or to insert a new theory into the case. Thus, the respondent contends that it has not waived any objection to untimely claims and that the untimely claims are not authorized by applicable law. The respondent also argues that there is, at best, a split among the Circuit Courts of Appeals as to whether an entire § 2255 motion is timely, if one “new” claim is timely, and the Eighth Circuit Court of Appeals has never so held. Finally, the respondent argues that broad, non-specific claims in the Original § 2255 Motion cannot provide the basis for “relation back” in the face of the specificity requirement of Habeas Rule 2, nor was Rule 15(c) intended to be so *700 broad as to allow an entirely new claim based on a different set of facts.
2. Analysis
a. Deadlines for § 2255 claims
As the Eighth Circuit Court of Appeals has explained, “The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) imposed, among other things, a one-year statute of limitations on motions by prisoners seeking to modify, vacate or correct their federal sentences.” AnjuloLopez v. United States, 541 F.3d 814, 817 (8th Cir.2008) (citing Johnson v. United States, 544 U.S. 295, 299 , 125 S.Ct. 1571 , 161 L.Ed.2d 542 (2005)); see also Dodd v. United States, 614 F.3d 512, 515 (8th Cir. 2010) (“Postconviction motions for relief must be filed within one year from the date that the judgment becomes final.” (citing 28 U.S.C. § 2255 (f))). As numerous courts have recognized, “Congress’s overriding purpose in enacting AEDPA [was] ‘ “to achieve finality in criminal cases, both federal and state.” ’ ” Murphy v. United States, 634 F.3d 1303, 1309 (11th Cir.2011) (quoting Jones v. United States, 304 F.3d 1035,1039 (11th Cir.2002) (per curiam), in turn quoting Brackett v. United States, 270 F.3d 60, 69 (1st Cir.2001)); Matus-Leva v. United States, 287 F.3d 758, 761 (9th Cir.) (rejecting resort to coram nobis by a petitioner who failed to meet AEDPA’s gatekeeping requirements, because “[t]o hold otherwise would circumvent the AEDPA’s overall purpose of expediting the presentation of claims in federal court and enable prisoners to bypass the limitations and successive petitions provisions.”), cert. denied, 537 U.S. 1022 , 123 S.Ct. 544 , 154 L.Ed.2d 431 (2002). Thus, courts “give ‘strict interpretation’ to the one-year statute of limitations to avoid ‘ “creating] a loophole which is contrary to the legislative intent of insuring a greater degree of finality.” ’ ” Id. (again quoting Jones, 304 F.3d at 1039 , in turn quoting Brackett, 270 F.3d at 69 ); see also White v. Dingle, 616 F.3d 844, 847 (8th Cir.2010) (concluding that allowing a state prisoner’s federal habeas claims to relate back to the date of an original petition that was dismissed without prejudice “risks ‘eviscerat[ing] the AEDPA limitations period [under § 2244(d)(1), which mirrors § 2255(f) ] and thwart[ing] one of AEDPA’s principal purposes,’ which was to expedite federal habeas review” (quoting Graham v. Johnson, 168 F.3d 762, 780 (5th Cir.1999))).
In the case of federal prisoners, the AEDPA imposes this one-year statute of limitations in § 2255(f), which provides as follows:
(f) A 1-year period of limitation shall apply to a motion under this section. The limitation period shall run from the latest of—
(1) the date on which the judgment of conviction becomes final;
(2) the date on which the impediment to making a motion created by governmental action in violation of the Constitution or laws of the United States is removed, if the movant was prevented from making a motion by such governmental action;
(3) the date on which the right asserted was initially recognized by the Supreme Court, if that right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or
(4) the date on which the facts supporting the claim or claims presented could have been discovered through the exercise of due diligence.
28 U.S.C. § 2255 (f). As Johnson contends, there are four different “triggers” for the running of the one-year period in § 2255(f). Only two such “triggers,” the ones in § 2255(f)(1) and (f)(4), are at issue here.
*701 As to the “final judgment” trigger in § 2255(f)(1), Johnson’s conviction became final on October 6, 2008, when the Supreme Court denied her petition for certiorari. Crim. docket no. 257. Thus, the one-year deadline for her § 2255 motion, pursuant to § 2255(f)(1), expired on October 6, 2009. See 28 U.S.C. § 2255 (f)(1). Johnson’s Second Amended § 2255 Motion, which was only filed on June 1, 2011, was filed well after the expiration of this one-year deadline. 8
Johnson argues, however, that' a different “trigger” is also applicable here, pursuant to § 2255(f)(4). Specifically, Johnson argues that the “discovery” trigger in § 2255(f)(4) applies, because she did not, and could not, through the exercise of due diligence, discover the challenged Brady claim (Claim 27; Petitioner’s Claim Three) until the respondent turned over exculpatory internal governmental memoranda to her present habeas counsel on March 5, 2011. She argues that the timeliness of this one claim, brought prior to March 5, 2012, also makes all of the other claims in her Second Amended § 2255 Motion timely, although she acknowledges that only one Circuit Court of Appeals has so held, citing Walker v. Crosby, 341 F.3d 1240, 1245, 1247 (11th Cir.2003). The respondent asserts that Walker stands alone, but does not confront Johnson’s contention that her “new” Brady claim was diligently discovered.
In 2003, in Walker , the Eleventh Circuit Court of Appeals considered the proper construction of 28 U.S.C. § 2244 (d)(1), which contains language analogous to § 2255(f), but for applications for federal writs of habeas corpus by persons in custody pursuant to the judgment of a state court. 9 The court concluded, first, that § 2244(d) “directs the court to look at *702 whether the ‘application’ is timely, not whether the individual ‘claims’ within the application are timely.” Walker, 341 F.3d at 1243 . Thus, the court reasoned, “[t]he statute provides a single statute of limitations, with a single filing date, to be applied to the application as a whole,” and that single deadline runs from the “latest of’ the triggering dates in the following subparagraphs. Id. The court then held, “The statute of limitations in § 2244(d)(1) applies to the application as a whole; individual claims within an application cannot be reviewed separately for timeliness.” Id. at 1245. In something of a concluding apologia, the court stated,
We recognize that § 2244(d)(1) as written allows for the resurrection of what seem to be time-barred claims tagging along on the coattails of a timely claim. Nevertheless, Congress wrote the statute, and we cannot see how it can be read any other way without departing from the plain meaning of the words of the statute. The Supreme Court has advised that “[w]hatever merits ... policy arguments may have, it is not the province of this Court to rewrite the statute to accommodate them.” Artuz [v. Bennett], 531 U.S. [4,] 10, 121 S.Ct. [361,] 365 [ 148 L.Ed.2d 213 (2000) ].
