Amicus Curiae Brief — Mayle v. Felix

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No. 04-563

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3n The

—_— Court of the United States

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DENEICE A. MAYLE, Warden,

Petitioner,

Vv.

JACOBY LEE FELIX,

Respondent.

+

On Writ Of Certiorari To The United States

Court Of Appeals For The Ninth Circuit

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BRIEF OF THE STATES OF ARIZONA, ALASKA,

ARKANSAS, COLORADO, DELAWARE, FLORIDA,

HAWAII, IDAHO, ILLINOIS, IOWA, KANSAS,

MARYLAND, MASSACHUSETTS, MISSISSIPPI,

MISSOURI, MONTANA, NEBRASKA, NEVADA,

OHIO, OKLAHOMA, OREGON, PENNSYLVANIA,

SOUTH CAROLINA, SOUTH DAKOTA, TENNESSEE,

TEXAS, UTAH, VIRGINIA, WEST VIRGINIA,

WASHINGTON, WISCONSIN, WYOMING,

AND THE COMMONWEALTH OF PUERTO RICO

AS AMICI CURIAE IN SUPPORT OF PETITIONER

SJ

TERRY GODDARD

Attorney General of the

State of Arizona

Mary O’GRADY

State Solicitor General

Of Counsel: - RANDALL M. HOWE

DAN SCHWEITZER Criminal Appeals Section Chief

750 First St., N.E. MICHAEL O’TOOLE

Washington, D.C. 20002 Assistant Attorney General and

(202) 326-6010 (Counsel of Record)

1275 W. Washington St.

Phoenix, AZ 85007

(602) 542-8593

[Additional Counsel Listed On Inside Covert

COCKLE LAW BRIEF PRINTING CO | (800) 225-6964

OR CALL COLLECT (402) 342-2831

Scott J. NORDSTRAND

Acting Attorney General

of Alaska

P.O. Box 110300

Diamond Courthouse

Juneau, AK 99811-0300

MIKE BEEBE

Attorney General of Arkansas

200 Tower Building

323 Center Street

Little Rock, AR 72201-2610

JOHN W. SUTHERS

Attorney General of Colorado

1525 Sherman Street,

7th Floor

Denver, CO 80203

M. JANE BRADY

Attorney General of Delaware

DEPARTMENT OF JUSTICE

820 North French Street

Wilmington, DE 19801

CHARLES J. CRIST, JR.

