Amicus Curiae Brief — Mayle v. Felix

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No. 04-563

In the Supreme Court of the United States

DENEICE A. MAYLE, WARDEN, PETITIONER

L.

JACOBY LEE FELIX

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BRIEF FOR THE UNITED STATES

AS AMICUS CURIAE SUPPORTING PETITIONER

PAUL D. CLEMENT

Acting Solicitor General

Counsel of Record

CHRISTOPHER A. WRAY

Assistant Attorney General

MICHAEL R. DREEBEN

Deputy Solicitor General

LISA S. BLATT

Assistant to the Solicitor

General

RICHARD A. FRIEDMAN

Attorney

Department of Justice

Washington, D.C. 20530-0001

(202) 514-2217

QUESTION PRESENTED

Whether, under Federal Rule of Civil Procedure

15(c)(2), an amended habeas petition that is filed after

the one-year limitation period under 28 U.S.C.

2244(d)(1) relates back to the date of an original timely

filed habeas petition, simply because the amended

petition asserts claims arising from the same trial an

conviction that the prisoner attacked in the original

petition.

(I)

TABLE OF CONTENTS

Interest of the United States

Relevant statutory provisions

Statement

Summary of argument

Argument:

An amended post-conviction pleading relates back

to an original pleading when the amended pleading

arises from the conduct, transaction, or occurrence

that is the basis for relief set forth in th > original

pleading 10

A. Federal Rule 15(c)(2) permits relation back

in post-conviction proceedings when an

amended claim arises from the grounds for

relief and supporting facts that are required

to be set forth in the original pleading 11

B. The court of appeals interpretation of Rule

1516 ) conflicts with the purposes of AEDPA's

one-year time limit 16

C. The court of appeals’ holding conflicts with

the notice principle of Rule 15(c)(2) 2

Conclusion 27

Appendix la

mee

TABLE OF AUTHORITIES

Cases:

Anthony v. Cambra, 236 F 3d 568 (9th Cir. 2000),

cert. denied, 533 U.S. 941 (2001) 24

Baldwin County Welcome Ctr. v. Brown, 466 US.

| 147 (1984) 9, 22, 25

t Baldwin v. Reese, 124 S. Ct. 1347 (2004) 22

| Brannigan v. United States, 249 F 3d 584 (7th Cir.),

cert. denied, 534 U.S. 874 (2001) 26

Becker v. Montgomery, 532 U.S. 757 (2000) 15

(IIT)

IV

*

Cases—Continued: Page

Cases—Continued:

Calderon v. Thompson, 523 U.S. 538 (1988) 21 -

Carey v. Saffold, 536 U.S. 214 (2002) 22 United States v. Hicks, 283 F 3d 380 (D.C. Cir.

Chavez v. Martinez, 538 U.S. 760 (2003) 15 2002) 7, 15, 17, 24

Conley v. Gibson, 355 U.S. 41 (1957) 22,25 United States v. Pittman, 209 F 3d 314 (4th Cir.

Davenport v. United States, 217 F.3d 1341 (11th 2000) 7, 11, 17, 18

Cir. 2000), cert. denied, 52 U.S. 907 (2001) 7, 18 Williams v. Taylor, 529 U.S. 362 (2000) 16

Duncan v. Walker, 533 U.S. 167 (2001) 16, 18 Woodford v. Garceau, 538 U.S. 202 (2003). 12. 16,22

Edelman v. Lynchburg Coll., 535 U.S. 106 (2002) .......... 15 Woodward v. Williams, 263 F.3d 1135 (10th Cir.

Ellzey v. United States, 324 F 3d 521 (7th Cir. 2001), cert. denied, 535 U.S. 973 (2002) 2

2003) 6, 20, 21, 25 Statutes and rules:

Engle v. Isaac, 456 US. 107 (1982) 21,22

Felker v. Turpin, 518 U.S. 651 (1996) 26 Act of Sept. 28, 1976, Pub. L. No. 94-426, 90 Stat. 1334... 13

Fama v. Commissioner of Corr. Servs.,

Antiterrorism and Effective Death Penalty Act of 1996,

Pub. L. No. 104-132, Tit. 1, 110 Stat. 1214:

235 F Ad 804 (2d Cir. 2000) 2

Foman v. Davis, 371 U.S. 178 (1962) 12, 21 — — L

Johnson v. United States, 196 F 3d 802 (7th Cir. 28 U.S.C. 2244(b\(1) 27

1999) 20 2244(b

McNeil v. Wisconsin, 501 U.S. 171 (1991) 15 — — — 5 9

Missouri, Kan. & Ter Ry. v. Wulf, 226 U.S. 570 | 28 U.S.C. 2244(dX1) 1, 2,3, 10

(1913) 23 244

New York Cent. & HR. R. v. Kinney, — — — — —

260 U S. 340 (1922) 23 28 U.S.C. 2242 : 11,14

Parklane Hosiery Co. v. Shore, 439 U.S. 322 28 U.S.C. 2254 14

(1979) 26

Pitchess v. Davis, 421 U.S. 482 (1975) a ey yy paint

Rotella v. Wood, 528 U.S. 549 (2000) 21 Rule 15. 2.21

Scarborough v. Principi, 124 S. Ct. 1856 (2004). 22.23 Rule 15) 11. 12, 20, 21

Schiavone v. Fortune, 477 U.S. 21 (1986) 25 Rule 15(e) 6, 8, 11, 12, 14, 20, 25

Schlup v. Delo, 513 U.S. 298 (1995) 22 Rule 15(¢2) passim

Smith v. Murray, 477 US. 527 (1986) 21 Rule 60(b) 13

Tiller v. Atlantic Coast Line R.R., 323 U.S. 574 Rule 81(aX2) 12

(1945) 23 Crim. P. ANN

United States v. Duffus, 173 F 3d 333 (3d Cir.), — —— 0

cert. denied, 528 U.S. 866 (1999) 7, 17, 18, 21 Rule 2 2

United States v. Espinoza-Saenz, 235 F 3d 501 Rule Ae) 13

(10th Cir. 2000) 7. 18

VI

- Rules—Continued: Page

Rule Ae) 8,14

Rule Ac 2) 8,14

Rule 2(d) 14

Rule Ae) 17

Rule 11 12

Rules Governing Section 2255 Proceedings:

Rule Abu) 8,14

Rule Ab) 8,14

Rule Ac) 14

Rule 2(d) 17

Rule 12 12

Miscellaneous:

Bureau of Justice Statistics, U.S. Dep't of Justice,

Federal Habeas Corpus Review (1995) 19

6A Charles A. Wright, et al., Federal Practice and

Procedure: Civil 2d (1990) 23,24

H.R. Rep. No. 1471, 94th Cong., 2d Sess. (1976 13

In the Supreme Court of the United States

No. 04-563

DENEICE A. MAYLE, WARDEN, PETITIONER

v.