Walker, 341 F.3d at 1247 .
It is not just the “coattails” effect of Walker that has led other courts to reject the interpretation of § 2244(d) in Walker . In 2004, in Fielder v. Varner, 379 F.3d 113 (3d Cir.2004), the Third Circuit Court of Appeals rejected the interpretation of § 2244(d)(1) in Walker , as follows:
We do not agree with the interpretation advanced by Fielder and the Walker Court. Although Fielder and the Walker Court claim that this interpretation is dictated by the language of 28 U.S.C. § 2244 (d)(1), their interpretation (which, for convenience, we will simply call the Walker interpretation) actually disregards the language used in the portion of § 2244(d)(1) that is most critical for present purposes, i.e., subsection (D). Subsection (D), as noted, refers to “the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.” 28 U.S.C. § 2244 (d)(1)(D) (emphasis added). Applying this language in a case in which multiple claims are presented poses a problem, as Fielder’s case illustrates.
Fielder’s application, as noted, presented two claims, a prosecutorial misconduct claim and an after-discovered evidence claim. The factual predicate of the prosecutorial misconduct claim was presumably known to Fielder at the time of trial, but the factual predicate of the after-discovered evidence claim was not reasonably discoverable until years later. So which of these two dates should control?
If § 2244(d)(1) is applied, as we believe it must be, on a claim-by-claim basis, there is no problem, but if, as the Walker interpretation prescribes, the claim-by-claim approach is rejected, there is nothing in § 2244(d)(1) that provides a ground for picking one date over the other. The Walker interpretation implicitly reads subsection (D) as if it refers to “the latest date on which the factual predicate of any claim presented could have been discovered through the exercise of due diligence.” But that is not what subsection (D) says.
Although neither Fielder nor the Walker Court explains the ground for their implicit conclusion that subsection (D) requires a court to pick the latest date when the factual predicate of a claim was reasonably discoverable, it is possible that their analysis is based on the statement in § 2244(d)(1) that the application runs from “the latest of’ the *703 four dates specified in subsections (A) through (D). However, this reference to “the latest” date does not appear in subsection (D) and it does not pertain to the issue at hand. The reference to “the latest” date in § 2244(d)(1) tells a court how to choose from among the four dates specified in subsections (A) through (D) once those dates are identified. This language does not tell a court how to identify the date specified in subsection (D) in a case in which the application contains multiple claims. Accordingly, there is nothing in § 2244(d) that suggests that a court should follow the Walker interpretation and select the latest date on which the factual predicate of any claim presented in a multi-claim application could have reasonably been discovered. It would be just as consistent with the statutory language to pick the earliest date.
For these reasons, we believe that the Walker interpretation fails on its own terms. It purports to be based on the language of § 2244(d)(1) but actually neglects to pay close attention to the statutory language.
Fielder, 379 F.3d at 117-18 .
Looking beyond the language of the statute, the Third Circuit Court of Appeals found “two strong reasons for concluding that the statute of limitations set out in § 2244(d)(1) should be applied on a claim-by-claim basis.” Id. at 118. Those two reasons were that statutes of limitations are generally applied, in both civil and criminal cases, on a claim-by-claim or count-by-count basis, and there was no reason to suppose that Congress intended a departure from that scheme in § 2244(d)(1), just because the statute is, as is routinely the case, cast on the model of a single-claim case. Id. at 118-19. The Third Circuit Court of Appeals also reasoned that “a claim-by-claim approach is necessary in order to avoid results that [it] was confident Congress did not want to produce,” specifically, “the strange effect of permitting a late-accruing federal habeas claim to open the door for the assertion of other claims that had become time-barred years earlier.” Id. at 120. While the Third Circuit Court of Appeals could see a rationale for allowing a petitioner to assert the late-accruing claim, it could see no reason why time-barred claims should also thereby be resuscitated. Id.
The Walker analysis is also contrary to dicta observations of the Supreme Court concerning whether § 2255(d)(1) requires claim-by-claim analysis in a 2005 decision, Pace v. DiGuglielmo, 544 U.S. 408 , 125 S.Ct. 1807 , 161 L.Ed.2d 669 (2005). 10 In Pace , the petitioner argued that, “because § 2244(d)(2) refers to a ‘properly filed application,’ then any condition that must be applied on a claim-by-claim basis, such as Pennsylvania’s time limit, cannot be a ‘condition of filing.’ ” Pace, 544 U.S. at 415 , 125 S.Ct. 1807 (emphasis in the original). The Court noted that, while other sections of § 2244(d) were cast in terms of “the application,” specific requirements of those sections were not applicable to the application as a whole, but required inquiry into specific “claims.” See id. at 416-17 , 125 S.Ct. 1807 (citing subsections of § 2244(b)(2)). The Court then observed, in a footnote:
Similarly, § 2244(d)(1) provides that a “1-year period of limitation shall apply to an application for a writ of habeas corpus.” (Emphasis added.) The subsection then provides one means of calculating the limitation with regard to the “application” as a whole, § 2244(d)(1)(A) *704 (date of final judgment), but three others that require claim-by-claim consideration, § 2244(d)(1)(B) (governmental interference); § 2244(d)(1)(C) (new right made retroactive); § 2244(d)(1)(D) (new factual predicate).
