Petitioners Brief — Pliler v. Ford

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No. 03-221

IN THE SUPREME COURT OF THE UNITED STATES

CHERYL K. PLILER, Warden of California

State Prison—Sacramento, Petitioner,

RICHARD HERMAN FORD, Respondent.

ON WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

PETITIONER’S BRIEF ON THE MERITS

BILL LOCKYER

Attorney General of the State of California

MANUEL M. MEDEIROS

State Solicitor General

ROBERT R. ANDERSON

Chief Assistant Attorney General

PAMELA C. HAMANAKA

Senior Assistant Attorney General

DONALD E. DE NICOLA

Deputy Attorney General

KENNETH C. BYRNE

Supervising Deputy Attorney General

*PAUL M. ROADARMEL JR.

Deputy Attorney General

*Counsel of Record

300 South Spring Street

Los Angeles, CA 90013

Telephone: (213) 897-2396

Fax: (213) 897-2806

Counsel for Petitioner

QUESTIONS PRESENTED

1. Whether the dismissal of a “mixed” habeas petition is

improper unless the district court informs the petitioner about

the possibility of a stay of the proceeding pending exhaustion of

state remedies and advises the petitioner with respect to the

statute of limitations in the event of any refiling.

2. Whether a second, untimely habeas petition may relate

back to a first habeas petition, where the first habeas petition

was dismissed and the first proceeding is no longer pending.

TABLE OF CONTENTS

OPINION OR JUDGMENT BELOW

STATEMENT OF JURISDICTION

RELEVANT STATUTORY PROVISIONS

STATEMENT OF THE CASE

SUMMARY OF ARGUMENT

ARGUMENT

THE NINTH CIRCUIT ERRED IN

HOLDING THAT THE DISMISSAL OF

A MIXED PETITION IS IMPROPER

ABSENT ADVICE AND

INFORMATION DESIGNED TO

EFFECTUATE STAY AND

ABEYANCE

A. The Ninth Circuit’s Procedure Conflicts

With The Total Exhaustion Rule Of Rose

v. Lundy, Which AEDPA Retained

B. Stay And Abeyance Subverts The Design

And Intent Of AEDPA’s Limitation

Period

Page

Il.

ill

TABLE OF CONTENTS (continued)

Page

C. The Ninth Circuit’s Advisement

Requirement Regarding AEDPA’s

Limitation Period Is Unduly Burdensome,

Will Breed New Disputes, And Threatens

To Blur The Distinction Between Impartial

Decision-Making And Advocacy

The Ninth Circuit Erroneously Concluded

That The District Court’s Dismissal Of The

Mixed First Petitions Was Improper

THE APPLICATION OF FEDERAL

RULE OF CIVIL PROCEDURE 15(c)

TO HABEAS PROCEEDINGS WOULD

IN EFFECT NULLIFY AEDPA’S

LIMITATION PERIOD

A. The Relation-Back Doctrine Does Not

Apply To Habeas Proceedings

1. Application Of Rule i5(c) To Habeas

Proceedings Would Be Inconsistent

With The Design And Intent Of

AEDPA

2. Application Of Rule 15(c) To Habeas

Proceedings Would Improperly Permit

The Consideration of Time-Barred

Claims

TABLE OF CONTENTS (continued)

TABLE OF AUTHORITIES

od Page

B. Even Assuming The Relation-Back Cases

Doctrine Applies To Habeas Proceedings,

Application Of The Doctrine In The | Akins v. Kenney,

Manner Employed By The Ninth Circuit 341 F.3d 681 (CA8 2003) 18

Was Improper 36

Brecht v. Abrahamson,

CONCLUSION 39 507 U.S. 619 (1993) 31

| Browder v. Dir., Dep't of Corrs.,

434 U.S. 257 (1978) 27, 28

Butler v. McKeller,

494 U.S. 407 (1990) 31

Calderon v. District Court (Taylor),

| 134 F.3d 981 (CA9 1998) 21

| Calderon v. Thompson,

523 U.S. 538 (1998) 21

Carey v. Saffold,

536 U.S. 214 (2002) 21

Castille v. Peoples,

489 U.S. 346 (1989) 12

Castro v. United States,

124 S. Ct. 786 (2003) 26

Coleman v. Thompson,

501 U.S. 722 (1991) 12

TABLE OF AUTHORITIES (continued)

Page

Colorado River Water Conservation

Dist. v. United States,

424 U.S. 800 (1976) 10, 23

Davenport v. United States,

217 F.3d 1341 (CA11 2001) 36

Duncan v. Walker,

533 U.S. 167 (2001) 9, 10, 13, 14, 16-21, 25, 26, 35, 36

Ellzey v. United States,

324 F.3d 521 (CA7 2003) 36

Engle v. Isaac,

456 U.S. 107 (1982) 13

Fetterly v. Paskett,

997 F.2d 1295 (CA9 1993) 20

Fisher v. Baker, :

203 U.S. 174 (1906) 27

Ford v. California,

508 U.S. 975 (1993) 4

Ford v. California,

510 U.S. 838 (1993) 4

Ford v. Hubbard,

305 F.3d 875 (CA9 2002),

amended by

330 F.3d 1086 (CA9 2003) l

ec eR te

Vii

TABLE OF AUTHORITIES (continued)

Graham v. Johnson,

168 F.3d 762 (CAS 1999)

Green v. White,

223 F.3d 1001 (CA9 2000)

Harris v. Nelson,

394 U.S. 286 (1969)

Henry v. Lungren,

164 F.3d 1240 (CA9 1999)

Hill v. Shelander,

924 F.2d 1370 (CA7 1991)

Hunt v. Hopkins,

266 F.3d 934 (CA8 2001)

In re Blodgett,

502 U.S. 236 (1992)

James v. Giles,

221 F.3d 1074 (CA9 2000)

James v. Pliler,

269 F.3d 1124 (CA9 2001)

Jones v. Morton, -

195 F.3d 153 (CA3 1999)

Kelly v. Small,

315 F.3d 1063 (CA9 2003)

11, 27-31

10, 19, 23

Vill

TABLE OF AUTHORITIES (continued)

Page

Marsh v. Soares,

223 F.3d 1217 (CA10 2000) 37

McCarthy v. Madigan,

503 U.S. 140 (1992) 23

Neuschafer v. Whitley,

860 F.2d 1470 (CA9 1988) 21

Neverson v. Bissonnette,

261 F.3d 120 (CAI 2001) 37

Newell v. Hanks,

283 F.3d 827 (CA7 2002) 37

Norris v. Risley,

878 F.2d 1178 (CA9 1989) 32

Nyland v. Moore,

216 F.3d 1264 (CA11 2000) 37

Order of R.R. Tels. v. Ry. Express Agency, Inc.,

321 U.S. 342 (1944) 30, 31

People v. Von Villas,

10 Cal. App. 4th 210,

13 Cal. Rptr. 2d 62 (1992) 4

People v. Von Villas,

11 Cal. App. 4th 175,

15 Cal. Rptr. 2d 112 (1992) 4

TABLE OF AUTHORITIES (continued)

Page

Percy v. San Francisco Gen. Hosp.,

841 F.2d 975 (CA9 1988) 30

Pitchess v. Davis,

421 U.S. 482 (1975) 28

Quackenbush v. Allstate Ins. Co.,

517 U.S. 706 (1996) 23

Rosales-Garcia v. Holland,

322 U.S. 386 (CA6 2003) 36

Rose v. Lundy,

455 U.S. 509 (1981) 9, 12-15, 17-20, 22, 23, 25, 26

Schiavone v. Fortune,

477 US. 21 (1986) 30

Sierra Club v. Chevron U.S.A., Inc.,

834 F.2d 1517 (CA9 1987) 31

Singletary v. Pennsylvania Dep't of Corrs.,

266 F.3d 186 (CA3 2001) 31

Slayton v. Smith,

404 U.S. 53 (1971) 10, 21

Sterling v. Scott,

57 F.3d 451 (CAS 1995) 10, 23

Teague v. Lane,

489 U.S. 288 (1989) 12, 31

TABLE OF AUTHORITIES (continued)

United States v. Hasting,

461 U.S. 499 (1983)

United States v. Sisson,

399 U.S. 267 (1970)

Van Tran v. Lindsey,

212 F.3d 1143 (CA9 2000)

Warren v. Garvin,

219 F.3d 111 (CA2 2000)

Williams v. Taylor,

529 U.S. 362 (2000)

Williams v. Taylor,

529 U.S. 420 (2000)

Williams v. United States,

401 U.S. 646 (1971)

Wilson v. Garcia,

471 U.S. 261 (1985)

Woodford v. Garceau,

538 U.S. 202 (2003)

Page

23, 24

17, 22

22, 35

TABLE OF AUTHORITIES (continued)

Constitutional Provisions

U.S. Const. amend. IV

U.S. Const. amend. V

U.S. Const. amend. VI

U.S. Const. amend. XIV

Statutes

28 U.S.C. § 153

28 U.S.C. § 1254(1)

28 U.S.C. § 2244

28 U.S.C. § 2244(d)(1)

28 U.S.C. § 2244(d)(2)

28 U.S.C. § 2254

28 U.S.C. § 2254(b)

28 U.S.C. § 2254(b)(1)(A)

28 U.S.C. § 2254(d)

28 U.S.C. § 2254(d)(1)

28 U.S.C. § 2254(d)(2)

Page

2, 4, 20

16, 20, 31

16, 18, 20, 35

3, 10, 14, 27, 32

Xli

TABLE OF AUTHORITIES (continued)

28 U.S.C. § 2254(e)

28 U.S.C. § 2254(e)(2)

28 U.S.C. § 2255

28 U.S.C. § 2264(a)

Court Rules

Fed. R. App. P. 47(b)

Fed. R. Civ. P.

Fed. R. Civ.