Attorney General of Florida

The Capitol, PL 01

Tallahassee, FL 32399-1050

MARK J. BENNETT

Attorney General of Hawaii

425 Queen Street

Honolulu, HI 96813

LAWRENCE G. WASDEN

Attorney General of Idaho

P.O. Box 83720

Boise, ID 83720-1000

LISA MADIGAN

Attorney General of Illinois

James R. Thompson Center

100 West Randolph Street,

12th Floor

Chicago, IL 60601

THOMAS J. MILLER

Attorney General of Iowa

Hoover State Office Building

1305 East Walnut

Des Moines, LA 50319

PHILL KLINE

Attorney General of Kansas

120 S.W. 10th Avenue,

2nd Floor

Topeka, KS 66612-1597

J. JOSEPH CURRAN, JR.

of Maryland

200 Saint Paul Place

Baltimore, MD 21202-2202

THOMAS F. REILLY

Attorney General

of Massachusetts

One Ashburton Place

Boston, MA 02108

JM Hoop

Attorney General

of Mississippi

DEPARTMENT OF JUSTICE

P.O. Box 220

Jackson, MS 39205-0220

JEREMIAH W. (JAY) NIXON

Attorney General of Missouri

Supreme Court Building

207 West High Street

Jefferson City, MO 65101

MIKE MCGRATH

Attorney General of Montana Secretary of Justice

ROBERTO J. SANCHEZ RAMOS

215 North Sanders Commonwealth of

P.O. Box 201401 Puerto Rico

Helena, MT 59620-1401 P.O. Box 192

Jon BRUNING San Juan, PR 00902-0192

Attorney General of Nebraska HENRY D. MCMASTER

State Capitol Attorney General

P.O. Box 98920 of South Carolina

Lincoln, NE 68509-8920 P.O. Box 11549

BRIAN SANDOVAL Columbia, SC 29211-1549

Attorney General of Nevada LAWRENCE E. LONG

Nevada Department Attorney General

of Justice of South Dakota

100 North Carson Street 500 East Capitol Avenue

Carson City, NV 89701 Pierre, SD 57501-5070

JIM PETRO PAUL G. SUMMERS

Attorney General of Ohio Attorney General

150 East Gay Street, of Tennessee

23rd Floor P.O. Box 20207

Columbus, OH 43215 Nashville, TN 37243

W.A. DREW EDMONDSON GREG ABBOTT

Attorney General of Oklahoma Attorney General of Texas

2300 North Lincoln Capitol Station

Boulevard, Suite 112 P.O. Box 12548

Oklahoma City, OK 73105

HARDY MYERS

Attorney General of Oregon

1162 Court Street NE

Salem, OR 97301

THOMAS W. CORBETT, JR.

Attorney General

of vania

16th Floor, Strawberry Square

Harrisburg, PA 17120

Austin, TX 78711-2548

MARK L. SHURTLEFF -

Attorney General of Utah

Utah State Capitol Complex

East Office Building,

Suite 320

Salt Lake City, UT

84114-2320

JUDITH WILLIAMS JAGDMANN

Attorney General of Virginia

900 East Main Street

Richmond, VA 23219

RoB MCKENNA

Attorney General

of Washington

1125 Washington Street

P.O. Box 40100

Olympia, WA 98504-0100

DARRELL V. McGRAw, JR.

Attorney General

of West Virginia

State Capitol, Room 26-E

Charleston, WV 25305

Peccy A. LAUTENSCHLAGER

Attorney General

of Wisconsin

State Capitol, Suite 114 East

P.O. Box 7857

Madison, WI 53707-7857

PATRICK J. CRANK

Attorney General of Wyoming

123 State Capitol

Cheyenne, WY 82002

QUESTION PRESENTED

When a state prisoner challenging a state judgment

amends a federal habeas corpus petition to include a new

claim, does the amendment relate back to the date of the

filing of the original petition, and thus avoid the one-year

statute of limitations, based on the mere fact that the new

claim stems from the prisoner’s trial, conviction, or sen-

tence?

,

TABLE OF CONTENTS

Page

QUESTION PRESENTED .............ccccccecccesesseesceneeneees i

fT FR eee iii

INTEREST OF AMICI CURIAE .0.......0cccccccc0eseeseeseees 1

SUMMARY OF ARGUMENT .............ccccccccescesceeeeeeees 1

| ETERS eae eT ORIOLE TEER 4

I. IN THE HABEAS CONTEXT, THE “CON-

DUCT, TRANSACTION, OR OCCURRENCE

SET FORTH” IN THE ORIGINAL PLEAD-

ING IS THE FACTUAL BASIS FOR THE

CONSTITUTIONAL VIOLATION .................. 4

II. RELATION BACK UNDER RULE 15(C)(2)

HAS ALWAYS BEEN INTERPRETED TO

REQUIRE A COMMON FACTUAL NEXUS

BETWEEN THE AMENDED CLAIMS AND

THE ORIGINAL CLAIMS ......0.........cccccseseeeeees 12

Se eB ececcasecscacesesscssecsscesesssssessccuscsssssassecsesens 22

TABLE OF AUTHORITIES

Page

CASES

Adams v. Armontrout, 897 F.2d 332 (8th Cir. 1990)........... 8

Baldwin County Welcome Ctr. v. Brown, 466 U.S.

ee 11,14

Banks v. Drethe, 540 U.S. 668 (2004).............cccccccceseeeeenenees 9

Barrett v. United States, 622 F. Supp. 574 (S.D.N_Y.