Pace, 544 U.S. at 416 n. 6, 125 S.Ct. 1807 . In a subsequent decision addressing whether or not § 2244(d)(1)(B) contains an unwritten “diligence” requirement like the one in § 2244(d)(1)(D), the Eighth Circuit Court of Appeals cited Pace as “not[ing] that § 2244(d)(1)(B) ‘require[s] claim-by-claim consideration.’ ” Earl v. Fabian, 556 F.3d 717, 728 (8th Cir.2009) (citing Pace, 544 U.S. at 416 , 125 S.Ct. 1807 n. 6 ); see also Bachman v. Bagley, 487 F.3d 979 (6th Cir.2007) (post-Pace decision rejecting Walker , without mentioning Pace , and adhering to the Sixth Circuit rule that “courts determine the beginning of the one-year statute of limitations period based on the content of the prisoner’s claim,” rather than allowing a single timely claim to open the door to all other claims, and noting that, even under Walker , all of the petitioner’s claims were untimely). 11
In the context of analogous language in § 2255(f), I agree with the reasoning of the court in Fielder and the Supreme Court’s dicta in Pace that there is no reason to conclude that all claims in a § 2255 motion are somehow timely if one claim is timely under § 2255(f)(4). It is true that § 2255(f) states that the time for filing a § 2255 “motion” runs from “the latest of’ the four triggers, just as § 2244(d)(1) states that the time for filing “an application” runs from “the latest of’ four comparable triggers. See 28 U.S.C. § 2255 (f). It is also true that § 2255(f)(4) refers to “claim or claims,” so that it does recognize that a “motion” may involve more than one claim. Nevertheless, this language recognizes the possibility that multiple claims might arise from facts discovered at the same time, as well as the possibility that different claims might arise from facts discovered at different times. What it does not do is require that the time runs from the date that the last claim is discovered. Cf. Fielder, 379 F.3d at 117-18 . Conspicuous by its absence is any reference in § 2255(f)(4) to “the latest date on which the factual predicate of any claim presented could have been discovered through the exercise of due diligence.” 12 There is no “latest of’ language in § 2255(f)(4). The reference to “the latest” date is in § 2255(f). Cf. id. Plainly, the purpose of this language in § 2255(f) is to tell a court how to choose from among the four dates specified in subsections (1) through (4) once those dates are identified, but it does *705 not tell a court how to identify the date specified in subsection (4) in a case in which the application contains multiple claims. Cf. id.
Moreover, much as the Supreme Court in Pace read analogous language in § 2244(d)(1), I read some subsections of § 2255(f) as plainly stating some methods for calculating the limitations period with regard to the “motion” as a whole and some methods for calculating the limitations period that require claim-by-claim consideration, notwithstanding the reference to the limitations period for a “motion” pursuant to § 2255 in § 2255(f). Specifically, I read § 2255(f)(1), the “date of final judgment” trigger, as stating a method for calculating the limitations period with regard to the “motion” as a whole, just as the Supreme Court read analogous language in § 2244(d)(1)(A) to consider the “motion” as a whole. Cf. Pace, 544 U.S. at 416 n. 6, 125 S.Ct. 1807 . I also read § 2255(f)(3) (new right made retroactive) and § 2255(f)(4) (new factual predicate) as plainly stating means of calculating the limitations period that require claim-by-claim consideration. This is so, because § 2255(f)(3) (which is analogous to § 2244(d)(1)(C)) refers to a specific “right” newly recognized by the Supreme Court, and different § 2255 claims plainly can be (and are here) based on different “rights,” while § 2255(f)(4) (which is analogous to § 2244(d)(1)(D)) expressly refers to “claim or claims” based on newly-discovered factual predicates. Cf. Pace, 544 U.S. at 416 n. 6, 125 S.Ct. 1807 . Notwithstanding the Supreme Court’s dicta, however, I cannot read § 2255(f)(2) (which is analogous to § 2244(d)(1)(B)) as plainly requiring claim-by-claim consideration, because § 2255(f)(2) refers to governmental interference with the filing of “a motion,” not governmental interference with the filing of “a claim.”
I also agree with the court in Fielder that statutes of limitations are generally applied, in both civil and criminal cases, on a claim-by-claim or count-by-count basis, and that there was no reason to suppose that Congress intended a departure from that scheme in § 2255(f), just because the statute is, as is routinely the case, generally cast on the model of a single-claim case. Cf. id. at 118-19. Moreover, “the strange effect of permitting a late-accruing [§ 2255] claim to open the door for the assertion of other claims that had become time-barred years earlier,” cf. id. at 120, makes no sense in the context of a statutory scheme that otherwise dictates a one-year statute of limitations for the purpose of expediting federal habeas review and achieving finality in criminal cases, both federal and state. See, e.g., Murphy, 634 F.3d at 1309 ; White, 616 F.3d at 847 ; Jones, 304 F.3d at 1039 ; Matus-Leva, 287 F.3d at 761 ; Brackett, 270 F.3d at 69 ; Graham, 168 F.3d at 780 . The purposes of such a statutory scheme would be undermined if every petitioner could simply allege a “newly-discovered” claim to make all otherwise time-barred claims timely. It makes still less sense where § 2255 makes provision for legitimate second or successive motions based on “newly discovered evidence,” see 28 U.S.C. § 2255 (h), so that there is no need to “save” all claims until the last claim is discovered. The Walker court’s interpretation effectively eviscerates the one-year statute of limitations imposed by AEDPA and is contrary to the principle that the AEDPA statute of limitations should be given “strict interpretation” to avoid creating a loophole that is contrary to the legislative purpose of greater finality. Murphy, 634 F.3d at 1309 ; White, 616 F.3d at 847 .