9(a)

12(b)(6)

15(c)

. 60(b)(6)

. 81(a)(2)

10, 27

10, 11, 26, 30, 31, 36, 37

28, 29

11, 27,28 *

xiii

TABLE OF AUTHORITIES (continued)

Page

Other Authorities

142 Cong. Rec. H2137

(daily ed. Mar. 13, 1996) 33

142 Cong. Rec. H2143

(daily ed. Mar. 13, 1996) 34

142 Cong. Rec. H2182

(daily ed. Mar. 13-14, 1996) 34

142 Cong. Rec. H2184

(daily ed. Mar. 13-14, 1996) 34

142 Cong. Rec. H2249

(daily ed. Mar. 13-14, 1996) 34

142 Cong. Rec. H2267

(daily ed. Mar. 14, 1996) 34

142 Cong. Rec. H2288

(daily ed. Mar. 14, 1996) 34

142 Cong. Rec. H2304

(daily ed. Mar. 14, 1996) 34

142 Cong. Rec. H3618

(daily ed. Apr. 18, 1996) 34

142 Cong. Rec. $3477

(daily ed. Apr. 17, 1996) 34

X1V

TABLE OF AUTHORITIES (continued)

Page

141 Cong. Rec. $4590-96

(daily ed. Mar. 24, 1995) 33

141 Cong. Rec. $7803

(daily ed. June 7, 1995) 33, 35

141 Cong. Rec. $7804

(daily ed. June 7, 1995) 22

141 Cong. Rec. $7847

(daily ed. June 7, 1995) 17

141 Cong. Rec. $7857

(daily ed. June 7, 1995) 33

141 Cong. Rec. $7868-71

(daily ed. June 7, 1995) 33

Comprehensive Antiterrorism Act of 1995

H.R. 2703 33, 34

Comprehensive Terrorism Prevention Act

Title VI of S. 735 33

H.R. Conf. Rep. No. 104,

104th Cong., 2d Sess. (1996) 34

Pub. L. No. 104-132;

1996 U.S.C.C.A.N. (110 Stat.) 35

— ee ees

SE TE A er a st

IN THE SUPREME COURT OF THE UNITED STATES

No. 03-221

CHERYL K. PLILER, Warden of California

State Prison—Sacramento, Petitioner,

Vv.

RICHARD HERMAN FORD, Respondent.

OPINION OR JUDGMENT BELOW

The opinion of the Ninth Circuit Court of Appeals is

reported as Ford v. Hubbard, 305 F.3d 875 (CA9 2002),

amended by 330 F.3d 1086 (CA9 2003), and is reproduced in

the appendix to the petition for writ of certiorari. Pet. App.

Al-A45.

STATEMENT OF JURISDICTION

The judgment of the Ninth Circuit affirming in part,

vacating in part, and remanding with instructions, was amended

and entered on May 15, 2003. Pet. App. A2. The Ninth Circuit

denied Warden Pliler’s petition for rehearing and suggestion for

rehearing en banc on the same date. Pet. App. Al3. The

petition for writ of certiorari was filed on August 8, 2003, and

was granted on January 9, 2004. The jurisdiction of this Court

rests on 28 U.S.C. § 1254(1).

RELEVANT STATUTORY PROVISIONS

Section 2244 of Title 28 of the United States Code

provides in pertinent part:

(d)(1) A 1-year period of limitation shall apply

to an application for a writ of habeas corpus by a

person in custody pursuant to the judgment of a State

court. The limitation period shall run from the latest

of —

(A) the date on which the judgment became

final by the conclusion of direct review or the

expiration of the time for seeking such review;

(B) the date on which the impediment to

filing an application created by State action in

violation of the Constitution or laws of the United

States is removed, if the applicant was prevented

from filing by such State action;

right asserted was initially recognized by the Supreme

Court, if the right has been newly recognized by the

Supreme Court and made retroactively applicable to

cases on collateral review; or

(D) the date on which the factual predicate

of the claim or claims presented could have been

discovered through the exercise of due diligence.

(2) The time during which a properly filed

application for State post-conviction or other

collateral review with respect to the pertinent

judgment or claim is pending shall not be counted

toward any period of limitation under this subsection.

Section 2254 of Title 28 of the United States Code

provides in pertinent part:

(b)(1) An application for a writ of habeas corpus

on beha!f of a person in custody pursuant to the

judgment of a State court shall not be granted unless

it appears that —

(A) the applicant has exhausted the

remedies available in the courts of the State * * * *

Rule 15 of the Federal Rules of Civil Procedure provides

in pertinent part:

amendment of a pleading relates back to the date of

the original pleading when

(1) relation back is permitted by the law that

provides the statute of limitations applicable to the

action, or

(2) the claim or defense asserted in the

amended pleading arose out of the conduct,

transaction, or occurrence set forth or attempted to be

set forth in the original pleading * * * *

STATEMENT OF THE CASE

On October 11, 1988, respondent Richard Herman Ford

and co-defendant Anthony Von Villas, both former Los Angeles

Police Department officers, were convicted of first-degree

murder for financial gain and conspiracy to commit murder for

killing Thomas Weed. After the jury deadlocked during the

penalty phase of trial, the trial court sentenced Ford to life

without the possibility of parole. See Pet. App. Al8 (Weed

Case).

On November 16, 1992, the California Court of Appeal

affirmed the judgment of conviction as to Ford. See People v.

Von Villas, 11 Cal. App. 4th 175, 257-61, 15 Cal. Rptr. 2d 112,

162-65 (1992). Ford’s petition for review in the California

Supreme Court was denied. See Pet. App. Al9. A petition for

writ of certiorari was denied by this Court on October 4, 1993.

See Ford v. California, 510 U.S. 838 (1993).

In a separate trial, Ford and Von Villas were also convicted

of conspiracy to commit another murder; the charge named Joan

Loguercio as the target. In addition, Ford and Von Villas were

convicted of two counts of attempted murder involving

Loguercio, as well as robbery, conspiracy to commit robbery,

and assault with a firearm. Ford alone was convicted of

attempted administration of an intoxicating agent. On March

11, 1989, Ford received a sentence of thirty-six years to life.

See Pet. App. A16 (Loguercio Case).

On October 9, 1992, the California Court of Appeal

affirmed the judgment of conviction. See People v. Von Villas,

10 Cal. App. 4th 210, 274-75, 13 Cal. Rptr. 2d 62, 107 (1992).

Ford’s petition for review in the California Supreme Court was

denied. See Pet. App. A16. A petition for writ of certiorari was

denied by this Court on June 14, 1993. See Ford v. California,

508 U.S. 975 (1993).

On April 19, 1997, five days before the expiration of the

one-year limitation period for filing petitions under the

Antiterrorism and Effective Death Penalty Act of 1996

(hereafter AEDPA), see 28 U.S.C. § 2244, Ford signed and

submitted a pro se petition for writ of habeas corpus challenging

his conviction in the Weed Case; the petition was forwarded to

the clerk and filed in the United States District Court for the

Central District of California on May 5, 1997. J.A. 58-72. On

April 19, 1997, Ford filed a motion to stay the petition while he

exhausted his state-court remedies on three claims that were not

alleged in the petition. J.A. 73-74. On August 4, 1997, the

magistrate judge issued an order determining that claims two,

three, and eight through twelve were unexhausted (and noting

that Ford had admitted as much, but wished to proceed on those

claims that were “actionable”). J.A.79-83; see also J.A. 75-78.

The magistrate judge denied Ford’s motion to stay the mixed

petition, but gave Ford the option of dismissing his unexhausted

claims and proceeding on the exhausted claims; the magistrate

judge also informed Ford that any failure to respond to the

court’s inquiry would result in the dismissal of the petition. J.A.

80-83; see also Pet. App. D1-D2. When Ford did not respond,

the district court dismissed the petition without prejudice in a

judgment entered on October 14, 1997. Pet. App. D1-D5. No

appeal was filed. See J.A. 9.

On April 19, 1997, Ford signed and submitted a pro se

petition challenging his conviction in the Loguercio Case; that

petition was likewise filed in the United States District Court

1. In his first petition in the Weed Case, Ford alleged the following

claims: (1) the admission of a tape recording violated his constitutionally-

cognizable expectation of privacy; (2) the seizure of evidence exceeded the

scope of a warrant, in violation of the Fourth Amendment; (3) a warrant for

the tape recording was obtained in violation of the federal Omnibus Crime

Act; (4) a tape recording was used in violation of his protected marital

privilege and invaded his constitutional right to confidential communication;

(5) the change of ruling on a motion to dismiss the information violated the

Fourteenth Amendment; (6) an inaccurate ruling regarding overt acts among

conspirators resulted in a violation of due process; (7) the trial court erred

in refusing to give an instruction regarding the need for unanimous

agreement on each specific overt act; (8) the trial court's refusal to allow

impeachment of the prosecution's witnesses with prior convictions and

biases resulted in the violation of the Confrontation Clause; (9) the

admission of prejudicially misleading photographs resulted in a violation of

the right to a fair trial; (10) the trial court provided a misleading jury

instruction regarding motive; and (1 1) the trial court provided an ambiguous

instruction regarding admissions. J.A. 66-71.

for the Central District of California on May 5, 1997.2 J.A. 35-

47. As in the Weed Case, Ford contemporaneously filed a

motion to stay the petition while he exhausted his state-court

remedies on three claims that were not alleged in the petition.

J.A. 48-49. On July 7, 1997, the magistrate judge issued an

order finding that grounds four and seven of the petition were

unexhausted, and gave Ford the option of dismissing the

unexhausted claims and proceeding with only the exhausted

claims, or suffering dismissal of the petition. Ford was to notify

the court of his choice by July 25, 1997. Ford was also advised

in that order that the court did not have the discretion to stay a

mixed petition. J.A. 50-53. On July 28, 1997, Ford filed a

document notifying the court that he wished to dismiss the

petition without prejudice so that he could return to state court

to exhaust his unexhausted claims. J.A. 54-55; see also Pet.