ITI ccncsunensnusenmensneinsnesensneneseniniimmmepninieintmnaimnmtesentie 21

Bensel v. Allied Pilots Ass’n, 387 F.3d 298 (3d Cir.

eae hienbihbinespinieettabemenmanimnensi 15

Brown v. United States, 271 F.Supp. 2d 225

a seepanndennntenntens 19

Burt v. CBS, Inc., 769 F. Supp. 1012 (S.D. Ohio

ITI ccsuscccussemsnemsnensnecesinenenemmasnennninenmaniedensimmemmnnnenenntin 20

Conley v. Gibson, 355 U.S. 41 (1957) ............cccccceceeeeeees 7,14

Dean v. United States, 278 F.3d 1218 (11th Cir.

ee 8, 18

Ellzey v. United States, 324 F.3d 521 (7th Cir. 2003) ....... 18

Engle v. Issac, 456 U.S. 107 (1982) ............:cccccceeeerereeeeeeeeees 8

Farris v. United States, 333 F.3d 1211 (11th Cir.

IED cucnscctunsssannansessiatsemmienieuneinnmigetenmienenummesemennnents 3,14

FD.LC. v. Jackson, 133 F.3d 694 (9th Cir. 1998).............. 15

Forzley v. AVCO Corp. Elec. Div., 826 F.2d 974 (11th

ee 19

Gray v. Netherland, 518 U.S. 152 (1996)................ccceeeeees 17

Gustafson v. Alloyd Co., Inc., 513 U.S. 561 (1995) ........... 11

Hawthorne v. Mac Adjustment, Inc., 140 F.3d 1367

ee 10

iv

~ TABLE OF AUTHORITIES - Continued

Page

Hibbs v. Winn, ___ U.S. ___, 24S. Ct. 2276 (2004)........... 11

Hill v. Lockhart, 474 U.S. 52 (1985) .........ccccccccceeeseeeeeeeeees 6

Holmes v. Greyhound Lines, Inc., 757 F.2d 1563

SE EEE Si inniestecsnestticnssennenensnnscnsestenesnsentdnmetiennain 20

Hooper v. Sachs, 618 F. Supp. 963 (D.C. Md. 1985).......... 21

Jackson v. Suffolk County Homicide Bureau, 135

I UII iinriiasisitinpncitaitsiinnnainieiateninmmieniinils 21

James v. Borg, 24 F.3d 20 (9th Cir. 1994)... eee 6

Kelly v. Small, 315 F.3d 1063 (9th Cir. 2003)................... 17

Lawton v. United States, 184 F. Supp. 2d 419 (E.D.

STU SUIT hicsinncentsehiiiehiiiitcnsiiaeaiaimmtekiliaaeat inate aa aseainaees 17

Leocal v. Ashcroft, __ US 125 S.Ct. 377

ieee ccseinenaientinaninntaniiennnesintiineaitiinasimantiiiaaicinbbiuaieiaimaienssis 10

Mandacina v. United States, 328 F.3d 995 (8th Cir.

SIT ecrneensinhcietsiccsitneittinaiitaiehaeindeataliiiaiiieiaiaaa tinal stiaidaiaaaaiil 16

Martell v. Trilogy Ltd., 872 F.2d 322 (9th Cir. 1989)........ 16

Matter of Unroe, 937 F.2d 346 (7th Cir. 1991).................. 19

McFarland v. Scott, 512 U.S. 849 (1994) ......cccccccessseesseeeen 6

McGregor v. Louisiana State Univ. Bd. of Sup’rs, 3

ePID Ee crticnentccensedi conmnsentnedeniensaseetiin 19

Mederos v. United States, 218 F.3d 1252 (11th Cir.

IUTITED carenepemncnntnaianipianissiemesneniestttatbineiasaemeatmmmmeneatttitasiasaits 16

Missouri, K. & TR. Co. v. Wulf, 226 U.S. 570 (1913)....... 13

Monks v. Marlinga, 732 F. Supp. 749 (E.D. Mich.