Because I read § 2255(f) to require claim-by-claim consideration of timeliness, at least for § 2255(f)(4), the “trigger” that Johnson contends makes all of the “new” *706 claims in her Second Amended § 2255 Motion timely, different claims may have different “trigger” dates for the running of the statute of limitations under § 2255(f). Cf Pace, 544 U.S. at 416 n. 6, 125 S.Ct. 1807 . More specifically, for present purposes, Johnson’s “new” Brady claim has a different “trigger” date, pursuant to § 2255(f)(4), than the remainder of her claims, including the 20 “new” ineffective assistance of counsel claims that the respondent challenges as untimely. Again, the respondent has not expressly argued that the “new” Brady claim was not diligently discovered before the respondent produced the internal memoranda on which that claim is based on March 5, 2011, see 28 U.S.C. § 2255 (f)(4) (a newly-discovered claim is timely within one year of the date the facts supporting the claim could have been discovered through the exercise of due diligence); the respondent argues only that the “new” Brady claim does not “relate back,” which is not the question if the claim is timely pursuant to § 2255(f)(4). Thus, I will consider the “new” Brady claim timely filed, pursuant to § 2255(f)(4), because it was filed before March 5, 2012. Even so, the “new” Brady claim, even if timely pursuant to § 2255(f)(4), cannot make any otherwise time-barred claims timely, because § 2255(f)(4) requires claim-by-claim consideration. In other words, I find that § 2255(f)(4) claims have no “coattails” that can make otherwise time-barred claims timely, and, more specifically, the 20 ineffective assistance of counsel claims challenged by the respondent, filed well after the expiration of the applicable statute of limitations for those claims in § 2255(f)(1), are not timely, because they cannot ride on the “coattails” of the “new” Brady claim. The remaining question is whether these 20 claims can nevertheless be considered on their merits.
b. Timeliness of amendments
The question of whether the 20 “new” ineffective assistance of counsel claims, filed after the expiration of the applicable statute of limitations in § 2255(f)(1), can nevertheless be considered on their merits turns on whether those claims are proper amendments to Johnson’s Original § 2255 Motion. As the Eighth Circuit Court of Appeals has recognized, “The Federal Rules of Civil Procedure govern habeas proceedings unless superseded by the rules governing section 2254 or 2255 cases.” Barnett v. Roper, 541 F.3d 804, 807 (8th Cir.2008) (citing Feb.R.Civ.P. 81(a)(4)); see also Habeas Rule 12 (“The Federal Rules of Civil Procedure and the Federal Rules of Criminal Procedure, to the extent that they are not inconsistent with any statutory provisions or these rules, may be applied to a proceeding under these rules.”). The Eighth Circuit Court of Appeals has held that provisions of Rule 15 of the Federal Rules of Civil Procedure, which address amended and supplemental pleadings, apply to amendments to § 2255 motions. See United States v. Harrison, 469 F.3d 1216, 1217 (8th Cir.2006) (Rule 15(a)); Dodd v. United States, 614 F.3d 512, 515 (8th Cir.2010) (Rule 15(c)). Before turning to what the respondent asserts is the crux of the matter, the “relation back doctrine” of Rule 15(c), however, I must first consider Johnson’s contentions that other provisions of Rule 15 authorize consideration of her amended claims.
i. Rule 15(a). Johnson relies, first, on Rule 15(a), which provides as follows:
(a) Amendments Before Trial.
(1) Amending as a Matter of Course.
A party may amend its pleading once as a matter of course within:
(A) 21 days after serving it, or
(B) if the pleading is one to which a responsive pleading is required, 21 *707 days after service of a responsive pleading or 21 days after service of a motion under Rule 12(b), (e), or (f), whichever is earlier.
(2) Other Amendments. In all other cases, a party may amend its pleading only with the opposing party’s written consent or the court’s leave. The court should freely give leave when justice so requires.
(3) Time to Respond. Unless the court orders otherwise, any required response to an amended pleading must be made within the time remaining to respond to the original pleading or within 14 days after service of the amended pleading, whichever is later.
Fed.R.Civ.P. 15(a) (emphasis added). 13 Johnson does not argue that this provision of Rule 15 authorized or made timely the challenged claims in her Second Amended § 2255 Motion. Rather, she argues that this provision made timely her first amendments, and'those amendments gave notice of her intent to supplement her claims later.
Specifically, Johnson asserts that her first amendments to her Original § 2255 Motion, filed on January 12 and 21, 2010, were amendments as of right authorized by Rule 15(a)(2). 14 The gravamen of her argument on this point is that those first amendments expressly requested that, at the end of the evidentiary hearing, she would be allowed to amend her motion “to include any additional claims or allegations not presently known to her or her counsel, which are identified or uncovered in the course of discovery, investigation, and litigation of this Motion, and, to allow the amendment to relate back to the date of the filing of this motion.” Corrected Amended § 2255 Motion (Civ. docket no. 26) at 123-24; see also id. at 86 (alleging *708 that her claims “include those stated as well as others to be developed following further investigation, discovery, access to this Court’s subpoena power, and an evidentiary hearing”). She contends that the respondent never responded to this request. Similarly, she argues that she did not file her Second Amended § 2255 Motion (Civ. docket no. 263) until June 1, 2011, because she believed that she was permitted to do so by the court. She also argues that the parties agreed to expansion of the record pursuant to Habeas Rule 7 at the evidentiary hearing. Thus, she asserts that equitable tolling is appropriate, because she has diligently asserted her right to amend and the respondent has not previously objected. The respondent argues that no reasonable attorney could believe that a stipulation to expand the record was a stipulation to amend her motion to assert new claims. The respondent also argues that Rule 15(a) is inapplicable to amendments to a § 2255 motion made after the one-year statute of limitations has expired, so that the respondent was not required to respond to language attempting to expand Johnson’s right to add untimely claims.
The Eighth Circuit Court of Appeals addressed equitable tolling and waiver arguments similar to Johnson’s in United States v. Hernandez, 436 F.3d 851 (8th Cir.2006). As to equitable tolling, the court stated,
Hernandez next argues that the court erred by not granting equitable tolling. We review the decision to deny equitable tolling de novo. [United States v.] Martin, 408 F.3d [1089,] 1093 [ (8th Cir. 2005) ]. While equitable tolling does apply to § 2255 motions, see id. at 1092, we do not find that the circumstances here warrant such relief.