JACOBY LEE FELIX

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BRIEF FOR THE UNITED STATES

AS AMICUS CURIAE SUPPORTING PETITIONER

INTEREST OF THE UNITED STATES

The court of appeals held that a state prisoner’s

amended habeas petition that is filed after the one-year

limitation period under 28 U.S.C. 2244(d)(1) relates

back to the filing of an original timely filed habeas

petition under Federal Rule of Civil Procedure 15002),

simply because the amended petition was based on

claims arising from the same trial and conviction under

attack in the original petition. A similar one-year

limitation period applies to collateral challenges to

federal convictions under 28 U.S.C. 2255 J 6, and the

lower courts have held that the doctrine of relation

back applies equally to proceedings under Section 2254

and under Section 2255. E.g., Pet. App. A4 n.1;

(1)

2

Woodward v. Williams, 263 F.3d 1135, 1142 (10th Cir.

2001), cert. denied, 535 U.S. 973 (2002); Fama v. Com-

missioner of Corr. Servs., 235 F.3d 804, 816 (2d Cir.

2000). Because the Court’s ruling will apply o col-

lateral attacks on federal criminal judgments, the

United States has a substantial interest in the outcome

of this case.

RELEVANT STATUTORY PROVISIONS

The relevant provisions of 28 U.S.C. 2244, Rule 2 of

the Rules Governing Section 2254 Cases, and Rule 15 of

the Federal Rules of Civil Procedure are set forth in an

appendix to the brief. App., infra, la-5a.

STATEMENT

Following a jury trial in California state court,

respondent was convicted of first degree murder and

sentenced to life imprisonment without the possibility

of parole. The California Court of Appeal affirmed and

the California Supreme Court denied review. Respon-

dent subsequently brought a timely petition for a writ

of habeas corpus in the United States District Court for

Eastern District of California. He later amended the

petition to add new claims after the expiration of the

one-year limitation period under 28 U.S.C. 2244(d)(1).

The district court dismissed the new claims as time-

barred. The United States Court of Appeals for the

winth Circuit reversed that dismissal, ruling that the

amended petition related back for statute of limitation

purposes to the date of respondent’s initial habeas

petition.

1. In 1995, respondent was convicted in California

state court of first degree murder and second degree

robbery of Richard Harper, and was sentenced to life

imprisonment without the possibility of parole. The

focus of the prosecution’s case at trial was a videotaped

3

interview given by Kenneth Williams in which Williams

reported to police the following events. On September

21, 1993, just before the robbery and murder of Harper,

Williams overheard respondent, who had an automatic

weapon, speaking with two other individuals, Lawson

and Curtis, about a plan to rob Harper to steal mari-

juana from him. Williams saw the three men go around

the corner. Two minutes later he heard six or seven

shots. Williams then observed respondent and Curtis

getting into and driving Harper’s vehicle. Williams

again saw the trio a short time later going through

Harper’s car. When Williams asked respondent

whether he shot Harper, respondent replied, “I think

so.” Pet. App. C5. Williams testified at trial but denied

having any memory of his interview with the police,

despite being shown videotaped excerpts of that

interview in front of the jury. Id. at C4.

Another witness also testified at trial that he over-

heard respondent state that a woman might have seen

respondent on the night of the robbery and that respon-

dent was “going back to smoke [shoot] her.” Pet. App.

C4. The State also introduced pre-trial statements to

police that were made by respondent and Lawson, who

each gave false or contradictery statements about their

activities during the evening of the robbery and

murder.

The California Court of Appeal affirmed respondent’s

conviction. The California Supreme Court declined

further review. Respondent’s conviction became final

on August 12, 1997. Pet. App. A5.

2. On May 8, 1998, within the one-year limitation

period for filing a petition for a writ of habeas corpus

under the Antiterrorism and Effective Death Penalty

Act of 1996 (AEDPA), 28 U.S.C. 2244(d)(1), respondent

filed in federal district court a pro se petition for a writ

1

of habeas corpus. The petition raised three elaims that

respondent had exhausted on direct appeal: that the

admission into evidence of Williams's videotaped testi-

mony violated respondent’s rights under the Confronta-

tion Clause of the Sixth Amendment; that the judge

had erred in instructing the jury; and that there was

insufficient evidence to support the conviction. Pet.

App. A5, G1-G7.

On May 29, 1998, a magistrate judge ordered the ap-

pointment of counsel. Pet. App. C6, H2. On August 11,

1998, the AEDPA one-year limitation period expired.

Id. at A5.

On January 28, 1999, five months after the expiration

of AEDPA’s time limit, respondent's counsel filed an

amended petition that reiterated his Confrontation

Clause claim but deleted the instructional error and

insufficient evidence claims. The amended petition also

contained two new claims: that the police used coercive

tactics during his pre-trial interrogation such that the

admission at trial of his pre-trial statements violated his

due process rights under the Fourteenth Amendment

and his right against self-incrimination under the Fifth

Amendment, and that respondent’s counsel was ineffec-

tive in failing to raise that coerced confession claim on

direct appeal. Pet. App. A5, C6, 14-119. The State

moved to dismiss the new claims for failure to exhaust,

but that motion was vacated at the request of the State

after respondent had exhausted the claims in state

court. Id. at C6-C7.

In February 2001, the magistrate judge issued find-

ings and recommendations concluding that the coerced

confession and ineffective-assistance-of-counsel claims

should be dismissed as time-barred, because the

amended petition raising those claims was not filed

until after the expiration of AEDPA’s one-year

5

limitation period. The magistrate judge observed that

Federal Rule of Civil Procedure 15, which governs the

amendment of pleadings, applies to habeas corpus

actions, but that Rule 15(c)(2) does not permit an

amended pleading to relate back to the date of the

original pleading unless “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.” Pet. App. C14. The

magistrate judge further explained that relation back

was not warranted in this case on the theory that the

original and amended claims “are based on the same

criminal conviction.” Id. at C16. Rather, the magis-

trate judge concluded, “(t]he claims * * * which

concern [respondent’s] allegedly involuntary state-

ments to police do not arise out of the same conduct,

transaction, or occurrence as the videotaped interroga-

tion of Kenneth Williams.” Jbid. Addressing respon-

dent’s timely Confrontation Clause on the merits, the

magistrate judge recommended that it be dismissed.

Id. at C18- C45.

In June 2002, the district court dismissed respon-

dent’s amended claims as time-barred and dismissed

respondent’s Confrontation Clause claim on the merits,

relying on the magistrate judge’s findings and recom-

mendations. Pet. App. B1-B3. The district court

subsequently issued a certificate of appealability for

both the Confrontation Clause and the amended claims.

Id. at A6.