2. In his first petition in the Loguercio Case, Ford alleged the

following claims: (1) the trial court violated his Confrontation Clause rights

when it quashed a subpoena duces tecum concerning a freelance writer who

had taped an interview with the chief prosecution witness; (2) the defense

was unconstitutionally burdened when the trial court excluded evidence of

the writer's pecuniary interest; (3) the trial court erred in not allowing

evidence of prosecutorial misconduct on the basis of instructions to the

police to cease interviewing witnesses; (4) the trial court erred in not

allowing the defense to present extrinsic evidence of third-party culpability;

(5) the trial court’s refusal to allow evidence about the rape of Ford’s wife,

tape recordings of the prosecution’s key witness, and references to co-

defendant Von Villas hampered the defense; (6) the trial court’s failure to

allow evidence of specific acts of misconduct to impeach the prosecution’s

key witness was error; (7) jury misconduct occurred when the jury foreman

producing his own “spread sheet,” which was then used by the entire jury;

(8) the trial court’s failure to suppress a general warrant lacking in

specificity and particularity violated the Fourth and Fourteenth

Amendments; (9) the prosecution’s failure to preserve potentially favorable

evidence resulted in the violation of due process; (10) the trial court

prejudicially refused to instruct the jury about the inferences to be drawn

against the prosecution for loss of evidence seized pursuant to a warrant; and

(11) the trial court erroneously refused to instruct the jury that unanimity

was required as to each overt act of each conspiracy alleged. J.A. 43-46.

App. E2. In a separate document, Ford also admitted his

“possible failure to exhaust several issues.” J.A. 56-57. The

petition was accordingly dismissed without prejudice in a

judgment entered on September 12, 1997. Pet. App. E7. Again,

no appeal was filed. (The petitions filed in 1997 are collectively

referred to hereafter as the First Petitions). See J.A. 4.

After the First Petitions were dismissed, Ford

unsuccessfully sought relief in state court on his unexhausted

claims in both cases. See Pet. App. Al17-A18, A20.

On April 7, 1998, Ford returned to federal court and filed

a second petition challenging his conviction in the Weed Case.*

J.A. 84-103. In a judgment entered on June 30, 1998, the

district court dismissed the petition with prejudice as untimely

under AEDPA. Pet. App. C1-C9. A second petition

challenging Ford’s conviction in the Loguercio Case was filed

the same day as the Weed petition, and likewise dismissed with

prejudice as untimely in a judgment entered on July 27, 1998.

(The petitions filed in 1998 are collectively referred to hereafter

as the Second Petitions).” J.A. 104-20; see also Pet. App. B1-

B8.

Ford appealed the dismissals of the Second Petitions. The

Ninth Circuit consolidated the appeals and granted Ford’s

request for a certificate of appealability “on the question

3. In his second petition in the Weed Case, Ford realleged all of the

grounds from his first petition, and also alleged the following new grounds:

(1) the prosecution erroneously used testimony obtained from a drugged co-

conspirator; (2) the use of police agents to inculpate him violated the Fourth,

Fifth, Sixth, and Fourteenth Amendments; (3) the prosecution misstated

evidence, which violated the truth-in-evidence doctrine and his constitutional

rights; (4) judicial misfeasance, abuse of discretion, and nonfeasance

misdirected the jury and violated his rights to an impartial jury, due process,

and equal protection; and (5) ineffective assistance of counsel. J.A. 93-102.

4. Inhis second petition in the Loguercio Case, Ford realleged all of

the grounds from his first petition and also alleged that he was entitled to

relief because his trial and appellate counsel were constitutionally

ineffective. J.A. 113-19.

whether his federal habeas petitions were timely under

AEDPA’s one-year statute of limitations * * * *” Pet. App.

A21.

In a published decision authored by Judge Reinhardt and

joined by Judge Pregerson (with Judge Silverman dissenting),

the majority held that, because “[t]he district court did not

* * * inform Ford that it would not have the power to consider

his motions to stay the [first] petitions unless he opted to amend

them and dismiss the then-unexhausted claims,” Ford’s decision

“to have his timely-filed federal habeas petitions dismissed

without prejudice was an uninformed one * * * *” Pet. App.

A13-A15. The majority also held that the district court erred by

failing to advise Ford “that his federal claims would be time-

barred, absent cause for equitable tolling, upon his return to

federal court if he opted to dismiss the petitions ‘without

prejudice’ and return to state court to exhaust all of his claims.”

Pet. App. Al4. Finally, the majority held that, because the

dismissals of the First Petitions were therefore “improper,” the

claims that were included in the First Petitions and then

reasserted in the Second Petitions were not time-barred under

AEDPA, but “relate[d] back to and preserve[d] the filing date

of the initial petitions.” Pet. App. A15.

The majority vacated the district court’s dismissal of the

Second Petitions insofar as they contained claims originally

raised in the First Petitions, and remanded those claims for

reconsideration on the merits. Five claims newly raised in the

second petition filed in the Weed Case were remanded for

development of a factual record as to whether the statute of

limitations should be equitably tolled. Finally, the majority

affirmed the dismissal of two ineffective assistance of counsel

claims raised for the first time in the second petition filed in the

Loguercio Case. Pet. App. A40.

The Warden’s petition for rehearing with suggestion for

rehearing en banc in the Ninth Circuit was denied on May 15,

2003. Pet. App. Al3.

SUMMARY OF ARGUMENT

I. This Court has long held that district courts must

dismiss habeas petitions containing both exhausted and

unexhausted claims. Rose v. Lundy, 455 U.S. 509, 522 (1981);

see also Duncan v. Walker, 533 U.S. 167, 178-79 (2001). The

Ninth Circuit in this case ignored the dictates of Rose v. Lundy

by holding for the first time anywhere that the dismissal of a

mixed petition is “improper” and constitutes “prejudicial” error,

unless the district court informs a petitioner that it does “not

have the power to consider [any] motion[] to stay the petition[]

unless he opt[s] to amend [it] and dismiss the then-unexhausted

claims.” Pet. App. Al4. “Boldly going where no court has

gone before,” Pet. App. A42 (Silverman, J., dissenting), the

panel also required district courts to provide warnings about

AEDPA’s limitation period before dismissing a mixed petition.

District courts must now advise a petitioner “that his federal

claims would be time-barred, absent cause for equitable tolling,

upon his return to federal court if he opt[s] to dismiss the

petition{] ‘without prejudice’ and return to state court to exhaust

all of his claims.” Pet. App. Al4.

The requirements imposed by the Ninth Circuit promote

the goal of “stay and abeyance,” a procedure that is inimical to

both Rose v. Lundy and AEDPA. Under stay and abeyance, a

mixed petition may be filed, unexhausted claims dismissed, and

a stay of proceedings obtained for the purpose of exhausting the

dismissed claims in state court. Once the dismissed claims are

exhausted, they may be added to the stayed petition by way of

amendment, and are deemed to “relate back” to the original

petition, even though they otherwise would be time-barred.

This is contrary to AEDPA, which “toll[s] the limitation period

for the pursuit of state remedies [but] not during the pendency

of applications for federal review * * * *” Duncan v. Walker,

533 U.S. at 180.

The Ninth Circuit’s holding also undermines AEDPA’s

interest in finality “by creating more potential for delay in the

adjudication of federal law claims.” Duncan v. Walker, 533

U.S. at 180; see also In re Blodgett, 502 U.S. 236, 239 (1992).

Stay and abeyance encourages the filing of mixed petitions and

the subsequent addition of newly-exhausted but time-barred

claims; it thus “increases the risk of the very piecemeal

litigation that the exhaustion requirement is designed to

reduce.” Duncan v. Walker, 533 U.S. at 180; Slayton v. Smith,

404 U.S. 53 (1971) (per curiam) (disapproving the use of stay

and abeyance in federal habeas proceedings).

Stay and abeyance, with its attendant delay of federal

proceedings, contravenes this Court’s admonition that federal

courts have a “virtually unflagging obligation * * * to exercise

the jurisdiction given them.” Colorado River Water

Conservation Dist. v. United States, 424 U.S. 800, 817-18

(1976). In addition, it “fails to account sufficiently for

AEDPA’s clear purpose to encourage litigants to pursue claims

in state court prior to seeking federal collateral review.”

Duncan vy. Walker, 533 U.S. at 181 (citing 28 U.S.C. §§

2254(b), 2254(e)(2), & 2264(a)). And, any advisements

regarding AEDPA’s limitation period would unduly burden

district courts. If allowed to stand, the Ninth Circuit’s decision

would render AEDPA’s limitation period virtually irrelevant,

and reduce district courts to “a jurisdictional parking lot.”

Sterling v. Scott, 57 F.3d 451, 454 (CAS 1995).

II. In holding that the claims that were included in the

First Petitions and reasserted in the Second Petitions were not

time-barred under AEDPA, but “relate[d] back to and

preserve[d] the filing date of the initial petitions” pursuant to

Rule 15(c) of the Federal Rules of Civil Procedure, Pet. App.

A15, the Ninth Circuit erroneously concluded that the relation-

back doctrine applies to habeas proceedings.

Under Rule 1 1 of the Rules Governing Section 2254 Cases,

“(t]he Federal Rules of Civil Procedure, to the extent that they

are not inconsistent with these rules, may be applied, when

ee ee - -

appropriate, to petitions filed under these rules.” At the time of

its enactment, Rule 15(c) did not apply to habeas proceedings.

As the Advisory Committee Notes to Rule 15(c) state,

“{rJelation back is intimately connected with the policy of the

statute of limitations.” See Harris v. Nelson, 394 U.S. 286, 295

(1969) (the drafters’ intent with respect to the 1938 creation of

the Federal Rules of Civil Procedure “indicates nothing more

than a general and nonspecific understanding that the rules

would have very limited application to habeas corpus

proceedings’”’). Until the enactment of AEDPA, however, there

was no statutory limitation period governing habeas corpus

proceedings. Thus, to apply Rule 15(c) to habeas corpus cases

would be “inconsistent” with “the practice in such proceedings.”

Fed. R. Civ. P. 81(a)(2); see also Harris v. Nelson, 394 US. at

294 (“Habeas corpus practice in the federal courts has

conformed with civil practice only in a general sense’”’).