There are two tests for determining when equitable tolling is appropriate: (1) if there are “extraordinary circumstances” beyond a movant’s control that would keep him from filing in a timely fashion, see id. at 1093, or (2) if the government’s conduct “lulled” the movant into inaction through reliance on that conduct, see Maghee v. Ault, 410 F.3d 473, 476 (8th Cir.2005) (rejecting movant’s argument that the state court clerk’s actions “lulled” him into inaction). Equitable tolling only applies when the circumstances that cause the delay in filing are “ ‘external to the plaintiff and not attributable to his actions.’ ” Id. (quoting Flanders v. Graves, 299 F.3d 974, 971 [977] (8th Cir.2002)). Hernandez relies on the latter of the two tests, contending that the district court’s order allowing the filing of an amended claim by November 15, 2002, “lulled” him into inaction by causing him to believe he had until that date to file any and all claims, not just ones that related back to the original motion.
The court did not “lull” Hernandez into inaction. The order of the district court specifically stated that he had until November 15 to supplement his previous filings. This opportunity to supplement the original filings did not itself trigger a Rule 15(c)(2) analysis and the relation back doctrine because, on its face, it simply allowed Hernandez an opportunity to use his appointed counsel to further explain the issues raised in his pro se motion. Nothing in the order referred to the statute of limitations or to filing additional claims. We have held that “confusion about or miscalculations of the limitations period, or the failure to recognize the legal ramifications of actions taken in prior post-conviction proceedings are inadequate to warrant equitable tolling.” Shoemate v. Norris, 390 F.3d 595, 598 (8th Cir.2004) (internal marks omitted). There is no indication in this record that Hernandez could not have amended his motion prior to October 31, 2002, in order to bring forth new *709 claims within the statutorily allowed time frame. Aside from the one new allegation, it appears the motion and brief filed on November 12 did just what was called for in the district court’s order: supplement and explain the original filings. Whatever may have caused Hernandez to file a new claim past the statute of limitations period, they were not external to him. Based on the record, we do not find any action of the court that would have “lulled” Hernandez into inaction, and the district court’s denial of equitable tolling was not in error.
Hernandez, 436 F.3d at 858-59 .
Similarly, here, nothing in my actions “lulled” Johnson into believing that she could add “new” claims to her Second Amended § 2255 Motion, long after the expiration of the applicable statute of limitations. Although I allowed Johnson to supplement her Original § 2255 Motion, I did nothing to trigger a Rule 15(c)(2) “relation back” analysis. Cf id. That trigger did,not come until the respondent raised the issue in response to the Second Amended § 2255 Motion. Indeed, while Johnson clearly could not have filed any amendments to her § 2255 motion before the expiration of the statute of limitations, compare id., because she filed her Original § 2255 Motion just before expiration of the limitations period for her § 2255 motion, when she made that last-minute filing, she clearly had to contemplate the likelihood that any “new” claims in subsequent amendments would be challenged as untimely or as not “relating back.” Thus, Johnson was not “lulled” into any belief that she could add “new” claims long after the filing of her Original § 2255 Complaint at the statutory deadline.
In Hernandez , the Eighth Circuit Court of Appeals also addressed a “waiver” claim similar to Johnson’s. As the court explained,
The final claim raised by Hernandez is that the government waived the statute of limitations by not raising an objection to the November filing deadline. When determining if a party has waived his or her rights, we review the lower court’s factual findings under a clearly erroneous standard, but we review de novo the ultimate determination of whether a waiver occurred. United States v. Caldwell, 954 F.2d 496, 504 (8th Cir.1992), cert. denied, 506 U.S. 819 , 113 S.Ct. 65 , 121 L.Ed.2d 32 (1992). Hernandez’s argument is unpersuasive. “[T]here is an implied waiver of a defense or a right only where a party’s conduct is ‘so consistent with and indicative of an intention to relinquish [the right or defense] and so clear and unequivocal that no other reasonable explanation of the conduct is possible.’” Garfield v. J.C. Nichols Real Estate, 57 F.3d 662, 667 (8th Cir.) (quoting Medicare Glaser Corp. v. Guardian Photo, Inc., 936 F.2d 1016, 1021 (8th Cir.1991) (internal marks omitted)), cert. denied, 516 U.S. 944 , 116 S.Ct. 380 , 133 L.Ed.2d 303 (1995). Nothing in the district court’s order would have put the government on notice that the statute of limitations was or would be an issue, such that would have required it to take an affirmative action to ensure that the statute of limitations was not waived. As such, we find no error in the district court’s judgment that the government did not waive the statute of limitations.
Hernandez, 436 F.3d at 859 .
Here, nothing in the parties’ agreement to expand the record pursuant to Habeas Rule 7 could reasonably be understood to be an agreement to allow untimely claims or to be an express or implied waiver of objections to an amendment introducing untimely claims. See id. There is simply no indication of conduct consistent with and indicative of an intention to relinquish *710 the timeliness defense, let alone such clear and unequivocal support that no other reasonable explanation of the respondent’s conduct is possible. Id. This is so, because nothing in Habeas Rule 7 pertains to amendment at all or to the addition of any claims; rather, it pertains to submission to the record of additional materials relating to the motion. See Habeas Rule 7(a). Moreover, while Johnson contends that the parties agreed that any expansion of the record, as provided in Habeas Rule 7, should occur at the evidentiary hearing, she acknowledges that both parties took this stipulation to mean that she would be permitted to amend her pleading at the close of evidence to conform to proof at the hearing, subject to any objections by the respondent. The time for the respondent to challenge untimely claims was when they were presented and the respondent could reasonably determine whether they “relate back.” Similarly, nothing in the respondent’s failure to respond to an assertion that Johnson would supplement her pleadings to assert new claims after discovery and the evidentiary hearing can be reasonably understood to mean that the respondent was intentionally withholding any challenge to the timeliness of any “new” claims. See Hernandez, 436 F.3d at 859 .
In short, nothing in or related to Rule 15(a) makes Johnson’s “new” claims timely, even if they were filed with the court’s permission.
ii. Rule 15(b). Johnson also contends that her “new” ineffective assistance of counsel claims should be allowed as amendments to conform to proof within the meaning of Rule 15(b). Rule 15(b) provides as follows:
(b) Amendments During and After Trial.
(1) Based on an Objection at Trial.