3. A divided panel of the Ninth Circuit affirmed the

district court’s dismissal of respondent’s Confrontation

Clause claim but reversed the dismissal of his coerced

confession claim and remanded that claim to the district

court for further proceedings. Pet. App. Al-Al9. The

court of appeals recognized that the timeliness of the

6

coerced confession claim, which was raised in an

amended petition after the expiration of AEDPA’s one-

year time limit, turned on whether that claim arose

from the “conduct, transaction, or occurrence” set forth

in respondent’s original petition within the meaning of

Rule 15(c)(2)’s relation back rule. Pet. App. A4.

Holding that “the transaction or occurrence” raised in

respondent’s original habeas petition was the “trial and

conviction” under attack, the court of appeals concluded

that the amended petition related back to the filing of

the original petition. Id. at A4, A6, A7. In so holding,

the court of appeals expressed its agreement (id. at A7)

with the decision of the Seventh Circuit in Ellzey v.

United States, 324 F.3d 521, 526 (2003).

The Ninth Circuit reasoned that its holding was

supported by a “literal application” of Rule 15(c). Pet.

App. A6. The court also opined that respondent’s

original petition “brought his trial and conviction to the

attention of the State,” and thus had fairly put the

State on notice that respondent might amend his

petition to challenge other “allegedly unconstitutional

rulings at trial.” Id. at Al0. The Ninth Circuit dis-

agreed (id. at A8) with the majority of courts of appeals

that have concluded that construing “conduct, transac-

tion, or occurrence” to refer to a prisoner’s conviction

would impermissibly undermine AEDPA’s one-year

limit by invariably permitting expired claims to relate

The court of appeals did not explicitly rule on the timeliness of

respondent’s claim of ineffective assistance of counsel on appeal,

but the decision appears to have treated that claim as part

of respondent’s coerced confession claim because respondent’s

amended habeas petition combined the two theories as one ground

for relief from his conviction. Pet. App. 14-119.

t

F

4

*

+

7

back to a timely filed post-conviction pleading.’ The

court of appeals reasoned that “AEDPA * Still

requires the original petition to be filed within the one-

year period.” Ibid.

Judge Tallman dissented. Pet. App. Al3-A19. He

explained that to define “conduct, transaction, or

occurrence” under Rule 15(c)(2) “so broadly that any

claim stemming from pre-trial motions, the trial, or

sentencing relates back to a timely-filed habeas peti-

tion” would “obliterate[] AEDPA’s one year statute of

limitation.” Pet. App. Al3. In Judge Tallman’s view,

“(while an amendment offered to clarify or amplify the

facts already alleged in support of a timely claim may

relate back, an amendment that introduces a new legal

theory based on facts different from those underlying

the timely claim may not.” Id. at A18.

SUMMARY OF ARGUMENT

A prisoner cannot rely on the doctrine of relation

back, under Federal Rule of Civil Procedure 15(c)(2), to

render timely under the AEDPA’s limitation period an

otherwise untimely amendment to an original habeas

petition, when the amendment articulates new grounds

for relief and supporting facts that differ from those

alleged in the original petition.

A. Federal Rule of Civil Procedure 15(c)(2) permits

relation back of an otherwise untimely pleading when

“the claim * * * asserted in the amended pleading

arose out of the conduct, transaction, or occurrence set

2 See United States v. Hicks, 283 F.3d 380, 388 (D.C. Cir. 2002);

United States v. Espinoza-Saenz, 235 F.3d 501, 505 (10th Cir.

2000); Davenport v. United States, 217 F.3d 1341, 1346 (11th Cir.

2000), cert. denied, 532 U.S. 907 (2001); United States v. Pittman,

209 F.3d 314, 318 (4th Cir. 2000); United States v. Duffus, 174 F.3d

333, 337-338 (3d Cir.), cert. denied, 528 U.S. 866 (1999).

8

forth or attempted to be set forth in the original

pleading.” In the post-conviction setting, the “conduct,

transaction, or occurrence” set forth in an original post-

conviction pleading refers to the conduct or event that

is the basis for the prisoner’s collateral attack, i. e., the

specific grounds for collateral relief and supporting

facts that are set forth in the original pleading. The

Rules governing post-conviction proceedings require an

original post-conviction pleading to set forth all grounds

for relief and supporting facts available to the prisoner.

Rule 2(c)(1) and (2) of the Rules Governing Section 2254

Cases (Section 2254 Rules); Rule 2(b)(1) and (2) of the

Rules Governing Section 2255 Proceedings (Section

2255 Rules). Because relation back under Rule 15(c)(2)

requires that any claim asserted in an amended

pleading must arise from the “conduct, transaction, or

occurrence” that is set forth in the original pleading, the

phrase “conduct, transaction, or occurrence” logically

refers to the grounds for relief and supporting facts

that the prisoner was required to set forth in his

original pleading.

Under that approach to Rule 15(c) in the post-con-

viction setting, relation back principles allow a prisoner

to cure technical deficiencies of form in the original

pleading; to add legal theories based on a set of facts

previously identified in the original pleading; and to

clarify or amplify facts set forth in the original pleading.

The prisoner cannot, however, rely on relation back

to save an otherwise untimely pleading if the amended

pleading asserts both new grounds for relief and a

different set of facts than those set forth in the

prisoner’s original pleading.

Applying that analysis, respondent’s claims of

coerced confession and ineffective assistance of counsel

on appeal are time barred because they do not arise out

9

of any conduct, transaction, or occurrence that is speci-

fied in respondent’s original petition. Those claims rely

on new legal theories and different events and conduct

than those identified in respondent’s original petition,

which concerned the admission of extra-judicial

testimony of a government witness, instructional error,

and insufficient evidence. The amended petition

accordingly does not relate back under Rule 15(c)(2).

B. The Ninth Circuit’s view that the relevant “con-

duct, transaction, or occurrence” is the prisoner’s trial

and conviction conflicts with the central purpose of the

AEDPA’s one-year time limit: to promote the finality

of criminal convictions. Because an original petition

will almost always be based on a prisoner’s underlying

conviction, the rule embraced by the Ninth Circuit

would invariably permit relation back of untimely

claims no matter how disparate the amended claims

were in both time and type from the claims set forth in

the original petition. That rule of virtually automatic

relation back would substantially extend the time in

which to raise new collateral attacks well beyond

AEDPA’s one-year limit and would undermine the

principles of finality, federalism, and comity that

animated the passage of the AEDPA.

C. The conclusion that Rule 15(c)(2) permits relation

back only when the amended pleading arises from the

grounds for relief and supporting facts set forth in the

prisoner’s original post-conviction pleading is confirmed

by the notice principle that serves as the foundation for

the relation-back doctrine. When an amended pleading

asserts a claim of which the original pleading gave fair

notice, there is no cause to assert a limitation period as

a bar to relief. Baldwin County Welcome Ctr. v.