Even assuming the relation-back doctrine applies to habeas

proceedings, the majority’s interpretation of the doctrine would

in effect nullify the AEDPA limitation period. Rule 15(c)

provides that an amendment of a pleading relates back to the

date of the original pleading when “relation back is permitted by

the law that provides the statute of limitations applicable to the

action, or [4] * * * the claim or defense asserted in the amended

pleading arose out of the conduct, transaction, or occurrence

set forth or attempted to be set forth in the original

pleading * * * *” Building upon the errors discussed

previously, the majority held that, because the dismissals of the

First Petitions were “improper,” the claims that were included

in the First Petitions and then reasserted in the Second Petitions

were not time-barred under AEDPA, but “relate[d] back to and

preserve[d] the filing date of the initial petitions.” Pet. App.

AlS.

No court (other than Ford) has ever concluded that an

otherwise untimely habeas petition relates back toa prior habeas

petition in a proceeding that was dismissed and is no longer

pending. As the Fifth Circuit has cogently observed, such an

approach is “impractical,” because it “would eviscerate the

AEDPA limitations period and thwart one of AEDPA’s

principal purposes * * * *” Graham v. Johnson, 168 F.3d 762,

780 (CAS 1999). The Ninth Circuit’s interpretation of the

relation-back doctrine is inconsistent with habeas corpus

practice and amounts to a subversion of AEDPA’s limitation

period.

ARGUMENT

THE NINTH CIRCUIT ERRED IN HOLDING

THAT THE DISMISSAL OF A MIXED

PETITION IS IMPROPER ABSENT ADVICE

AND INFORMATION DESIGNED TO

EFFECTUATE STAY AND ABEYANCE

This Court has steadfastly held for over twenty years that

“a total exhaustion rule promotes comity and does not

unreasonably impair the prisoner’s right to relief.” Rose v.

Lundy, 455 U.S. at 522. Accordingly, “a district court must

dismiss habeas petitions containing both unexhausted and

exhausted claims.” /d. (emphasis added); see also id. at 518-19

(“A rigorously enforced total exhaustion rule will encourage

state prisoners to seek full relief first from the state courts, thus

giving those courts the first opportunity to review all claims of

constitutional error”); Coleman v. Thompson, 501 U.S. 722, 731

(1991) (“This Court has long held that a state prisoner’s federal

habeas petition should be dismissed if the prisoner has not

exhausted available state remedies as to any of his federal

claims”); Castille v. Peoples, 489 U.S. 346, 349 (1989)

(“Respondent’s habeas petition should have been dismissed if

state remedies had not been exhausted as to any of the federal

claims”); Teague v. Lane, 489 U.S. 288, 325 (1989) (Stevens,

J., concurring) (“In Rose v. Lundy, * * * the Court announced

that a habeas petition containing exhausted and unexhausted

claims must be dismissed”); Engle v. Isaac, 456 U.S. 107, 124

n.25 (1982) (“If [an unexhausted] claim were present, Rose v.

Lundy, * * * would mandate dismissal of the entire petition”).

In’ Duncan v. Walker, 533 U.S. at 167, this Court

reaffirmed those well-settled principles in a post-AEDPA

habeas proceeding. As stated by the Court, “(t]he exhaustion

requirement (set forth in AEDPA] ensures that the state courts

have the opportunity fully to consider federal-law challenges to

a state custodial judgment before the lower federal courts may

entertain a collateral attack upon that judgment.” Jd. at 178-79.

Duncan also noted that “{tJolling the limitation period for a

federal habeas petition that is dismissed without prejudice

would * * * create more opportunities for delay and piecemeal

litigation without advancing the goals.of comity and federalism

that the exhaustion requirement serves. We do not believe that

Congress designed the statute in this manner.” /d. at 180.

The Ninth Circuit in this case ignored the foregoing

authorities, and held for the first time anywhere that the

dismissal of a mixed petition is “improper” and constitutes

“prejudicial” error, unless the district court informs a petitioner

that it does “not have the power to consider [any] motion{] to

stay the petition{] unless he opt[s] to amend [it] and dismiss the

then-unexhausted claims.” Pet. App. Al4. In another first, the

panel also required district courts to provide warnings about

AEDPA’s limitation period before dismissing a mixed petition;

district courts must now advise a petitioner “that his federal

claims would be time-barred, absent cause for equitable tolling,

upon his return to federal court if he opt{s] to dismiss the

petition[] ‘without pre} udice’ and return to state court to exhaust

all of his claims.” Pet. App. Al4.

The advisements required by the Ninth Circuit are designed

to encourage the stay and abeyance of mixed petitions, a

procedure that contravenes Duncan v. Walker by permitting

AEDPA’s limitation period to be tolled during the pendency of

a federal habeas proceeding. Under stay and abeyance, a mixed

federal habeas petition may be filed, unexhausted claims

dismissed, and a stay of the proceeding obtained for the purpose

of exhausting the dismissed claims in state court. Once the

dismissed claims are exhausted, they may be added to the stayed

petition by way of amendment, and are deemed to relate back to

the original petition, even where exhaustion was commenced

after the expiration of AEDPA’s limitation period. As such,

stay and abeyance runs afoul of this Court’s pronouncements

that AEDPA’s limitation period is tolled only during “the

pursuit of state remedies and not during the pendency of

applications for federal review * * * *” Duncan v. Walker, 533

U.S. at 180 (emphasis added).

This case falls squarely within the confines of Rose v.

Lundy and Duncan v. Walker. Ford filed mixed First Petitions

and refused the district court’s invitation to dismiss his

unexhausted claims. Faced with that situation, “the district

court * * * did exactly what it was supposed to do: It dismissed

Ford’s mixed [first] petition{s] without prejudice.” Pet. App.

A40 (Silverman, J., dissenting).

The majority’s holding conflicts with Rose v. Lundy and

Duncan v. Walker, promotes the improper goal of stay and

abeyance, serves no purpose other than to subvert the design

and intent of AEDPA, and unduly burdens district courts.

A. The Ninth Circuit’s Procedure Conflicts With The

Total Exhaustion Rule Of Rose v. Lundy, Which

AEDPA Retained

1. The requirement that a habeas petitioner exhaust his

remedies prior to seeking relief in federal court is a long-

standing statutory mandate, founded upon principles of

federalism and comity, and designed to ensure the prompt

resolution of properly-brought claims. In Rose v. Lundy, 455

U.S. at 509, this Court noted that the prior version of 28 U.S.C.

§ 2254 “expressly require[d] the prisoner to exhaust ‘the

remedies available in the courts of the State,” id. at 519, and

that, consequently, “a district court must dismiss habeas

——_—

OT eee a

petitions containing both unexhausted and exhausted claims.”

Id. at 522. In addressing the lower court’s failure to enforce that

requirement, this Court stated:

* * * [Ojur holdings today reflect our

interpretation of a federal statute on the basis of its

language and legislative history, and consistent with

its underlying policies. There is no basis to believe

that today’s holdings will “complicate and delay” the

resolution of habeas petitions * * *, or will serve to

“trap the unwary pro se prisoner.” * * * On the

contrary, our interpretation of §§ 2254(b), (c)

provides a simple and clear instruction to potential

litigants: before you bring any claims to federal court,

be sure that you first have taken each one to state

court, © °°

Rather than increasing the burden on federal

courts, strict enforcement of the exhaustion

requirement will encourage habeas petitioners to

exhaust all of their claims in state court and to present

the federal court with a single habeas petition. To the

extent that the exhaustion requirement reduces piece-

meal litigation, both the courts and the prisoners

should benefit, for as a result the district court will be

more likely to review all of the prisoner’s claims in a

single proceeding, thus providing for a more focused

and thorough review.

Id. at 519-20.

A plurality nevertheless recognized that a total exhaustion

rule was not without consequences: “a prisoner who decides to

proceed only with his exhausted claims and deliberately sets

aside his unexhausted claims risks dismissal of subsequent

federal petitions.” Rose v. Lundy, 455 U.S. at 520-21 (plurality

op.).

AEDPA retains the exhaustion requirement of its

predecessor statute. Under 28 U.S.C. § 2254(b)(1)(A), habeas

relief is likewise prohibited unless “the applicant has exhausted

the remedies available in the courts of the State * * * *”

AEDPA departs from prior habeas jurisprudence, however, by

imposing a one-year limitation period under § 2244(d)(1) to “an

application for a writ of habeas corpus by a person in custody

pursuant to the judgment of a State court.” Subsection (d)(2)

provides tolling of the limitation period for “[t]he time during

which a properly filed application for State post-conviction or

other collateral review with respect to the pertinent judgment or

claim is pending * * * *”

In Duncan v. Walker, this Court described the interplay of

those provisions as follows:

* * * The exhaustion rule promotes comity in

that “‘it would be unseemly in our dual system of

government for a federal district court to upset a state

court conviction without an opportunity to the state

courts to correct a constitutional violation.’” * * *

The 1-year limitation period of § 2244(d)(1)

quite plainly serves the well-recognized interest in the

finality of state court judgments. * * * This provision

reduces the potential for delay on the road to finality

by restricting the time that a prospective federal

habeas petitioner has in which to seek federal habeas

review.

The tolling provision of § 2244(d)(2) balances

the interests served by the exhaustion requirement and

the limitation period. Section 2244(d)(2) promotes

the exhaustion of state remedies by protecting a state

prisoner’s ability later to apply for federal habeas

relief while state remedies are being pursued. At the

same time, the provision limits the harm to the

interest in finality by according tolling effect only to

“properly filed application(s] for State

post-conviction or other collateral review.”

By tolling the limitation period for the pursuit of

state remedies and not during the pendency of

applications for federal review, § 2244(d)(2) provides

a powerful incentive for litigants to exhaust all

available state remedies before proceeding in the

lower federal courts. * * *

Duncan v. Walker, 533 U.S. at 179-80.