If, at trial, a party objects that evidence is not within the issues raised in the pleadings, the court may permit the pleadings to be amended. The court should freely permit an amendment when doing so will aid in presenting the merits and the objecting party fails to satisfy the court that the evidence would prejudice that party’s action or defense on the merits. The court may grant a continuance to enable the objecting party to meet the evidence.
(2) For Issues Tried by Consent.
When an issue not raised by the pleadings is tried by the parties’ express or implied consent, it must be treated in all respects as if raised in the pleadings. A party may move — at any time, even after judgment — to amend the pleadings to conform them to the evidence and to raise an unpleaded issue. But failure to amend does not affect the result of the trial of that issue.
Fed.R.CivP. 15(b) (emphasis added). As the Eighth Circuit Court of Appeals has explained,
Amendments under Rule 15(b) are to be “liberally granted ‘where necessary to bring about the furtherance of justice and where the adverse party will not be prejudiced.’ ” Mouser v. Caterpillar, Inc., 336 F.3d 656, 666 (8th Cir.2003) (quoting McLaurin v. F.C. Prater, 30 F.3d 982, 985 (8th Cir.1994)). The decision to permit or deny an amendment “remains within the discretion of the district court.” Id.
American Fed. of State, County and Municipal Employees v. City of Benton, 513 F.3d 874, 883 (8th Cir.2008). Thus, “[u]nder Rule 15(b), ‘[ajmendments are allowed when the parties have had actual notice of an unpleaded issue and have been given an adequate opportunity to cure any surprise resulting from the change in the plead *711 ings.’ ” Cook v. City of Bella Villa, 582 F.3d 840, 852 (8th Cir.2009) (quoting Kim v. Nash Finch Co., 123 F.3d 1046, 1063 (8th Cir.1997), in turn quoting Nielson v. Armstrong Rubber Co., 570 F.2d 272, 275 (8th Cir.1978)). 15
Johnson argues that an evidentiary hearing in habeas corpus proceedings is analogous to a “trial” for Rule 15(b) purposes. She also asserts that Rule 15(b) should be construed to allow the court to decide cases on the merits, rather than on the pleading skills of counsel, albeit also with the goal of avoiding possible prejudice to the opposing party. Johnson contends that, during the evidentiary hearing, the respondent made few objections to evidence on the ground that it exceeded the scope of pleaded claims and, just as importantly, that the respondent was on notice of her intent to amend her § 2255 motion to conform to proof and participated in the development of the record concerning some of the “new” claims. The respondent argues that Rule 15(b) is inapplicable to § 2255 claims brought after expiration of the applicable statute of limitations, so that the question for all of Johnson’s “new” claims is whether they “relate back” within the meaning of Rule 15(c) and applicable law in § 2255 cases.
I will assume, without deciding, that an evidentiary hearing in a § 2255 proceeding is sufficiently analogous to a “trial” to make Rule 15(b) applicable to these proceedings. Cf. Banks v. Dretke, 540 U.S. 668, 704-05 , 124 S.Ct. 1256 , 157 L.Ed.2d 1166 (2004) (observing, in a § 2254 proceeding, “that Rule 15(b)’s use in habeas proceedings is ‘noncontroversial,’ ” that the Court has “assumed Rule 15(b)’s application to habeas petitions,” and that the Court saw “no reason why an evidentiary hearing should not qualify [as a Rule 15(b) trial] so long as the respondent gave ‘any sort of consent’ and had a full and fair ‘opportunity’ to present evidence bearing on th[e] claim’s resolution”). I will also assume, without deciding, that Johnson would otherwise be entitled to amend her § 2255 motion to assert the “new” claims in her Second Amended § 2255 Motion, filed in the midst of the episodic evidentiary hearing, either pursuant to Rule 15(b)(1) or Rule 15(b)(2). I do not, however, conclude that such assumptions resolve the question of whether the “new” claims can be considered on the merits. Rather, I conclude that Rule 15(b) is inapplicable to an amendment to § 2255 claims after the expiration of the statute of limitations for § 2255 claims, and, in the alternative, that even amendments pursuant to Rule 15(b) must satisfy the “relation back” requirements of Rule 15(c).
More specifically, the respondent is correct that I have observed,
Rule 15 of the Federal Rules of Civil Procedure governs a motion to amend a § 2255 motion if it is made before the one-year limitation period for filing a § 2255 motion has expired. See 28 U.S.C. § 2255 . Pursuant to Rule 15, a court should freely grant leave to amend when justice so requires.” Gillette v. Tansy, 17 F.3d 308, 312 (10th Cir.1994) (citations omitted) (reversing district court’s denial of motion to amend § 2254 habeas application to add claim as an abuse of discretion). In contrast, however, “an untimely amendment to a § 2255 motion which, by way of additional facts, clarifies or amplifies a claim or theory in the original motion may, in the District Court’s discretion, relate *712 back to the date of the original motion if and only if the original motion was timely filed and the proposed amendment does not seek to add a new claim or to insert a new theory into the case.” See United States v. Espinoza-Saenz, 235 F.3d 501, 505 (10th Cir.2000) (emphasis added).... Thus, the timeliness, or lack thereof, of [a § 2255 petitioner’s amended claims] is interdependent upon the starting date for the one-year limitation.
United States v. Ruiz-Ahumada, 2006 WL 3050807 , *2 (N.D.Iowa Oct. 24, 2006). Thus, Rule 15(b) is inapplicable to Johnson’s amendments to her § 2255 claims made only after expiration of the § 2255 statute of limitations.