Brown, 466 U.S. 147, 150 n.3 (1984). Thus, when an

amended post-conviction pleading arises from the

10

grounds for relief and supporting facts stated in a

timely pleading, permitting the amended pleading to

relate back is consistent with principles of fair notice.

By contrast, the rule adopted by the Ninth Circuit

would permit an amended pleading to relate back even

in cases such as the present one, where the original

pleading provided no notice of the newly asserted basis

for relief.

ARGUMENT

AN AMENDED POST-CONVICTION PLEADING

RELATES BACK TO AN ORIGINAL PLEADING

WHEN THE AMENDED PLEADING ARISES FROM

THE CONDUCT, TRANSACTION, OR OCCURRENCE

THAT IS THE BASIS FOR RELIEF SET FORTH IN

THE ORIGINAL PLEADING

Following the expiration of AEDPA’s one-year

limitation period, 28 U.S.C. 2244(d)(1), respondent filed

an amended habeas corpus petition that claimed that

the admission at trial of respondent’s pre-trial con-

fession violated his due process rights because his

confession was coerced by police and that counsel was

ineffective on appeal in failing to press the coerced

confession claim. It is undisputed that those claims are

time-barred unless they relate back to respundent’s

timely filed original petition that raised Confrontation

Clause, instructional error, and evidence insufficiency

claims.

According to the rule adopted by the Ninth Circuit,

respondent’s amended claims relate back to the date of

his original petition because the “conduct, transaction,

or occurrence” contemplated by Rule 15(c)(2) in this

context is respondent’s conviction, and because the

original and amended claims arise from the same

criminal conviction. As illustrated by this csae, such a

11

rule would permit relation back of untimely claims that

would include any pre-trial, trial, or post- trial error

that would provide a basis for challenging the

conviction. That approach “views ‘occurrence’ at too

high a level of generality,” United States v. Pittman,

209 F.3d 314, 318 (4th Cir. 2000), and is inconsistent

with the rules governing post-conviction proceedings,

the policies of finality, comity, and federalism under-

lying the AEDPA’s one-year limitation period, and the

requirement of fair notice that is embodied in Rule

15(c). Properly construed, the Rule 15(c)(2) “conduct,

transaction, or occurrence” out of which the amended

petition must arise refers to the specific conduct, trans-

action, or occurrence that is the basis for a prisoner’s

legal challenge as set forth in his original habeas peti-

tion. Because respondent’s original petition gave the

State no notice that respondent was challenging the

introduction of his pre-trial confession, much less his

counsel's effectiveness of assistance on appeal, respon-

dent’s amended claims do not relate back to his original

A. Federal Rule 15(c)(2) Permits Relation Back In Post-

Conviction Proceedings When An Amended Claim

Arises From The Grounds For Relief And Supporting

Facts That Are Required To Be Set Forth In The

Original Pleading _—

1. An Jalpplication for a writ of habeas corpus”

“may be amended or supplemented as provided in the

rules of procedure applicable to civil actions.” 28 U.S.C.

2242. Rule 15(a) of the Federal Rules of Civil Pro-

cedure provides that a party may amend a pleading

after the opposing party has filed a responsive pleading

“only by leave of court” or by consent of the adverse

party, but “leave shall be freely given when justice so

12

requires.” Rule 15(a) addresses when an amendment

should be permitted, see Foman v. Davis, 371 U.S. 178,

182 (1962), but subsection (a) does not address whether

an amended pleading that raises a new claim is none-

theless barred by an applicable sti ute of limitation.

That issue is addressed by Rule 15,<', which provides in

pertinent part that “[ajn amendment of a pleading

relates back to the date of the original pleading when

* * * the claim * * * asserted in the amended plead-

ing arose out of the conduct, transaction, or occurrence

set forth or attempted to be set forth in the original

pleading.” Fed. R. Civ. P. 15(c)(2).

Rule 15(c)(2), however, cannot be applied to post-

conviction pleadings in a manner that conflicts with the

statutes and rules governing post-conviction pro-

ceedings. Federal Rule of Civil Procedure 81(a)(2)

states that the Federal Rules of Civil Procedure apply

to “proceedings for * * * habeas corpus * to the

extent that the practice in such proceedings is not set

forth in * * * the Rules Governing Section 2254

Cases, or the Rules Governing Section 2255 Pro-

ceedings.” Similarly, Rule 11 of the Section 2254 Rules

and Rule 12 of the Section 2255 Rules provide that the

Federal Rules of Civil 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. See also Woodford v. Garceau, 538 U.S.

202, 208 (2003) (“The Federal Rules of Civil Procedure

apply in the context of habeas suits to the extent that

they are not inconsistent with the Habeas Corpus

Rules.”); Pitchess v. Davis, 421 U.S. 482, 489 (1975) (per

All citations to the Section 2254 Rules and Section 2255 Rules

refer to the version that became effective on December 1, 2004.

http//www.uscourts.gov/rules/index.html#congressional 120104.

MEY of Foon

13

curiam) (holding Federal Rule of Civil Procedure 60(b)

does not trump exhaustion requirement under Section

2254).

2. As stated, Rule 15(c)(2) permits relation back of

an amended pleading when the claim asserted in the

amended pleading “arose out of the conduct, transac-

tion, or occurrence set forth * * * in the original

pleading.” Fed. R. Civ. P. 15(c)(2). In the context of an

original pleading that collaterally attacks a criminal

conviction, the phrase “conduct, transaction, or occur-

rence” refers to whatever conduct, event, or occurrence

is alleged as the basis for the initial pleading’s attack on

the conviction, ie, the specific grounds for relief and

supporting facts that are set forth in the original

pleading. That conclusion best comports with the

Section 2254 Rules and the Section 2255 Rules, which

govern the content and form for post-conviction plead-

ings. Those rules reflect Congress’s unambiguous in-

tent that the original post-conviction pleading (i e., a

petition for a writ of habeas corpus under Section 2254

or a motion to vacate, set aside, or correct a sentence

under Section 2255) particularize the specific grounds

for relief and supporting facts for the collateral chal-

lenge to the prisoner’s conviction.‘

Rule 2 requires that a prisoner’s petition or motion

must “specify all the grounds for relief available” to the

prisoner and “state the facts supporting each ground.”

* Rule 2’s specificity requirement was contained in the original

Rules that were drafted by the Advisory Committee in 1976, were

transmitted to Congress by this Court by Order of April 26, 1976,

and were approved by Congress after “careful study.” H.R. Rep.

No. 1471, 94th Cong., 2d Sess. 2 (1976); see also Pub. L. No. 94-426,

90 Stat. 1334; Advisory Committee Notes to Section 2254 Rule 2,

1976 Adoption (Rule 2(c) “requires that all available grounds for

relief be presented in the petition.”).