TUTE cossensnnsnsedninenrendnententeienmimentnosingmnnnsinentemnsetnenegsenes 20

Nelson v. Campbell, 541 U.S. 637 (2004)..........cccccecceseesees 20

\

v

TABLE OF AUTHORITIES -— Continued

Page

Nettis v. Levitt, 241 F.3d 186 (2d Cir. 2001).................. 4,19

New York Central & Hudson River R. Co. v. Kinney,

eC EE cnenccncsccnecdnctusnestertennsstemsiensnccennntemun 13

O'Loughlin v. Nat'l R.R. Passenger Co., 928 F.2d 24

SEE Seer crvnnsstessssasevsuminsceseemenmameennnnmnes 7

Preiser v. Rodriguez, 411 U.S. 475 (19738)...............0c0000000 20

Purkett v. Elem, 514 U.S. 765 (1995) ..........ccccccccccceceeeeeeeeees 9

Ripley v. Childress, 695 F. Supp. 507 (D.N.M. 1988)........ 21

Rodriguez v. United States, 286 F.3d 972 (7th Cir.

ITE consnsuensvecusonmesnmetnetennnseiesenemenemianmnnmen 18

Scarborough v. Principi, U.S , 124 S. Ct.

Se Ee ecennsvescecctnencemtemenssmmenmetnneineemmenemennenests 13

Schiavone v. Fortune, 477 U.S. 21 (1986) .................0000008 16

Seaboard Air Line R. Co. v. Renn, 41 U.S. 290

ii bncdeaninnnnsccsnnmennsninessnsnenmmcapnsnenenstntiuietnindnendaninennteten 13

Seidel v. Lee, 954 F. Supp. 810 (D. Del. 1996)................... 20

Strickland v. Washington, 466 U.S. 668 (1984).................. 9

Tahoe Sierra Preservation Council, Inc. v. Tahoe

Regi Planning Agency, 34 F.3d 753 (9th Cir.

SEISIETI cncsnentusnnenansendadenntencesensnntansenenmentesnesinsssemeomemenene 19

Thompson v. Keohane, 516 U.S. 99 (1995)............:cccccccceeees i)

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

TETITIIID crnccnassntecnescnnsenenssessscenssesemesnmseintanesnepeenanintnss 2, 3, 13

United States v. Craycraft, 167 F.3d 451 (8th Cir,

IITTEI ceconcecneensnnnsnenanscesnssnenennnsansnensnnsnenssneunteinnsamtnstesentneneses 9

United States v. Duffus, 174 F.3d 333 (3d Cir. 1999).......... 8

United States v. Hicks, 283 F.3d 380 (D.C. Cir. 2002).......... 8

vi

TABLE OF AUTHORITIES — Continued

Page

United States v. Pittman, 209 F.3d 314 (4th Cir.

SIT cveaciensenciedisssnittinaslineepcieblinasithiashialatmsisiabinietiniadasiinuinds 3, 8, 12, 19

Whitman v. American Trucking Associations, 531

See CE CITE ssenicinetinhinreindatichiehisidaiciatlinashisiniasisiinainiibdeiaalasistiainiaial 9

Woodford v. Garceau, 538 U.S. 202 (2003).............ccccc cece 4

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

ETITIUIE? crincsssiniesiansatissiniipaniincipinasianinpenasaisneliieleniiiaasiinsianiatasiatedibaiiiunaniiiiinasiie 8