Dismissal of mixed petitions remains the only proper

course of action under Rose v. Lundy, notwithstanding

AEDPA’s newly-imposed limitation period. Indeed, because

Rose v. Lundy was decided in 1981, and because AEDPA —

which was enacted in 1996 — retains the statutory exhaustion

requirement interpreted by that decision, Congress presumably

intended Rose v. Lundy to apply to post-AEDPA cases. See

Williams v. Taylor, 529 U.S. 420, 434 (2000) (“When the words

of the Court are used in a later statute governing the same

subject matter, it is respectful of Congress and of the Court’s

own processes to give the words the same meaning in the

absence of specific direction to the contrary”), see also United

States v. Sisson, 399 U.S. 267, 297-98 (1970) (“[T]he axiom

that courts should endeavor to give statutory language that

meaning that nurtures the policies underlying legislation is one

that guides us when circumstances not plainly covered by the

terms of a statute are subsumed by the underlying policies to

which Congress was committed”). Stated somewhat differently,

the “design” of AEDPA, Duncan v. Walker, 533 U.S. at 180, is

consistent with Rose v. Lundy’s total exhaustion rule. See 141

Cong. Rec. $7847 (daily ed. June 7, 1995) (statem nt of Sen.

Specter) (“[T]his bill does not abolish [the] exhaustion

requirement. Unli[k]e the resolution of this issue in the 1990

legislation, which passed the Senate, which eliminated the

requirement of exhaustion of State remedies, that provision is

not in this bill’).

Exhaustion is not a particularly difficult concept for a

petitioner to grasp. As this Court noted over twenty years ago:

* * * §§ 2254(b), (c) provide[] a simple and

clear instruction to potential litigants: before you

bring any claims to federal court, be sure that you first

have taken each one to state court. Just as pro se

petitioners have managed to use the federal habeas

machinery, so too should they be able to master this

straightforward exhaustion requirement.

Rose v. Lundy, 455 U.S. at 520.

In sum, AEDPA encourages the filing of exhausted federal

habeas petitions by tolling the limitation period for properly-

filed state petitions. “Section 2244(d)(1)’s limitation period and

§ 2244(d)(2)’s tolling provision, together with § 2254(b)’s

exhaustion requirement, encourage litigants first to exhaust all

state remedies and then to file their federal habeas petitions as

soon as possible.” Duncan v. Walker, 533 U.S. at 181

(emphasis in original). To countenance anything less than

complete exhaustion would be “out of step with this design,”

“result{ing] in “[a] diminution of statutory incentives to proceed

first in state court{, and] * * * the risk of the very piece-meal

litigation that the exhaustion requirement is designed to

reduce.” /d. at 180.

The possibility that a refiled petition might be time-barred

does not dictate a contrary result.* Congress has afforded

petitioners ample time — one year after the finality of their

5. At least one court of appeals has suggested that a petitioner may

avoid that consequence by simultaneously filing a “protective” petition in

state court containing claims that may be unexhausted. See Akins v. Kenney,

341 F.3d 681, 685-86 (CA8 2003). Under § 2244(d)(2), the state-court

filing would toll AEDPA’s limitation period, thereby allowing the petitioner

to refile in federal court in the event his initial federal petition is dismissed

as unexhausted. See id. Of course, dismissal may be avoided by filing a

fully-exhausted petition in the first place.

ee ee ee ee .

state-court convictions — to exhaust their claims and file a

federal habeas petition. Moreover, “[s]ection 2244(d)(2) * * *

{does] not toll the limitation period during the pendency of

* * * [a] federal habeas petition.” Duncan v. Walker, 533 US.

at 181-82. Therefore, even if Ford had elected to dismiss the

unexhausted claims from the First Petitions, the dismissed

claims would have been time-barred upon refiling. Cf: Rose v.

Lundy, 455 U.S. at 520 (plurality op.) (“By invoking this

procedure [dismissal of unexhausted claims], * * * the prisoner

would risk forfeiting consideration of his unexhausted claims in

federal court. * * * Thus a prisoner who decides to proceed only

with his exhausted claims and deliberately sets aside his

unexhausted claims risks dismissal of subsequent federal

petitions”). And, Ford’s “[1998] federal habeas petition(s]

contained claims different from those presented in his [1997]

petition[s],” Duncan v. Walker, $33 US. at 181, rendering the

consideration of the Second Petitions inappropriate under any

circumstances. See J.A. 35-47, 58-72, 84-103, 104-20.

2. It may be argued, as suggested by the plurality in Rose

v. Lundy, that unexhausted claims should be deleted from a

mixed petition in lieu of complete dismissal. See 455 U.S. at

520-21 (plurality op.). But even if such “purging” were

authorized, the Ninth Circuit’s prescribed advisements

promoting stay and abeyance would remain inconsistent with

this Court’s policy of “speedy” resolution of federal habeas

claims, as reflected in Rose v. Lundy. Stay and abeyance allows

a habeas proceeding to be placed “on hold” indefinitely pending

a petitioner's pursuit of state-court remedies. See In re

Blodgett, 502 U.S. at 239 (“The orders by the Ninth Circuit to

vacate submission of the case until completion of the state

collateral proceeding and then to hold the case in abeyance

pending filing and resolution of the third federal habeas

proceeding in the District Court raise the very concerns

regarding delay that were part of the rationale for this Court’s

decision{] in Rose v. Lundy’).

Stay and abeyance also frustrates Rose v. Lundy in other

ways. Although Rose contemplated outright dismissal of a

mixed petition, or perhaps the litigation of a petition purged of

unexhausted claims, stay and abeyance encourages the filing of

mixed petitions and eschews dismissal without obtaining the

benefit of expeditious federal review of the exhausted claims.

Instead, under stay and abeyance, the federal proceeding is “held

hostage” in favor of unexhausted claims that, under Rose v.

Lundy, should play no roie in federal review.

B. Stay And Abeyance Subverts The Design And Intent

Of AEDPA’s Limitation Period

The Ninth Circuit’s stay and abeyance procedure is also

contrary to the limitation period of AEDPA, which likewise

contemplates the expeditious resolution of habeas claims. As

set forth previously, 28 U.S.C. § 2244(d)(1) imposes a one-year

limitation period for “an application for a writ of habeas corpus

by a person in custody pursuant to the judgment of a State

court.” Subsection (d)(2) provides tolling for “[t]he time during

which a properly filed application for State post-conviction or

other collateral review with respect to the pertinent judgment or

claim is pending * * * *” Section 2244, as explained in Duncan

v. Walker, does not allow tolling of the limitation period during

the pendency of a federal petition. 533 U.S. at 181-82. Stay

and abeyance, however, illegitimately affords such tolling by

other means.

In a series of cases beginning with Fetterly v. Paskett, 997

F.2d 1295 (CA9 1993), the Ninth Circuit institutionalized a

practice whereby a mixed habeas petition may be filed,

unexhausted claims dismissed, and a stay of the proceeding

obtained for the purpose of exhausting the dismissed claims in

state court. Once the dismissed claims are exhausted, they may

be added to the stayed petition by way of amendment, and are

deemed to relate back to the original petition for timeliness

purposes. See, e.g., James v. Pliler, 269 F.3d 1124, 1126-27

a ee

(CA9 2001); James v. Giles, 221 F.3d 1074, 1078 (CA9 2000);

Calderon v. District Court (Taylor), 134 F.3d 981, 989 (CA9

1998); see also Kelly v. Small, 315 F.3d 1063, 1070 (CA9

2003); Neuschafer v. Whitley, 860 F.2d 1470, 1472 n.1 (CA9

1988); but see Taylor, 134 F.3d at 989 (holding that Neuschafer

did not apply to cases involving mixed federal habeas petitions).

The Ninth Circuit’s practice is designed to bypass the

limitation period of AEDPA, which “quite plainly serves the

well-recognized interest in the finality of state court judgments.”

Duncan v. Walker, 533 U.S. at 179 (citing Calderon v.

Thompson, 523 U.S. 538, 555-56 (1998)). As such, stay and

abeyance “undermine{s] the interest in finality by creating more

potential for delay in the adjudication of federal law claims.”

Duncan v. Walker, 533 U.S. at 180. Indeed, it “increase[s] the

risk of the very piecemeal litigation that the exhaustion

requirement is designed to reduce.” Id.; see also Carey v.

Saffold, 536 U.S. 214, 226 (2002) (discussing AEDPA’s

“statutory purpose of encouraging prompt filings in federal

court in order to protect the federal system from being forced to

hear stale claims”). No purpose is served by a stay of federal

habeas proceedings except to defy congressional intent and

subvert AEDPA’s limitation period. An open-ended stay to

allow petitioners to exhaust their state remedies would unduly

delay the ultimate determination of the issues and reward those,

like Ford, who disregard the plain language of AEDPA and file

admittedly mixed petitions.

This Court long ago disapproved of the practice of stay and

abeyance in habeas proceedings. In Slayton v. Smith, 404 U.S.

at 53, the district court summarily dismissed a mixed petition.

On appeal, the Fourth Circuit agreed that state remedies had not

been exhausted, but vacated the district court’s judgment and

remanded for further proceedings with instructions to stay the

case until the petitioner had sought relief in state court. /d. In

rejecting that procedure, this Court held:

The Court of Appeals’ form of “abstention” is

perhaps technically consistent with the statutory

prohibition against issuing the writ where state

remedies have not been exhausted. 28 U.S.C. § 2254.

But, having determined that state remedies had not

been exhausted, the Court of Appeals would have

better served the policy of the statute had it avoided

any implication as to the merits of so delicate a

subject. Further, absent special circumstances, cf.

Nelson v. George, 399 U.S. 224 (1970), Wade v.

Wilson, 396 U.S. 282 (1970), rather than ordering

retention of the case on the District Court’s docket,

the Court of Appeals should simply have vacated the

judgment of the lower court and directed dismissal of

the petition for failure to exhaust state remedies.

Id. at 53-54.