14

Section 2254 Rule 2(c)(1) and (2); Section 2255 Rule

2(b)\(1) and (2). The Model Form accompanying the

Rules contains similar instructions as well as a caution-

ary statement that if you fail to set forth all the

grounds” in the original pleading, “you may be barred

from presenting additional grounds at a later date.”

Appendix of Forms for Petitions under 28 U.S.C. 2254

and Motions under Section 2255 (Instructions § 9,

Model Form J 12); see also Section 2254 Rule 2(d) and

Section 2255 Rule 2(c) (requiring that original pleading

“must substantially follow either the form appended to

these rules” or form prescribed by local district-court

rules).

For those reasons, the “conduct, transaction, or

occurrence set forth or attempted to be set forth in the

original pleading” in a Section 2254 or Section 2255

proceeding is not a prisoner’s “trial and conviction,” as

held by the court of appeals. Pet. App. A4, A6, A7.

Rather, the phrase, in this context, refers to the

particular conduct, event, or occurrence that serves as

the ground for relief and supporting facts that the post-

conviction Rules require the prisoner to specify in his

original pleading. Accordingly, an amended post-con-

viction pleading relates back to the date of the original

pleading under Rule 15(c)(2) only if the amended claim

arises from the grounds and set of facts identified in the

prisoner's original pleading.

That conclusion does not render Rule 15(c)’s relation-

back principle “meaningless in the habeas context,” as

suggested by the Ninth Circuit. Pet. App. A7-A8, 49.

For instance, relation back is appropriate when the

amended pleading cures a technical or form deficiency

in an original pleading, such as a missing signature. See

Advisory Committee Notes to 2004 Amendments to

Rules 2 and 3 of the Section 2254 Rules and Section

15

2255 Rules (explaining amendments that require clerks

to accept defective motions so that prisoner can later

file corrected motion); cf. Edelman v. Lynchburg Coll.,

535 U.S. 106 (2002) (permitting relation back of

verification requirement under Title VII); Becker v.

Montgomery, 532 U.S. 757 (2001) (permitting relation

back of signature requirement for notice of appeal).

Relation back also is appropriate if the amended

pleading adds a new legal theory that is based on the

same set of facts that were specified in the original

post-conviction pleading, i.e. the particular occurrences

or conduct challenged in the original pleading. Cf.

Chavez v. Martinez, 538 U.S. 760 (2003) (rejecting self-

incrimination clause challenge but remanding for sub-

stantive due process analysis of same conduct); McNeil

v. Wisconsin, 501 U.S. 171, 175-179 (1991) (reviewing

validity of admission of confession under Fifth and

Sixth Amendments). Relation back is also appropriate

if an amended pleading clarifies or amplifies facts to

support the specific grounds that were raised in the

original pleading. As Judge Edwards has explained in

the D.C. Circuit’s decision in United States v. Hicks,

283 F.3d 380, 388 (2002), “an amendment offered for the

purpose of adding [to] or amplifying the facts already

alleged in support of a particular claim may relate

back.” Conversely, an amendment “that attempts to

introduce a new legal theory based on facts different

from those underlying the timely claims may not.” Id.

at 389; accord Pet. App. ot nena

3. Under the above principles, respondent’s amend-

ed petition does not arise out of any “conduct, trans-

action, or occurrence” that was raised in respondent’s

original petition. Respondent’s timely original petition

raised three grounds for relief from his state court

conviction: the admission of Williams’ out-of-court

16

statement, instructional error, and insufficiency of the

evidence. Pet. App. G6. The new claims raised in the

amended petition, filed after the AEDPA’s one-year

limitation period, abandoned the latter two claims and

raised entirely new grounds for relief based on a com-

pletely different set of facts: the admission of respon-

dent’s allegedly coerced confession and counsel’s al-

leged ineffective assistance on appeal for failure to raise

the coerced confession claim. “Here, it simply cannot

be said that [the original and amended] claims arise

from the same set of facts; rather, they arise from dis-

tinctly separate occurrences of both time and type.” /d.

at Als (Tallman, J., dissenting); accord id. at D9

(magistrate judge’s recommended findings) (“Obvi-

ously, the theories and facts of the claims are distinct.”).

Respondent’s untimely amended petition therefore

should have been dismissed as time-barred under the

AEDPA’s one-year time limit.

B. The Court Of Appeals’ Interpretation Of Rule 15(c)(2)

Conflicts With The Purposes Of AEDPA’s One-Year

Time Limit

1. “Congress enacted AEDPA to reduce delays in

the execution of state and federal criminal sentences,

particularly capital cases,” and “to further the prin-

ciples of comity, finality, and federalism.” Woodford v.

Garceau, 538 U.S. 202, 206 (2003) (quoting Willams v.

Taylor, 529 U.S. 362, 386, 436 (2000)). In particular, the

AEDPA’s one-year limitation period “quite plainly

serves the well-recognized interest in the finality” of

criminal judgments by “restricting the time that a

prospective federal habeas petitioner has in which to

seek federal habeas review.” Duncan v. Walker, 533

U.S. 167, 179 (2001). Those purposes are best served by

permitting relation back of an amendment that is filed

17

beyond AEDPA’s one-year limitation period only when

the amendment arises out of the grounds and set of

facts set forth in an original timely filed pleading. That

rule is “faithful * * * to the concerns about drawn-out

and unlimited collateral attacks on federal criminal

judgments evinced by the passage of AEDPA.” Hicks,

283 F.3d at 389; accord United States v. Duffus, 174

F.3d 333, 338 (3d Cir.) (“A prisoner should not be able

to assert a claim otherwise barred by the statute of

limitations merely because he asserted a separate claim

within the limitations period.”), cert. denied, 528 U.S.

866 (1999).

By contrast, a rule that the “conduct, transaction, or

occurrence” is the prisoner’s trial and conviction “would

be difficult to square with Congress’ decision to ex-

pedite collateral attacks by placing stringent time

restrictions” on Section 2254 petitions and Section 2255

motions. Hicks, 283 F.3d at 388. The Ninth Circuit’s

rule would mean that amendments “would almost

invariably be allowed even after the statute of limita-

tions has expired, because most [collateral] claims arise

from a criminal defendant’s underlying conviction and

sentence.” Pittman, 209 F. 3d at 318; Hicks, 283 F. ad at

388 (“In most cases, a prisoner’s claims for relief will

arise out of the same criminal conviction; if the de-

fendant’s trial and sentencing are construed to be the

‘occurrence,’ virtually any purported amendment will

relate back.”); see also Section 2254 Rule 2(e) and

Section 2255 Rule 2(d) (requiring separate petitions or

motions for separate judgments under attack).

Because a judgment of conviction generally embodies

the jury verdict or plea and the sentence, see, e. g., Fed.