STATUTES

| re ee eT ae 4

es OE borcicisersnicnnnnnnineinmnintnendionsimeiimnsiniaaiiaainaniaiiidigit 8

ee UG icccennseinenennsseensnininisnennnataiiaminsteiiimianaidiit 8, 16

Ue Ue iicitaciseiichiseieihciiiiaiiaiapiaaaiparietieiaciaiaiansaearaaaeds 20

RULES

Federal Rule of Civil Procedure 8..................ccccccecsseseseeeeeees 7

Federal Rule of Civil Procedure 10..................ccccccceeeeeeeees 10

Federal Rule of Civil Procedure 15....................cc0000 passim

nT 2, 5,6

ee eee I ei icercerenecsiiasinesiiceenanpinicacsnticlealiebiiiainlcatiaia 17

OTHER MATERIALS

28 U.S.C. § 2254, Petition for Relief from a Convic-

tion or Sentence By a Person in State Custody

(Petition Under 28 U.S.C. § 2254 for a Writ of

I CIID cciscnsecnsntssiesiccsicieteininiiitetaaniiaiainianaiasgtiaialamaiaiei 5

Vii

TABLE OF AUTHORITIES — Continued

Advisory Committee Notes to 28 U.S.C. § 2254,

EECA e Ree en eee ne omen eR

Advisory Committee Notes to 28 U.S.C. § 2254,

Advisory Committee Note to the 1991 amendments

of Federal Rule of Civil Procedure 15......................

BLACK’s LAW DICTIONARY (6th ed. 1990) .................00.6

FEDERAL PROCEDURE: LAWYERS EDITION (1996)...........

HERTZ, R. & LIEBMAN, J., FEDERAL HABEAS CORPUS

PRACTICE AND PROCEDURE (3d ed. 1998) ..............+++

LEWIS, JR., HAROLD S., The Excessive History of

Federal Rule 15(c) and its Lessons for Civil Rules

Revision, 85 MICH. L. REV. 1507 (1987).............000085

MERRIAM WEBSTER’S COLLEGIATE DICTIONARY (10th

Moore, J., Moore’s Federal Practice (2d ed. 1985) ......

WEBSTER’S NEW WORLD DICTIONARY (2d ed. 1986)......

WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY

WRIGHT & MILLER, FEDERAL PRACTICE & PROCE-

NC nT oe ra See

WRIGHT & MILLER, FEDERAL PRACTICE & PROCE-

GR ESTEE REET Senor vee

ee eel te - —

1

INTEREST OF THE AMICI CURIAE

Amici States have a compelling interest in promoting

the finality of their criminal convictions. In furtherance of

this interest, the Antiterrorism and Effective Death

Penalty Act (AEDPA) provides strict time limitations for

state prisoners seeking federal habeas corpus relief.

Absent specific enumerated exceptions, AEDPA requires

prisoners to bring all their claims in one petition within a

year of their state convictions becoming final. The Ninth

Circuit, however, has construed Federal Rule of Civil

Procedure 15(c)(2) in an unreasonably broad manner,

which allows prisoners to amend their petitions to add an

unlimited number of otherwise time-barred claims and

make an end-run around AEDPA’s 1-year limitation

period. This construction amounts to a substantial judicial

repeal of AEDPA’s time-limitations. Amici States have a

compelling interest in preventing such circumvertion and

ensuring that only timely-raised claims are subject to

federal habeas review.

¢

SUMMARY OF ARGUMENT

The Ninth Circuit’s unreasonably broad construction

of Federal Rule of Civil Procedure 15(c)(2) allows prisoners

to add otherwise-time-barred claims even though they do

not relate to the claims raised in the original petition. JA §

(“[A] prisoner’s new claim arises out of the same transac-

tion or occurrence as his original petition because the

transaction or occurrence in issue is his state trial and

conviction.”). Although this circumvents AEDPA’s 1-year

limitation period by allowing prisoners to bring any new

claim regardless of its relation to the original claim(s),

that is not the primary focus of this brief. Rather, the

2

arguments below demonstrate that the Ninth Circuit’s

holding is inconsistent with the plain language of Rule

15(cX2), and inconsistent with the application of the rule

in the general civil arena.