Stay and abeyance has an even greater potential for

mischief in capital federal habeas cases, where the incentive to

“obtain{] speedy federal relief,” Rose v. Lundy, 455 U.S. at 520

(plurality op.), is largely absent. See Woodford v. Garceau, 538

U.S. 202, 206 (2003) (“Congress enacted AEDPA to reduce

delays in the execution of state and federal criminal sentences,

particularly in capital cases, * * * and ‘to further the principles

of comity, finality, and federalism’ * * * *”’) (quoting Williams

v. Taylor, 529 U.S. at 436); see also 141 Cong. Rec. $7804

(daily ed. June 7, 1995) (statement of Sen. Specter) (“[I]n the

current context in which habeas corpus appeals now run for as

long as a couple of decades, the deterrent effect of capital

punishment has been virtually eliminated”).

eile We

Stay and abeyance contravenes this Court’s admonition

that federal courts have a “virtually unflagging obligation * * *

to exercise the jurisdiction given them.” Colorado River Water

Conservation Dist. v. United States, 424 U.S. at 817-18; see

also Quackenbush v. Allstate Ins. Co., 517 U.S. 706, 716

(1996); McCarthy v. Madigan, 503 U.S. 140, 146 (1992); In re

Blodgett, 502 U.S. at 239-40. If allowed to stand, the majority’s

holding would render AEDPA’s limitation period virtually

irrelevant, and reduce district courts to what one appellate court

has aptly described as “a jurisdictional parking lot.” Sterling v.

Scott, 57 F.3d at 454.

C. The Ninth Circuit’s Advisement Requirement

Regarding AEDPA’s Limitation Period Is Unduly

Burdensome, Will Breed New Disputes, And Threatens

To Blur The Distinction Between Impartial Decision-

Making And Advocacy

As explained previously, the Ninth Circuit’s advisement

requirements regarding stay and abeyance and AEDPA’s

limitation period are inappropriate, because they promote a

procedure that runs afoul of Rose v. Lundy and AEDPA.

With respect to the limitation-period advisement,

moreover, the Ninth Circuit’s requirement is unduly

burdensome and risks further disputes where subsequent

developments reveal the district court’s admonitions to have

been incorrect. Rule 47(b) of the Federal Rules of Appellate

Procedure provides that “[a] court of appeals may regulate

practice in a particular case in any manner consistent with

federal laws, these rules, and local rules of the circuit. * * *” In

United States v. Hasting, 461 U.S. 499, 505-06 (1983), this

Court stated:

“(GJuided by considerations of justice,” McNabb

v. United States, 318 U.S. 332, 341 (1943), and in the

exercise of supervisory powers, federal courts may,

within limits, formulate procedural rules not

specifically required by the Constitution or the

Congress. The purposes underlying use of the

supervisory powers are threefold: to implement a

remedy for violation of recognized rights, McNabb,

supra, at 340; Rea v. United States, 350 U.S. 214,

217 (1956); to preserve judicial integrity by ensuring

that a conviction rests on appropriate considerations

validly before the jury, McNabb, supra, at 345; Elkins

v. United States, 364 U.S. 206, 222 (1960); and

finally, as a remedy designed to deter illegal conduct,

United States v. Payner, 447 U.S. 727, 735-736, n. 8

(1980).

Id. at 505.

The majority’s advisement requirement in this case,

however, does not “give appropriate — if, indeed, any —

weight to these relevant interests.” United States v. Hasting,

461 U.S. at 507. As the dissent below observed, the majority

“fails to take account of the fact that the district judge will

almost never be able to tell, solely from the face of the petition,

that the statute of limitations has expired.” Pet. App. A42

(Silverman, J., dissenting). Other problems abound:

* * * Numerous factors can affect a petitioner’s

decision to delete unexhausted claims and proceed

with an amended petition, rather than accept dismissal

without prejudice so that unexhausted claims can be

pursued in state court. For example, the

meritoriousness of the unexhausted claims is an

extremely important factor; so is the fact that the

failure-to-exhaust might foreclose those claims

forever. The availability of key witnesses is another

factor. The statute of limitations is only one element

in the equation, and a fact-intensive one at that.

Leaving aside the question of the proper role of the

court as a neutral arbiter, the district court simply is in

no position to identify all of the considerations that

pertain. I respectfully suggest that it is the office of

the court to fairly and impartially decide the case

before it, not to act as the petitioner’s paraiegal.

Pet. App. A43 (Silverman, J., dissenting).

Indeed, depending upon matters not before the district

court, any advice regarding AEDPA’s limitation period might

prove to be wrong and misléad the petitioner into a

disadvantageous course of action. This Court has never

required any warnings or advisements regarding AEDPA’s

limitation period, nor has it ever held that their absence renders

the dismissal of a mixed petition erroneous. See Duncan v.

Walker, 533 U.S. at 178-79; Rose v. Lundy, 455 U.S. at 522.

The majority’s holding imposes an unwarranted burden upon

district courts, creates the potential for misadvisement, and in

effect compels district courts to act as advocates.

D. The Ninth Circuit Erroneously Concluded That The

District Court’s Dismissal Of The Mixed First Petitions

Was Improper

Even assuming any stay and abeyance advisements would

have been appropriate in this case, the advisements actually

given were sufficient. The district court generously allowed

Ford to amend the First Petitions to delete the unexhausted

claims, rather than dismiss the entire petitions. Ford declined,

however, to take up that offer. See Pet. App. D1 -D2, E2-E3; see

also J.A. 56-57, 75-78. As pointed out by the dissent below,

“(t]he district court correctly offered [Ford] the option of either

amending the petition[s] by deleting the unexhausted claims and

proceeding with only those that had been exhausted, or suffering

the dismissal of his entire petition[s] without prejudice.” Pet.

App. A40 (Silverman, J., dissenting). The district court

dismissed the First Petitions only after Ford failed to state a

choice in the Weed Case, and elected to dismiss his petition in

the Loguercio Case. Pet. App. D2, DS, E2, E7.

Although the dismissals occurred after the expiration of

AEDPA’s limitation period, see Pet. App. D5, E7, tolling

(“equitable” or otherwise) would not be warranted, because

Ford was given the option of dismissing his unexhausted claims

as an alternative to complete dismissal. Compare Duncan v.

Walker, 533 U.S. at 184 (Stevens, J., concurring) (“[E]quitable

considerations may make it appropriate for federal courts

to * * * toll[] AEDPA’s statute of limitations for unexhausted

federal habeas petitions”), with Rose v. Lundy, 455 U.S. at 520

(plurality op.) ({“A petitioner] can always amend the petition to

delete the unexhausted claims, rather than returning to state

court to exhaust all of his claims”). Nothing more was required.

Cf. Castro v. United States, 124 S. Ct. 786, 789-93 (2003)

(district court unilaterally recharacterized petitioner’s motion in

§ 2255 case without providing advisements regarding the

potential consequences of such recharacterization).

Il.

THE APPLICATION OF FEDERAL RULE OF

CIVIL PROCEDURE 15(c) TO HABEAS

PROCEEDINGS WOULD IN EFFECT

NULLIFY AEDPA’S LIMITATION PERIOD

The Ninth Circuit also held that, because the dismissals of

the First Petitions were “improper,” the claims that were

included in the First Petitions and then realleged in the Second

Petitions were not time-barred under AEDPA, but “relate(d]

back to and preserve[d] the filing date of the initial petitions.”

Pet. App. Al5. Application of the relation-back doctrine set

forth in Rule 15(c) of the Federal Rules of Civil Procedure,

however, would be inconsistent with congressional

understanding, as well as the clear design of AEDPA. The

panel’s interpretation of Rule 15(c) ignores legislative intent,

eh NT AE Oily Meme ON A ls at AA OA APO at > A me _ _

circumvents AEDPA’s limitation period, and conflicts with the

decisions of every other court to have considered this issue —

including three other Ninth Circuit panels.

A. The Relation-Back Doctrine Does Not Apply To

Habeas Proceedings

The Federal Rules of Civil Procedure (FRCP) do not

uniformly apply to habeas corpus cases. Even though habeas

corpus proceedings are characterized as “civil” (as opposed to

criminal) in nature, Browder v. Dir., Dep't of Corrs., 434 U.S.

257, 265 n.9, 269 (1978); Fisher v. Baker, 203 U.S. 174, 181

(1906), this Court has observed that such a “label is gross and

inexact.” Harris v. Nelson, 394 U.S. at 293-94.

FRCP 81(a)(2) provides that the FRCP applies to habeas

corpus cases “to the extent that the practice in such proceedings

is not set forth in statutes of the United States and has heretofore

conformed to the practice in civil actions.” Similarly, Rule 11

of the Rules Governing Section 2254 Cases provides that “[t}he

Federal Rules of Civil Procedure, to the extent that they are not

inconsistent with these rules, may be applied, when appropriate,

to petitions filed under these rules.” Rule 11, foll. 28 U.S.C. §

2254. Indeed, the Advisory Committee Notes to Rule 11 state

that “Rule 11 permits application of the civil rules only when it

would be appropriate to do so,” and warn that courts should not

“rigidly apply [FRCP] rules which would be inconsistent or

inequitable in the overall framework of habeas corpus.”

The question of whether application of a particular FRCP

rule to a habeas corpus case would be consistent with habeas

corpus practice is easily resolved when a particular habeas

corpus practice is specifically set forth in a statute or rule. Thus,

in Browder v. Dir., Dep't of Corrs., this Court concluded that

Rule 12(b)(6) of the FRCP, which allows the filing of a motion

to dismiss for failure to state a claim upon which relief may be

granted, does not apply in habeas corpus cases because “t]he

procedure for responding to the application for a writ of habeas

corpus * * * is set forth in the habeas corpus statutes, and under

Rule 81(a)(2), takes precedence over the Federal Rules.”® 434

US. at 269 n.14.