R. Crim. P. 32(k)(1), the rule embraced by the Ninth

Circuit would significantly extend the one-year limita-

tion period with respect to any new grounds for relief

18

or supporting set of facts that arise out of the conviction

at issue, even though the new grounds and facts were

not set forth in the original petition. “By defining

‘conduct, transaction, or occurrence’ so broadly that any

claim stemming from pre-trial motions, the trial, or

sentencing relates back to a timely-filed habeas

petition,” the Ninth Circuit’s rule would permit “the

‘relation-back’ doctrine to swallow AEDPA’s statute of

limitation, rendering it a virtual nullity through which

an unlimited number of amendments must be liberally

permitted so long as the original collateral attack

was timely filed.“ Pet. App. A13, A1l6 (Tallman, J.,

dissenting) (footnote omitted); see also United States v.

Espinoza-Saenz, 235 F.3d 501, 505 (10th Cir. 2000)

(“(Tjo allow amendment under that broad umbrella

would be tantamount to judicial rescission of AEDPA’s

statute of limitations period.”); accord Davenport v.

United States, 217 F.3d 1341, 1346 (11th Cir. 2000), cert.

denied, 532 U.S. 907 (2001); Pittman, 209 F.3d at 318;

Duffus, 174 F.3d at 337-338.

In Duncan, this Court refused to adopt an inter-

pretation of the AED PA that would permit a state

prisoner's filing of a federal habeas petition to count as

a post-conviction filing that tolls the one-year limitation

period under Section 2244(d)(2) because that inter-

pretation would hold greater potential to hinder

finality.” 533 U.S. at 178. The Ninth Cireuit's inter-

pretation similarly should be rejected because it would

hold greater potential to hinder finality.” bid. The

Ninth Circuit’s holding would permit indefinite relation

back for untimely claims arising out of the prisoner’s

conviction so long as the case remains pending. That

time period in many instances would last well beyond

the expiration of AEDPA’s one-year limit.

19

For instance, in a sample of habeas actions disposed

of during 1992, the average (mean) number of days to

resolve the case on the merits in district court was 477

days, and that number was 925 days for multiple-issue

habeas petitions involving a sentence of death. Bureau

of Justice Statistics, U.S. Dep’t of Justice, Federal

Habeas Corpus Review 23-25 (1995). Even the median

case processing time for all habeas cases, including

those not addressed on the merits, was about 6 months, ~

with 10% taking more than 761 days to resolve. Id. at

19-20; see also Pet. App. Al6 n.2 (Tallman, J., dis-

senting) (observing that respondent’s case was pending

for four years before the district court resolved

respondent’s Confrontation Clause claim on the merits).

Thus, by embracing a rule that would invariably lead to

relation back of untimely claims as long as they arose

out of the prisoner’s conviction, the net effect of the

Ninth Circuit’s rule would be to extend the limitations

period for filing collateral challenges substantially

beyond the time period specified by Congress.

2. The Ninth Circuit believed that its holding was

tempered by the fact that a prisoner who delays the

filing of an amended petition runs the risk that the

district court will have already entered judgment on

the merits with respect to the original petition and the

prisoner therefore will have to meet the more stringent

requirements for bringing a second or successive

petition under 28 U.S.C. 2244(b)(2). Pet. App. A8-A9

n.2. As discussed, however, a considerable amount of

time may pass before a court resolves a prisoner’s

original claim or claims. Moreover, because the amount

of time to resolve any given collateral attack will vary

in light of the complexity of the case and docket of the

district court, the Ninth Circuit’s approach would

create anomalies and inequities that could not have

20

been intended by Congress. A prisoner seeking relief

from a conviction before a district court that promptly

enters final judgment with respect to the original

petition not only will have to raise any additional chal-

lenges to his conviction under the strict requirements

for second and successive petitions, ibid., but he also

will have to comply with the one-year limitation period

with respect to any additional claims. By contrast, a

similarly-situated prisoner whose case is pending be-

fore a court that takes a longer time to act on an

original petition is free to mount additional and effec-

tively consecutive attacks on the conviction without

regard to AEDPA’s one-year time limit or the Act’s

provisions on second or successive petitions. There is

no basis for reading Rule 15(c) to create such disparate

treatment.’

The court of appeals in Ellzey, 324 F.3d at 526, stated that,

under the government’s view of Rule 15(c), post-conviction “plead-

ings could not be amended at all.“ even if filed within the one-year

limit, “for a successive collateral attack requires prior appellate

approval” under 28 U.S.C. 2244(b)(3)(A) and 2255 1 8. That sug-

gestion is unfounded. As long s a post-conviction proceeding is

pending, all timely amendments may be filed under Rule 15(a)

without becoming a second or successive filing under AEDPA.

Johnson v. United States, 196 F.3d 802, 805 (7th Cir. 1999) (“A

prisoner receives one complete round of litigation, which as in

other civil suits includes the opportunity to amend a pleading be-

fore judgment.”). That conclusion holds true even where the

amended petition raises claims based on different grounds and

facts from the original petition, so long as the amendment is filed

within the limitations period. Rule 15(a) does not require any

“conduct, transaction, or occurrence” connection between the

original and amended claims, and Rule 15(c)(2) is relevant only

when the amended petition is filed after the expiration of the

limitations period.

21

The Ninth Circuit also attempted to justify its

holding on the theory that “abuses of [Federal Rule of

Civil Procedure] 15 can be controlled by the district

court under subsection (a), which requires leave of

court to file an amendment after a responsive pleading

has been filed.” Pet. App. Ag; see also Ellzey, 324 F.3d

at 527. As the Ninth Circuit recognized, Pet. App. A9

n.3, however, Federal Rule of Civil Procedure 15(a) re-

quires leave to be “freely given,” and will be typically

given absent prejudice to the opposing party or other

similar circumstances. Foman v. Davis, 371 U.S. at

182. More importantly, permitting relation back of an

otherwise proper amendment under Rule 15(a) (i.e.,

because there is no prejudice to the government) would

nonetheless substantially extend AEDPA’s one-year

limit and therefore would “thwart[] the basic objective

of repose underlying the very notion of a limitations

period.” Rotella v. Wood, 528 U.S. 549, 554 (2000);

Duffus, 174 F.3d at 338 (recognizing principle “that

usually statutes of limitations operate without taking

prejudice from delay into account”).

The harm to the principle of repose is particularly

acute in the post-conviction setting where a prisoner

attacks an otherwise final criminal conviction. By inter-

fering with the finality of criminal judgments, collateral

review of criminal convictions entails “profound societal

costs.” Calderon v. Thompson, 523 U.S. 538, 554 (1998)

(quoting Smith v. Murray, 477 U.S. 527, 539 (1986)).