Other courts, including the Eighth Circuit Court of Appeals, have recognized that amendments pursuant to Rules 15(a) or 15(b) in § 2255 cases, offered after the expiration of the § 2255 statute of limitations, ai’e still subject to the “relation back” requirements of Rule 15(c). United States v. Craycraft, 167 F.3d 451, 457 (8th Cir.1999) (in a § 2255 action, considering whether claims asserted after the expiration of the statute of limitations related back pursuant to Rule 15(c), even where the amendment was permissible pursuant to Rule 15(a)); accord United States v. Espinozar-Saenz, 235 F.3d 501, 505 (10th Cir.2000) (holding that “an untimely amendment to a § 2255 motion which, by way of additional facts, clarifies or amplifies a claim or theory in the [original motion] may, in the District Court’s discretion, relate back to the date of the [original motion] if and only if the [original motion] was timely filed and the proposed amendment does not seek to add a new claim or to insert a new theory into the case”); United States v. Pittman, 209 F.3d 314, 317 (4th Cir.2000) (in a § 2255 case, holding that a claim might be futile within the meaning of Rule 15(a), if the new claim was barred by the statute of limitations, and that, “[w]hen proposed claims in an amendment are barred by the statute of limitations, Rule 15(c) provides for the relation back of amendments to the original pleading under certain circumstances”); United States v. Bazile, 2008 WL 4453106 , *5 (N.D.Okla. Sept. 30, 2008). 16
Although Rule 15(b)(2) states that a claim tried by consent “must be treated in all respects as if raised in the pleadings,” Fed.R.Civ.P. 15(b)(2), I do not read that language to eliminate the need for a Rule 15(c) “relation back” analysis of such a claim. Rules 15(a) and 15(b) explain the circumstances in which amendments are permitted, while Rule 15(c) considers, as an independent inquiry, whether those amendments “relate back” to the filing of the original pleadings. This is so, because subsection (a) pertains to “amendments before trial,” and subsection (b) pertains to “amendments during and after trial,” so that these two subsections cover the entire time frame of a lawsuit. Subsection (c) then provides for “relation back of amendments,” that is, “amendments” authorized *713 by either Rule 15(a) or Rule 15(b), when certain requirements are met. Thus, even when an amendment is authorized by Rule 15(a) or 15(b), it must still satisfy the “relation back” requirements of Rule 15(c). The point that Rule 15(a) or (b) and Rule 15(c) analyses are sequential for § 2255 claims was also made in Hernandez , where the Eighth Circuit Court of Appeals found that the opportunity to supplement the original filings pursuant to Rule 15(a) did not itself trigger a Rule 15(c)(2) analysis and the relation back doctrine because, on its face, it simply allowed the petitioner an opportunity to use his appointed counsel to further explain the issues raised in his pro se motion, but did not refer to or address the statute of limitations. Hernandez, 436 F.3d at 858 .
Therefore, I turn to what the respondent has correctly identified as the crux of the matter, whether the challenged “new” claims “relate back” to the filing of Johnson’s earlier pleadings.
iii. Rule 15(c) and “relation back.” The Eighth Circuit Court of Appeals recently summarized the “relation back” analysis pursuant to Rule 15(c) for purposes of § 2255 claims and, in doing so, recognized the interplay between the “relation back doctrine” and the statute of limitations for such claims:
Postconviction motions for relief must be filed within one year from the date that the judgment becomes final. 28 U.S.C. § 2255 (f). Claims made in an untimely filed motion under § 2255 may be deemed timely if they relate back to a timely filed motion as allowed by Federal Rule of Civil Procedure 15(c). See United States v. Hernandez, 436 F.3d 851, 857 (8th Cir.) (concluding that Rule 15(c)’s relation back rules apply to § 2255 motions), cert. denied, 547 U.S. 1172 , 126 S.Ct. 2341 , 164 L.Ed.2d 856 (2006). The district court determined that eight of the nine ineffective assistance claims asserted in the amended motion were not sufficiently similar to the original claims for purposes of Rule 15(c)’s relation back rule. “ ‘We review a district court’s application of Rule 15(c) for an abuse of discretion.’ ” Id. (quoting Mandacina v. United States, 328 F.3d 995, 1000 (8th Cir.), cert. denied, 540 U.S. 1018 , 124 S.Ct. 592 , 157 L.Ed.2d 433 (2003)).
Claims made in an amended motion relate back to the original motion when the amendment asserts a claim that arose out of the same “conduct, transaction, or occurrence set out ... in the original” motion. Fed.R.Civ.P. 15(c)(1)(B). To arise out of the same conduct, transaction, or occurrence, the claims must be “tied to a common core of operative facts.” Mayle v. Felix, 545 U.S. 644, 664 , 125 S.Ct. 2562 , 162 L.Ed.2d 582 (2005) (applying Rule 15(c) to a 28 U.S.C. § 2254 petition). An amended motion may raise new legal theories only if the new claims relate back to the original motion by “arising] out of the same set of facts as [the] original claims.” Mandacina, 328 F.3d at 1000 . The facts alleged must be specific enough to put the opposing party on notice of the factual basis for the claim. See Hernandez, 436 F.3d at 858 (explaining the rationale for Rule 15(c)). Thus, it is not enough that both an original motion and an amended motion allege ineffective assistance of counsel during a trial. See United States v. Ciampi, 419 F.3d 20, 24 (1st Cir.2005) (“[A] petitioner does not satisfy the Rule 15 ‘relation back’ standard merely by raising some type of ineffective assistance in the original petition, and then amending the petition to assert another ineffective assistance claim based upon an entirely distinct type of attorney misfeasance.”), cert. denied, 547 U.S. 1217 , 126 S.Ct. 2906 , 165 L.Ed.2d *714 936 (2006). The allegations of ineffective assistance “must be of the same ‘time and type’ as those in the original motion, such that they arise from the same core set of operative facts.” Hernandez, 436 F.3d at 857 (quoting Mayle, 545 U.S. at 650, 657, 660 , 125 S.Ct. 2562 and holding that ineffective assistance claim alleging that counsel inadequately cross-examined two witnesses did not relate back to a claim for ineffective assistance related to counsel’s failure to object to the admission of evidence lacking a proper foundation); see also Mandarina, 328 F.3d at 1002 (concluding that counsel’s alleged failure to investigate the police report of an interview naming potential suspects was not a similar type of error as allegedly failing to discover exculpatory footprints during counsel’s investigation of the case); United States v. Craycraft, 167 F.3d 451, 457 (8th Cir.1999) (failure to file an appeal is not the same type of error as failure to seek a downward departure or challenge the drug type at sentencing).
Dodd v. United States, 614 F.3d at 512, 515 (8th Cir.2010).