Likewise, in Pitchess v. Davis, 421 U.S. 482 (1975) (per

curiam), this Court held that FRCP Rule 60(b)(6), which

provides for relief from final judgment, does not apply in the

habeas corpus context. As this Court observed:

Respondent failed to exhaust available state

remedies on the claim which formed the vasis for the

unconditional writ, and he is entitled to no relief

based upon a claim with respect to which state

remedies have not been exhausted. Neither rule

60(b), 28 U.S.C. § 2254, nor the two read together,

permit a federal habeas court to maintain a continuing

supervision over a retrial conducted pursuant to a

conditional writ granted by the habeas court. * * *

Id. at 490.

: Harris v. Nelson is perhaps most directly on point. In

Harris, this Court was faced with the question of whether FRCP

Rule 33, which concerns the use of interrogatories for discovery

purposes in civil cases, applies to habeas corpus proceedings.

Initially, the Harris Court noted that habeas corpus proceedings

were “unique,” and that “[h]abeas corpus practice in the federal

courts has conformed with civil practice only in a general

sense.” 394 U.S. at 294. This Court further observed that the

drafters’ intent with respect to the 1938 creation of the FRCP

“indicates nothing more than a general and nonspecific

understanding that the rules would have very limited application

to habeas corpus proceedings.” Jd. at 295 (emphasis added).

6. This Court did find, however, based upon “the settled conformity

of habeas corpus and other civil proceedings with respect to time limits on

postjudgment relief,” that Rules 52 and 59 applied to habeas proceedings.

Browder v. Dir., Dep't of Corrs., 434 U.S. at 271.

“At the very least, it is clear that there was no intention to

extend to habeas corpus, as a matter of right, the broad

discovery provisions which, even in ordinary civil litigation,

were ‘one of the most significant innovations’ of

the new rules. * * *” Jd.

This Court concluded that the fundamental differences

between ordinary civil actions and habeas corpus proceedings

dictated that certain discovery tools provided for in the FRCP

should not apply in habeas proceedings:

* * * (I]t is difficult to believe that the draftsmen

of the Rules or Congress would have applied the

discovery rules without modification to habeas corpus

proceedings because their specific provisions are ill-

suited to the special problems and character of such

proceedings. For example, Rule 33, * * * provides

for written interrogatories to be served by any party

upon any “adverse party.” As the present case

illustrates, this would usually mean that the prisoner’s

interrogatories must be directed to the warden

although the warden wouid be unable to answer from

nal knowledge questions relating to petitioner’s

arrest and trial. Presumably the warden could solicit

answers from the appropriate officials and reply

“under oath,” as the rule requires; but the warden is

clearly not the kind of “adversary party” contemplated

by the discovery rules, and the result of their literal

application would be to invoke a procedure which is

circuitous, burdensome, and time consuming.

Harris v. Nelson, 394 U.S. at 296.

In sum, this Court held that Rule 33 does not apply to

habeas corpus proceedings because, “on conventional principles

of statutory instruction, [it could not be] properly conclude{d]

that the literal language or the intended effect of the Rules

indicates that this was within the purpose of the draftsmen or

the congressional understanding.” Harris v. Nelson, 394 U.S.

at 298. Similarly, there is nothing in AEDPA, congressional

intent, congressional understanding of federal habeas practice,

or even Rule 15(c) itself, to suggest that the relation-back

doctrine should apply to habeas proceedings.

1. Application Of Rule 15(c) To Habeas Proceedings

Would Be Inconsistent With The Design And

Intent Of AEDPA

Rule 15(c) applies only to proceedings that are governed by

a statute of limitations. See Fed. R. Civ. P. 15(c) (Advisory

Committee Notes) (“Relation back is intimately connected with

the policy of the statute of limitations”); Schiavone v. Fortune,

477 US. 21, 29 (1986) (applying relation-back doctrine to New

Jersey statute of limitations for libel actions); see also Percy v.

San Francisco Gen. Hosp., 841 F.2d. 975, 979 (CA9 1988). The

rationale for the relation-back doctrine may be found in the

purpose served by statutes of limitation governing ordinary civil

causes of action, which is to prevent the bringing of “stale”

claims. As this Court has stated:

Statutes of limitation, * * * in their conclusive

effects are designed to promote justice by preventing

surprises through the revival of claims that have been

allowed to slumber until evidence has been lost,

memories have faded, and witnesses have

disappeared. The theory is that even if one has a just

claim it is unjust not to put the adversary on notice to

defend within the period of limitation and that the

right to be free of stale claims in time comes to

prevail over the right to prosecute them.

Order of R.R. Tels. v. Ry. Express Agency, Inc., 321 U.S. 342,

348-49 (1944); Wilson v. Garcia, 471 U.S. 261, 271 (1985)

(“Just determinations of fact cannot be made when, because of

the passage of time, the memories of witnesses have faded or

evidence is lost”) see also Sierra Club v. Chevron U.S.A., Inc.,

834 F.2d 1517, 1523 (CA9 1987) (quoting Order of R.R. Tels.);

cf. Singletary v. Pennsylvania Dep't of Corrs., 266 F.3d 186,

193 (CA3 2001) (purpose of relation back is to ameliorate strict

application of the statute of limitation); Hill v. Shelander, 924

F.2d 1370, 1377 (CA7 1991) (purpose of relation back is to

permit amendments to pleadings when the statute of limitation

has expired).

In contrast, prior to AEDPA, there was no statute of

limitation for habeas filings; until the enactment of §

2244(d)(1), Rule 15(c) did not govern the filing of habeas

petitions because there was no need for newly-presented claims

to relate back to a previous filing. As such, “it is difficult to

believe that the draftsmen of the Rules or Congress would have

applied [Rule 15(c)] without modification to habeas corpus

proceedings.” See Harris v. Nelson, 394 U.S. at 296.

Moreover, AEDPA’s limitation period serves an entirely

different purpose from that of statutes of limitation governing

ordinary civil causes of action. The limitation period, and the

remainder of the provisions of AEDPA, were designed to

prevent federal habeas petitioners from unduly delaying the

finality of their state court judgments. As this Court has noted,

“(t]he interest in leaving concluded litigation in a state of

repose,”” free from “*further judicial revision,” has played a

defining role in shaping the scope of the writ. Teague v. Lane,

489 US. at 306 (O’Connor, J.); accord Butler v. McKeller, 494

US. 407, 412 (1990); see also Brecht v. Abrahamson, 507 U.S.

619, 633 (1993) (the distinction between direct and collateral

review of state criminal judgments has become so prominent

that it now “resounds throughout habeas jurisprudence”’).

Section 2254(e) provides further indication of Congress”

intent to expedite the resolution of habeas corpus cases. Now,

if a petitioner has “failed to develop the factual basis of a claim

in State court proceedings, the [federal] court shall not hold an

evidentiary hearing on the claim” unless certain conditions are

met.” And, while de novo review may have once been the

standard generally employed for purposes of habeas corpus, see

Norris v. Risley, 878 F.2d 1178, 1180 (CA9 1989), that is no

longer the case under amended § 2254(d). Absent enumerated

exceptions, federal courts must defer to state court adjudications

of federal constitutional claims when those claims are

presentedto the federal courts on habeas corpus.* See Williams

v. Taylor, 529 U.S. 362, 412 (2000).

Accordingly, in providing for a one-year limitation period

following the finality of a state-court conviction (plus any

tolling as set forth in AEDPA), Congress was not concerned

with the possibility that habeas petitioners might present stale

claims, that witnesses’ memories might fade, or that evidence

might be lost or destroyed; Rule 9(a) of the Rules Governing

Section 2254 Cases addresses those potential problems. Instead,

the one-year limitation period was enacted for the simple

purpose of ensuring that federal habeas corpus cases proceed in

7. Under AEDPA, a habeas petitioner is entitled to an evidentiary

hearing only where:

(A) the claim relies on (i) a new rule of constitutional law,

made retroactive to cases on collateral review by the Supreme

Court, that was previously unavailable; or (ii) a factual

predicate that could not have been previously discovered

through the exercise of due diligence; and

(B) the facts underlying the claim would be sufficient to

establish by clear and convincing evidence that but for

constitutional error, no reasonable factfinder would have found

the applicant guilty of the underlying offense.

28 U.S.C. § 2254(e)(2).

8. Deference is required to state court adjudications of federal claims

unless that adjudication (1) “resulted in a decision that was contrary to, or

involved an unreasonable application of, clearly established Federal law, as

determined by the Supreme Court of the United States,” or (2) “resulted in

a decision that was based on an unreasonable determination of the facts in

light of the evidence presented in the State court proceeding.” 28 U.S.C. §§

2254(d)(1), (2).

a timely fashion. By the time a would-be habeas petitioner

reaches the federal court, a full state investigation, trial,

appellate — and, in many cases, habeas — review will likely

have taken place. Application of the relation-back doctrine

would be inconsistent with AEDPA’s design to expedite the

federal habeas process.

The legislative history of AEDPA reflects that design. On

March 24, 1995, Senator Arlen Specter (Pennsylvania)

introduced S. 623, a bill seeking federal habeas corpus reform.

141 Cong. Rec. $4590-96 (daily ed. Mar. 24, 1995). Senator

Specter explained that reform was sorely needed because “[t}he

great writ of habeas corpus” was being “applied in a crazy-quilt

manner with virtually endless appeals that deny justice to

victims and defendants alike, making a mockery of the judicial

system.” Jd. at $4591. Senator Orrin Hatch (Utah), co-sponsor

of S. 623, likewise emphasized the need for the bill. He warned

that meaningful reform was necessary to “stop repeated assaults

upon fair and valid State convictions through spurious petitions

filed in Federal court” and described the bill as an means of

protecting “constitutional guarantees of freedom from illegal

punishment, while at the same time ensuring that lawfully

convicted criminals will not be able to twist the criminal justice

system to their own advantage.” Id. at $4596. The

Specter/Hatch habeas corpus reform bill was subsequently

passed by the Senate as Title VI of S. 735, the Comprehensive

Terrorism Prevention Act. 141 Cong. Rec. $7803, $7857,

S7868-71 (daily ed. June 7, 1995).

