recognizing that “AEDPA’s one-year statute of limitations ... has rendered outright dismissal perilous to some litigants, because petitioners ... may find themselves time-barred when they attempt to resubmit their exhausted claims to the district court”
How later courts described this case
- recognizing that “AEDPA’s one-year statute of limitations ... has rendered outright dismissal perilous to some litigants, because petitioners ... may find themselves time-barred when they attempt to resubmit their exhausted claims to the district court”
- holding that "outright dismissal” of a mixed petition without leave to amend was “improper,” and emphasizing that “district courts must provide habeas litigants with the opportunity to amend their mixed petitions by striking unex-hausted claims”
- holding that FRCP 15(c) — made applicable to habeas petitions by 28 U.S.C. § 2242 — allows the amended pleading, including newly exhausted claims, to “relate back” to the date of the original filing
- stating that one of the central policies of Rule 15(c) is 15 to “ensur[e] that the non-moving party has sufficient notice of the facts and claims giving 16 rise to the proposed amendment”
Written by the judges who cited it.
The opinion
FERNANDEZ, Circuit Judge,
concurring and dissenting:
I concur in parts II-A, II-B-2, and II-C of the majority opinion. However, I am unable to concur in parts II-B-1 or in IIB-3.
*582 In particular, the simple fact is that, for good or ill, the first federal habeas corpus petition was dismissed. Even if it should not have been, Anthony should have appealed. His new filing could not relate back to the dismissed filing. See Green v. White, 223 F.3d 1001, 1003 (9th Cir.2000); Van Tran v. Lindsey, 212 F.3d 1143, 1148 (9th Cir.2000); Henry v. Lungren, 164 F.3d 1240, 1241 (9th Cir.1999). The majority’s carving out of a district-court-should-not-have-dismissed in-the-first-place rule will breed nothing but confusion. Again, if Anthony was not satisfied with the ruling, he should have appealed it; he did not. The majority’s distinguishing of our prior cases is not persuasive. See Maj. Op. p. 574 n. 1. The point of those cases did not turn on whether the petitioner had exhausted the unexhausted claims; it was that there was nothing to relate back to once there was a dismissal. Of course, I recognize that any case can be distinguished, but attempted distinctions of the kind made in the footnote seem to undercut any suggestion that we will follow precedent.
As a result, because the holding in part II-B-3 of the proposed opinion hinges on the notion that the June 13th petition was merely an amendment to the April 23rd petition, which included all claims, I do not agree with that portion of the opinion either. I do not disagree with the general principle that relation back theories are available in proper habeas corpus cases. However, again, I disagree with the minor premise. In fact, the result here points to one of the dangers lurking in the minor premise in the first place. The mere mention of unexhausted claims becomes sufficient to stop the statute of limitations on all claims, even if the petition, itself, has been dismissed. In other words, whatever might be said for the relation back doctrine, it cannot help Anthony in this case. That being so, I would not reach the issue at all, and I do not join in that portion of the majority opinion.
Finally, although I do concur in part IIC, I am constrained to say that I cannot join in the notion that “providing immunity on the condition that the subject is telling the truth about his lack of involvement in the crime does not accomplish much.” See Maj. Op. p. 581. I do not quite see why, in general, the only useful form of immunity is one that permits lying. I find that to be a rather strange concept. Here Anthony’s alleged concern was that the others would lie about him, and he did not want to fight that particular battle. As it was, he was the one who was lying. It did not accomplish much for him, but to state that in principle you do not get much from telling the truth seems unduly cynical, and also seems to put some kind of premium on picaresque activity. Certainly, no defendant should rely on that particular dictum as a way of claiming that counsel failed him when he was allowed to agree to a truthfulness term.
Thus, for the reasons set forth above, I concur in part but respectfully dissent in part.