Such review “extends the ordeal of trial for both society

and the accused,” Engle v. Isaac, 456 U.S. 107, 126-127

(1982), and undermines the government’s ability to

exact retribution for crimes because it prevents the

government from executing the moral judgments re-

flected in criminal convictions, Thompson, 523 U.S. at

556. The absence of finality also frustrates deterrence

22

and rehabilitation. Effective deterrence depends on the

expectation that punishment will be swift and sure, and

successful rehabilitation requires the defendant to

accept that he is justly subject to sanction and that he

needs to be rehabilitated. Isaac, 456 U.S. at 127-128

n.32.

Collateral review of state convictions also threatens

the other purposes for Congress’s enactment of

AEDPA—the promotion of comity and federalism.

Woodford v. Garceau, 538 U.S. at 206; Schlup v. Delo,

513 U.S. 298, 318 (1995). Review of state court judg-

ments by lower federal courts “frustrate[s] both the

States’ sovereign power to punish offenders and their

good faith attempts to honor constitutional rights.”

Isaac, 456 U.S. at 128. The costs to comity and federal-

ism are magnified in cases like the present one in which

the prisoner’s untimely claims had not been exhausted

in state court. Baldwin v. Reese, 124 S. Ct. 1347, 1351

(2004); Carey v. Saffold, 536 U.S. 214, 219 (2002).

C. The Court Of Appeal’s Holding Conflicts With The

Notice Principle Of Rule 15(c)(2)

1. Rule 15(c)(2) is premised on the principle that

once an original pleading “‘give[s] the defendant fair

notice of what the plaintiffs claim is and the grounds

upon which it rests,’” the defendant “has been given all

the notice that statutes of limitations were intended to

provide.” Baldwin County Welcome Ctr. v. Brown, 466

U.S. 147, 150 n.3 (1984) (per curiam) (quoting Conley v.

Gibson, 355 U.S. 41, 47, (1957)). Thus, the relation back

principle, which was “a well-recognized doctrine” that

pre-dated the Federal Rules, Scarborough v. Principi,

124 S. Ct. 1856, 1867 (2004) (quoting Advisory Com-

mittee’s 1937 note on Subd. (c) of Fed. R. Civ. P. 15),

recognizes that “[w]hen a defendant has had notice

23

from the beginning that the plaintiff sets up and is

trying to enforce a claim against it because of specified

conduct, the reasons for the statute of limitations do

not exist.” New York Cent. & Hudson River R.R. v.

Kinney, 260 U.S. 340, 346 (1922); see, e.g., Scarborough,

124 S. Ct. at 1867 (permitting relation back of the “not

substantially justified” allegation required by the Equal

Access to Justice Act because “the allegation does not

serve an essential notice-giving function”).

The notice principle that undergirds Rule 15(c)(2)

fully supports viewing the “conduct, transaction, or

occurrence” as the specific grounds for relief and sup-

porting facts identified by the prisoner in his original

pleading. In the ordinary civil context, “amendments

that do no more than restate the original claim with

greater particularity or amplify the details of the

transaction alleged in the preceding pleading fall within

Rule 15(c)” because the opposing party has been noti-

fied by the original pleading of the gist of the plaintiff's

claim. 6A Charles Alan Wright, et al., Federal Practice

and Procedure § 1497, at 76 (1990) (footnotes omitted).

Under similar principles, an amendment that “changes

the legal theory on which the action initially was

brought” relates back to an original filing “if the factual

situation upon which the action depends remains the

same and has been brought to defendant’s attention by

the original pleading.” Jd. at 95 (footnote omitted); See,

e.g., Tiller v. Atlantic Coast Line R.R., 323 U.S. 574

(1945) (amended Federal Boiler Inspection Act claim

related back to timely filed Federal Employers’ Li-

ability Act claim based on same train accident that

injured the plaintiff).

By contrast, relation back is not appropriate where

“the amended petition set([s] up not only a different

state of facts, but a different rule of law as the ground

24

of the action.” Missouri, Kan. & Tex. Ry. v. Wulf, 226

U.S. 570, 577 (1913). Yet the Ninth Circuit’s conception

of “conduct, transaction, or occurrence” as the convic-

tion under collateral attack would permit relation back

in such instances by allowing a prisoner to raise expired

claims arising from different pre-trial, trial, or post-trial

events of which the original pleading gave the govern-

ment no notice. As Judge Edwards has cogently ex-

plained, where an amended post-conviction pleading

raises “an entirely new legal theory that arises from an

entirely different set of facts and type of conduct,” “the

Government would be deprived of ‘sufficient notice of

the facts and claims giving rise to the proposed amend-

ment,’ thus subverting the central policy of the relation

back doctrine.” Hicks, 283 F.3d at 388, 389 (quoting

Anthony v. Cambra, 236 F.3d 568, 576 (9th Cir. 2000),

cert. denied, 533 U.S. 941 (2001)).

This case well illustrates the point. There is nothing

in respondent’s original petition that notified the State

that respondent was seeking relief from his conviction

based on the court’s refusal to suppress incriminating

pre-trial statements that respondent made to police,

much less counsel’s alleged ineffectiveness on appeal.

To permit relation back in that instance would impro-

perly require the State “to prepare the case a second

time.” Charles Alan Wright et al., supra, at 85.°

It would also be incorrect to conclude, as suggested

by the Ninth Circuit, that an original petition brings an

® Respondent was aware of the events giving rise to his coerced

confession and ineffective-assistance-of-counsel claims before he

filed his original petition. Br. in Opp. 2 n.2 (noting that respon-

dent’s counsel objected before trial to the introduction of respon-

dent’s pre-trial statements); cf. 28 U.S.C. 2244(d)(1)(B)-(D), 2255

1 6(2)-(3) (providing separate limitations period for certain claims

such as newly discovered evidence).

25

entire “trial and conviction to the attention of the

State.” Pet. App. Al0. As discussed, pp. 13-14, supra,

the Rules governing collateral challenges require the

original pleading to set forth a specific ground for relief

and supporting facts. Similarly, a pleading that seeks

relief from a conviction based on a mere general

allegation of an invalid trial or conviction, without any

supporting grounds or facts, would provide the govern-

ment with no “notice of what the plaintiff's claim is and

the grounds upon which it rests” and therefore would

“not be an original pleading that could be rehabilitated

by invoking Rule 15(c).” Baldwin County Welcome

Ctr., 466 U.S. at 150 n.4 (quoting Conley v. Gibson, 355

U.S. at 47). Accordingly, the government may be pro-

perly charged with notice of only those grounds for

relief and set of supporting facts that were identified in

a prisoner’s timely-filed pleading. Cf. Schiavone v.