On March 13, 1996, Representative Henry Hyde (Illinois)

presented H.R. 2703, the Comprehensive Antiterrorism Act of

1995, to the full House for debate. 142 Cong. Rec. H2137

(daily ed. Mar. 13, 1996). Like S. 735, H.R. 2703 contained

provisions for habeas corpus reform, including 2 limitation

period. And like Senators Specter and Hatch, Representative

Hyde explained that such reform was necessary to preempt the

“abuse of habeas corpus” by convicted capital murderers whose

sole aim is to “stretch it out.” 142 Cong. Rec. H2182, H2184,

H2249 (daily eds. Mar. 13-14, 1996).

Representative Bill McCollum (Florida), a co-proponent of

the bill, expressed a similar sentiment, explaining that, by

allowing death row inmates into federal court “one time and one

time only,” the bill would end “the seemingly endless appeals”

and “15- and 20-year delays of carrying out * * * the death

penalty.” 142 Cong. Rec. H2143 (daily ed. Mar. 13, 1996).

And Representative Bob Barr (Georgia), yet another proponent

of H.R. 2703, described the bill as the means to “stop the

endless, pointless, and abusive delays currently available to

those in our State court system to avoid the carrying out of a

death sentence,” by placing “reasonable time limits on the use

of the Federal habeas corpus provision.” Jd. at H2168. As

Representative Barr emphasized, “There have to be reasonable

limits. There has to be a reasonable balance, else it will be an

unreasonable system and wreak havoc on the American people

as we have seen decade after decade.” Jd. The House of

Representatives subsequently passed S. 735 as amended by H.R.

2703. 142 Cong. Rec. H2267, H2288, H2304 (daily ed. Mar.

14, 1996).

Thereafter, both Houses of Congress adopted the

Conference Report on S. 735, renamed the Antiterrorism and

Effective Death Penalty Act of 1996. H.R. Conf. Rep. No. 104,

104th Cong., 2d Sess. (1996); 142 Cong. Rec. $3477 (daily ed.

Apr. 17, 1996); 142 Cong. Rec. H3618 (daily ed. Apr. 18,

1996). The Conference Report explains that Title 1 of AEDPA

“incorporates reforms to curb the abuse of the statutory writ of

habeas corpus, and to address the acute problems of unnecessary

delay and abuse in capital cases.” H.R. Conf. Rep. No. 104,

reprinted in 1996 U.S.C.C.A.N. 944.

On April 24, 1996, President Clinton signed AEDPA into

law, acknowledging that “[flor too long, and in too many cases,

endless death row appeals have stood in the way of justice being

served,” and expressing hope that AEDPA would facilitate his

long-standing efforts to “streamline Federal appeals for

convicted criminals sentenced to the death penalty.” Pub. L.

No. 104-132; 1996 U.S.C.C.A.N. (110 Stat.) 961-1.

But the purpose of habeas corpus reform was not limited

to the death penalty arena. See 141 Cong. Rec. $7803 (daily ed.

June 7, 1995) (statement of Sen. Specter) (“{It is] time to move

ahead with legislation to reform habeas corpus in all cases’’).

The provisions of Chapter 153 of Title 28 of the United States

Code apply to all habeas corpus cases, and those provisions

‘Ilustrate with utter clarity Congress’ intent to expedite the

habeas corpus process in capital and non-capital cases alike.

See Woodford v. Garceau, 538 U.S. at 206.

2. Application Of Rule 15(c) To Habeas Proceedings

Would Improperly Permit The Consideration of

Time-Barred Claims

Application of the relation-back doctrine to habeas

proceedings would also improperly permit the consideration of

newly-exhausted claims that were pursued in state court after

the expiration of AEDPA’s limitation period. Under §

2244(d)(2), tolling of AEDPA’s limitation period occurs while

“a properly filed application for State post-conviction or other

collateral review with respect to the pertinent judgment or claim

is pending * * * *” Tolling does not occur, however, during the

pendency of federal habeas proceedings. See Duncan v. Walker,

533 U.S. at 180. The reason for that distinction is clear: “Tby]

tolling the limitation period for the pursuit of state remedies and

not during the pendency of applications for federal review, §

2244(d)(2) provides a powerful incentive for litigants to exhaust

all available state remedies before proceeding in the lower

federal courts * * * *” Id.

Relation back, on the other hand, provides a powerful

incentive for litigants to do the very opposite. Indeed, relation

back would validate a process consisting of the filing of a mixed

petition, the dismissal of unexhausted claims, and the eventual

consideration of such claims following exhaustion, even where

the commencement of exhaustion proceedings occurred after

the expiration of AEDPA’s limitation period; the filing of a

federal habeas petition would, for all intents and purposes. toll

the limitation period. Compare Duncan v. Walker, 533 U.S. at

180 (“Tolling the limitation period for a federal habeas

petition * * * would * * * create more opportunities for delay

and piecemeal litigation without advancing the goals of comity

and federalism that the exhaustion requirement serves. We do

not believe that Congress designed the statute in this manner’’).

Thus, as long as a habeas petitioner files a timely petition

containing just one exhausted claim, any unexhausted claims

alleged in the petition would also be considered timely (even if

the eventual pursuit of state remedies was nof) through relation

back. Application of the relation-back doctrine under such

circumstances would result in the “tail wagging the dog.””

Williams v. United States, 401 U.S. 646, 659 (1971); see also

Rosales-Garcia v. Holland, 322 U.S. 386, 420 (CA6 2003)

(Boggs, J., dissenting) (discussing restrictions on the detention

of removable aliens under the Illegal Immigration Reform and

Immigrant Responsibility Act of 1996).

B. Even Assuming The Relation-Back Doctrine Applies

To Habeas Proceedings, Application Of The Doctrine

In The Manner Employed By The Ninth Circuit Was

Improper

As set forth previously, the majority in this case held that

because the dismissals of the First Petitions were “improper,”

the claims that were included in the First Petitions and then

9. Moreover, some courts have permitted almost limitless amendment

and relation back by defining the terms “conduct, transaction, or

occurrence,” as set forth in Rule 15(c), at a meaningless level of generality,

such as “({the] criminal proceeding.” Compare Elizey v. United States, 324

F.3d 521, 525-27 (CA7 2003) with Davenport v. United States, 217 F.3d

1341, 1344-46 (CA11 2001) (and cases cited therein).

reasserted in the Second Petitions were not time-barred under

AEDPA, but “relate{d] back to and preserve(d] the filing date

of the initial petitions.” Pet. App. Al5.

No other court has ever held that an otherwise untimely

habeas petition relates back to a prior habeas petition in a

proceeding that was dismissed and is no longer pending.

Indeed, at least six other circuit courts of appeals have expressly

declined to apply the relation-back doctrine in that manner. See,

e.g., Neverson v. Bissonnette, 261 F.3d 120, 126 (CA1 2001)

(relation-back doctrine did not apply where the dismissal of

initial habeas proceeding left “nothing to which Petition No. 2

could relate back”); see also Newell v. Hanks, 283 F.3d 827,

834 (CA7 2002); Marsh v. Soares, 223 F.3d 1217, 1219-20

(CA10 2000); Warren v. Garvin, 219 F.3d 111, 113 (CA2

2000); Nyland v. Moore, 216 F.3d 1264, 1266 (CA11 2000);

Jones v. Morton, 195 F.3d 153, 160-61 (CA3 1999); cf. Hunt v.

Hopkins, 266 F.3d 934, 936-37 (CA8 2001) (amended petition

related back to prior petition in same proceeding because action

had not been dismissed). The majority’s holding also conflicts

with other Ninth Circuit precedent. See, e.g., Green v. White,

223 F.3d 1001, 1003 (CA9 2000) (“A second habeas petition

does not relate back to a first habeas petition when the first

habeas petition was dismissed for failure to exhaust state

remedies”); Van Tran v. Lindsey, 212 F.3d 1143, 1148 (CA9

2000) (same); Henry v. Lungren, 164 F.3d 1240, 1241 (CA9

1999) (same).

Moreover, Rule 15(c) by its very terms applies only to

“(ajn amendment of a pleading”; because the Second Petitions

did not constitute “amendment{s]” of the First Petitions, but

were instead separate and distinct proceedings, relation back

would not be appropriate under any circumstances.

The potential impact of the majority’s holding ~ is

enormous: habeas petitions filed long after the expiration of

AEDPA’s limitation period would be rendered timely through

relation back to a prior petition in a different proceeding, even

though that proceeding had been dismissed and was no longer

pending. As the Fifth Circuit stated in rejecting such an

approach:

[I]f § 2244(d) were interpreted as Petitioner

argues, the result would be impractical. A habeas

petitioner could file a non-exhausted application in

federal court within the limitations period and suffer

a dismissal without prejudice. He could then wait

decades to exhaust his state court remedies and could

also wait decades after exhausting his state remedies

before returning to federal court to “continue” his

federal remedy, without running afoul of the statute of

limitations.

* * * Construing an application filed after a

previous application is dismissed without prejudice as

a continuation of the first application for all purposes

would eviscerate the AEDPA limitations period and

thwart one of AEDPA’s principal purposes. * * *

Graham v. Johnson, 168 F.3d at 780 (quoting in part the district

court’s decision dismissing a second habeas petition as

untimely).

The majority’s holding constitutes an unwarranted and ill-

advised expansion of the relation-back doctrine, and in effect

nullifies AEDPA’s limitation period.

CONCLUSION

The judgment of the court of appeals should be reversed.

Dated: February 23, 2004

Respectfully submitted,

BILL LOCKYER

Attorney General of the State of California

MANUEL M. MEDEIROS

State Solicitor General

ROBERT R. ANDERSON

Chief Assistant Attorney General

PAMELA C. HAMANAKA

Senior Assistant Attorney General

DONALD E. DE NICOLA

Deputy Attorney General

KENNETH C. BYRNE

Supervising Deputy Attorney General

*PAUL M. ROADARMEL JR.

Deputy Attorney General

*Counsel of Record

Counsel for Petitioner

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