As the Eighth Circuit Court of Appeals had previously explained, it is not enough for the new claim to refer to the same trial, conviction, or sentencing being challenged:
The Supreme Court rejected a similar claim in Mayle , where the petitioner argued that a claim related back “so long as the new claim stems from the habeas petitioner’s trial, conviction, or sentence.” Mayle, 125 S.Ct. at 2570 . The Supreme Court held that this definition of “conduct, transaction, or occurrence” was too broad, as “virtually any new claim ... will relate back, for federal habeas claims, by their very nature, challenge the constitutionality of a conviction or sentence, and commonly attack proceedings anterior thereto.” Id. Section 2255 motions share this same attribute. In order for the claims in an amended motion to relate back, the Court held that they must be of the same “time and type” as those in the original motion, such that they arise from the same core set of operative facts. Id. at 2566, 2571, 2574 (quoting Craycraft, 167 F.3d at 457 ).
Hernandez, like the petitioner in Mayle , argues that the trial itself is the “transaction” or “occurrence” that satisfies Rule 15. See Mayle, 125 S.Ct. at 2572 . And like the petitioner in Mayle , this argument does not succeed. The activities in question are not tied to a “common core of operative facts” that would make relation back proper. See id. at 2574; Craycraft, 167 F.3d at 457 .
Hernandez, 436 F.3d at 857 ; accord Dodd, 614 F.3d at 516 (also explaining, “It is not enough that the alleged errors arose during Dodd’s trial,” citing Mayle, 545 U.S. at 650 , 125 S.Ct. 2562 , and Hernandez, 436 F.3d at 858 , “or relate generally to counsel’s alleged inaction during trial,” citing Ciampi 419 F.3d at 24 ).
In Dodd , the court held that claims of ineffective assistance of trial counsel for failing to object to speculative testimony concerning drug quantities did relate back to assertions in the original complaint that trial counsel failed to cross examine more than half of the government witnesses and to object to the alleged drug amounts to which they testified, concluding that both claims refer to the same operative facts. Id. at 516 . The court reasoned, “[t]he fact that the amended motion identifies the legal basis of the objectionable nature of the testimony as being too speculative does not change the factual similarity of the two complaints. Both the original and the amended motions identify the Government witnesses’ drug quantity testimony as evidence counsel should have objected to but did not, allegedly rendering counsel’s assistance ineffective.” Id. On the other hand, the court held that “none of the *715 remaining amended claims arose from the same operative facts as the allegations made in the original motion.” Id. One “new” claim asserted that counsel had a conflict of interest, but no claim in the original motion addressed a conflict of interest or even referred to the witness giving rise to the purported conflict, and other new claims related to trial counsel’s failure to challenge specific evidence or testimony, but the original claims identified different insufficiencies in trial counsel’s challenges to different evidence or testimony in different circumstances. Id. at 516-17 .
In Hernandez , the court also rejected the § 2255 petitioner’s contentions that certain amended claims related back to his original claims:
Hernandez’s original claim referred to the admission of evidence. The amended claim referred to trial testimony and cross-examination of witnesses. The facts alleged in the original claim were not such that would put the opposition on notice that cross-examination of witnesses was at issue. See Mandacina, 328 F.3d at 1000 (stating that “[t]he rationale of Rule 15(c) is that a party who has been notified of litigation concerning a particular occurrence has been given all the notice that statutes of limitations were intended to provide.” (quoting Craycraft, 167 F.3d at 457 )). These claims are not similar enough to satisfy the “time and type” test, nor do they arise out of the same set of operative facts. The district court did not abuse its discretion in finding that the claim of ineffective assistance of counsel on cross-examination did not relate back to the claims contained in the original motion.
Hernandez, 436 F.3d at 858 .
c. Application of the standards
i. Preliminary matters. Before applying the relevant Rule 15(c) “relation back” standards, I must first address some preliminary matters. One is the proper comparator for the amended claims, and the other is the effect of the pleading requirements of Rule 8 of the Federal Rules of Civil Procedure on the “relation back” analysis.
The respondent identifies the comparator as Johnson’s Original § 2255 Motion, while Johnson identifies the comparator as her Corrected Amended § 2255 Motion. The respondent did not assert that any claims in the Corrected Amended § 2255 Motion were untimely or that they did not relate back to the Original § 2255 Motion. Therefore, I will treat the Corrected Amended § 2255 Motion as the proper comparator for the challenged claims in Johnson’s Second Amended § 2255 Motion.
Johnson also asserts that it is inappropriate to expect the kind of factual specificity of the earlier claims, which she concedes are broadly-stated or even vague, that the respondent thinks is necessary for the amended claims to relate back to them. She contends that this is so, because Rule 8 of the Federal Rules of Civil Procedure requires only a “short and plain statement” of her claims. Thus, she contends that the amended claims do “relate back” precisely because the earlier claims are so broadly-stated or even vague as to encompass the later ones. I do not agree.
As I noted above, “The Federal Rules of Civil Procedure govern habeas proceedings unless superseded by the rules governing section 2254 or 2255 cases.” Barnett, 541 F.3d at 807 (citing Fed.R.CivP. 81(a)(4)); see also Habeas Rule 12 (“The Federal Rules of Civil Procedure and the Federal Rules of Criminal Procedure, to the extent that they are not inconsistent with any statutory provisions or these rules, may be applied to a proceeding under these rules.”). Rule 8 of the Federal *716 Rules of Civil Procedure, which requires only a “short and plain statement of the claim showing that the pleader is entitled to relief,” is not applicable to pleading of § 2255 claims, because Habeas Rule 2 does supersede and is inconsistent with Rule 8 of the Federal Rules of Civil Procedure.
Habeas Rule 2(b) provides, in pertinent part, as follows:
(b) Form. The motion must:
(1) specify all the grounds for relief available to the moving party;
(2) state the facts supporting each ground.
Habeas Rule 2(b). Although the Eighth Circuit Court of Appeals has not expressly said so, other Circuit Courts of Appeals have recognized that “the § 2254 Rules and the § 2255 Rules mandate ‘fact pleading’ as opposed to ‘

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/8698439. Public record. Not legal advice.