Fortune, 477 U.S. 21, 31 (1986) (observing that under

the 1990 version of Rule 15(c), which permitted relation

back of an amendment that changes party-defendant,

“(t]he linchpin is notice, and notice within the limita-

tions period”). Moreover, the notion that the govern-

ment is entitled to notice of no more than the bare fact

that a habeas petition has been filed is inconsistent with

the limitation in Rule 15(c)(2) that relation back not

extend beyond the “conduct, transaction, or occur-

rence” addressed in the original pleading.

3. The Ninth Circuit also expressed the view that its

interpretation of Rule 15(c) conformed to principles of

res judicata in the civil context such that “anything that

would be barred, if not brought now, may be added and

litigated” under Rule 15(c)(2). Pet. App. A7 (quoting

Ellzey, 324 F.3d at 526). The text of Rule 15(c), how-

ever, does not mention res judicata, and the two doc-

trines serve different purposes. Whereas Rule 15(c) is

26

concerned with fair notice, res judicata furthers prin-

ciples of judicial economy and the protection of parties

from the burdens of repetitious litigation. Parklane

Hosiery Co. v. Shore, 439 U.S. 322, 327 (1979).

Moreover, principles of res judicata governing

civil cases do not govern post-conviction proceedings.

Rather, Congress in AEDPA has enacted a “modified

res judicata rule” in AEDPA’s provisions dealing with

second or successive petitions or motions. Felker v.

Turpin, 518 U.S. 651, 664 (1996); 28 U.S.C. 2244(b), 2255

18. Under AEDPA, any “claim” presented in a suc-

cessive petition or motion that “was presented” in a

prior petition or motion must be dismissed, whereas

any “claim” that “was not presented” previously will

not be dismissed if the claim meets certain gatekeeping

requirements. 28 U.S.C. 2244(b)(1) and (2). Those pro-

visions reflect a conception of “claim” that refers to “a

challenge to a particular step in the case, such as the

introduction of a given piece of evidence, the text of a

given jury instruction, or the performance of counsel.”

Brannigan v. United States, 249 F.3d 584, 588 (7th Cir.)

(Easterbrook, J.), cert. denied, 534 U.S. 874 (2001). The

contrary view—that a “claim” refers to the entire trial

and conviction—“would imply that every successive

collateral attack on a single conviction and sentence

must be dismissed.” /bid.

AEDPA’s second and successive provisions, like the

Rules governing post-conviction proceedings generally,

thus focus on the particular grounds and supporting

facts that are the basis for the prisoner’s collateral

challenge. Those provisions, like AEDPA’s one-year

limitation period, all reflect Congress’s overarching

concern for finality of criminal convictions. The court of

appeals’ conception of relation back in the post-con-

viction setting undermines that fundamental concern as

27

well as the requirement of fair notice that forms the

justification for the relation back doctrine under Rule

15(¢)(2).

CONCLUSION

The judgment of the court of appeals should be

reversed.

Respectfully submitted.

PAUL D. CLEMENT

CHRISTOPHER A. WRAY

Assistant Attorney General

MICHAEL R. DREEBEN

Deputy Solicitor General

LISA S. BLATT

Assistant to the Solicitor

General

RICHARD A. FRIEDMAN

Attorney

FEBRUARY 2005

1. Section 2244 of Title 18 U.S.C., provides in rele-

vant part:

Finality of determination

* * * * *

(b)(1) A claim presented in a second or successive

habeas corpus application under section 2254 that was

presented in a prior application shall be dismissed.

(2) A claim presented in a second or successive

habeas corpus application under section 2254 that was

not presented in a prior application shall be dismissed

unless—

(A) the applicant shows that the claim relies on a

new rule of constitutional law, made retroactive to

cases on collateral review by the Supreme Court,

that was previously unavailable; or

(B)(i) the factual predicate for the claim could not

have been discovered previously through the exer-

cise of due diligence; and

(ii) the facts underlying the claim, if proven and

viewed in light of the evidence as a whole, would be

sufficient to establish by clear and convincing evi-

dence that, but for constitutional error, no reason-

able factfinder would have found the applicant

guilty of the underlying offense.

(3A) Before a second or successive application per-

mitted by this section is filed in the district court, the

applicant shall move in the appropriate court of appeals

for an order authorizing the district court to consider

the application.

(la)

2a

(B) A motion in the court of appeals for an order

authorizing the district court to consider a second or

successive application shall be determined by a

three-judge panel of the court of appeals.

(C) The court of appeals may authorize the filing

of a second or successive application only if it deter-

mines that the application makes a prima facie

showing that the application satisfies the require-

ments of this subsection.

(D) The court of appeals shall grant or deny the

authorization to file a second or successive applica-

tion not later than 30 days after the filing of the

motion.

(E) The grant or denial of an authorization by a

court of appeals to file a second or successive appli-

cation shall not be appealable and shall not be the

subject of a petition for rehearing or for a writ of

certiorari.

(4) A district court shall dismiss any claim pre-

sented in a second or successive application that the

court of appeals has authorized to be filed unless the

applicant shows that the claim satisfies the require-

ments of this section.

* * * * *

(d; (I) 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;

3a

B) the date on which the impediment to filing an

application created by State action in vio’ation of

the Constitution or laws of the United States is

removed, if the applicant was prevented from filing

by such State action;

(C) the date on which the constitutional 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 dis-

covered through the exercise of due diligence.

(2) The time during which a properly filed appli-

cation for State post-conviction or other collateral re-

view with respect to the pertinent judgment or claim is

pending shall not be counted toward any period of

limitation under this subsection.

2. Rule 2 of the Rules Governing Section 2254 Cases

provides in relevant part:

The Petition

* * * * *

(e) Form. The petition must:

(1) specify all the grounds for relief available to

the petitioner;

(2) state the facts supporting each ground;

(3) state the relief requested;

4a

(4) be printed, typewritten, or legibly hand-

written; and

(5) be signed under penalty of perjury by the

petitioner or by a person authorized to sign it for

petitioner under 28 U.S.C. § 2242.

(d) Standard Form. The petition must substantially

follow either the form appended to these rules or a form

prescribed by a local district-court rule. The clerk must

make forms available to petitioners without charge.

(e) Separate Petitions for Judgments of Separate

Courts. A petitioner who seeks relief from judgments

of more than one state court must file a separate peti-

tion covering the judgment of judgments of each court.

3. Federal Rule of Civil Procedure 15 provides in

relevant part:

Amended and Supplemental Pleadings

(a) Amendments. A party may amend the party’s

pleading once as a matter of course at any time before a

responsive pleading is served or, if the pleading is one

to which no responsive pleading is permitted and the

action has not been placed upon the trial calendar, the

party may so amend it at any time within 20 days after

it is served. Otherwise a party may amend the party’s

pleading only by leave of court or by written consent of

the adverse party; and leave shall be freely given when

justice so requires.

* * * * *

(e) Relation Back of Amendments. An amendment

of a pleading relates back to the date of the original

pleading when

(2) the elaim 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 * * *.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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