First, while the Ninth Circuit has construed Rule

15(cX2) to allow an amendment to relate back to the

original petition so long as it concerns the same trial and

sentence, Rule 15(c)(2) only allows a new claim to relate

back if it arose out of the same “conduct, transaction, or

occurrence set forth” in the original pleading. Although a

prisoner necessarily references his trial and conviction in a

habeas application, the conduct, transaction, or occurrence

set forth in the petition is that which, if true, would entitle

the prisoner to habeas relief. In order to be entitled to

habeas relief, a prisoner must allege facts amounting to a

violation of a federal right. See, e.g., 28 U.S.C. § 2254, Rule

2(c) (providing that a habeas petition must, inter alia,

“specify all the grounds for relief available to the peti-

tioner” and “state the facts supporting each ground”).

Thus, in the habeas context, the relevant conduct, transac-

tion, or occurrence set forth for purposes of Rule 15(c)(2) is

the underlying factual predicate for the alleged violation of

a federal right. A new claim, therefore, will only relate

back under Rule 15(c)(2) if it arose out of the same set of

facts set forth in the original petition.

Second, the Ninth Circuit’s definition of “conduct,

transaction, or occurrence” conflicts with the generally-

accepted view that this phrase relates to the operative or

core facts alleged in the original pleading. Indeed, this was

the approach taken by this Court 60 years ago when it

applied Rule 15(c)(2) in a wrongful death case. Tiller v.

Atlantic Coast Line R. Co., 323 U.S. 574, 580-81 (1945).

There, both the original and amended claims involved the

3

death of the deceased at a railroad yard. Id. This Court

held that the amendment alleging a statutory basis for

relief related back when it “related to the same general

conduct, transaction and occurrence which involved the

death of the deceased.” Jd. at 581.

Consistent with Tiller, courts and commentators have

given Rule 15(c)(2) a relatively narrow scope. Amendments

that merely correct technical deficiencies or expand or

modify the facts alleged in the original pleading will relate

back, but those that present an entirely new claim for

relief will not. See generally, 6A WRIGHT & MILLER, FED.

Prac. & Proc: Civ. 2D, § 1497 (2004); see also Farris v.

United States, 333 F.3d 1211, 1215 (11th Cir. 2003) (“Con-

gress ... did not inten([d] for [Rule 15(c)] to be so broad to

allow an amended pleading to add an entirely new claim

based on a different set of facts.”). Given these parameters,

the general standard has been that relation back is al-

lowed when a new claim arises out of the same operative

or core facts alleged in the original claim. A claim in the

habeas context is a fact-based assertion that a particular

federal right was violated. Amendments clarifying or

_ modifying the facts alleged in the original petition, there-

fore, relate back, while entirely new claims alleging

violations of other rights do not.

As noted by the Fourth Circuit, construing “conduct,

transaction, or occurrence” as a prisoner’s trial and sen-

tence interprets the relevant events “at too high a level of

generality.” United States v. Pittman, 209 F.3d 314, 318 (4th

Cir. 2000). Such a general relationship is an insufficient

basis to allow for the relation back of amendments. An

employee, for example, may not amend a complaint to add

new claims against an employer merely because the claims

arose out of the same employer-employee relationship. See,

4

e.g., Nettis v. Levitt, 241 F.3d 186, 193 (2d Cir. 2001)

(proposed amendment alleging employment retaliation did

not relate back where it was “based on an entirely distinct

set of protected employee activity”). Thus, even in the

general civil context, Rule 15(c\(2) only allows relation

back when there is a specific factual relation between the

claims asserted in the new and the original claim.

In sum, both the plain language of Rule 15(c)(2) and

the construction of the rule in the general civil arena

demonstrate that the Ninth Circuit’s interpretation of

“conduct, transaction, or occurrence” to mean a prisoner’s

trial and sentence is untenable.

¢

ARGUMENT

I. IN THE HABEAS CONTEXT, THE “CONDUCT,

TRANSACTION, OR OCCURRENCE SET

FORTH” IN THE ORIGINAL PLEADING IS

THE FACTUAL BASIS FOR THE CONSTITU-

TIONAL VIOLATION.

Federal Rule of Civil Procedure 15(c)(2) provides: “An

amendment of a pleading relates back to the date of the

original pleading when .. . the claim or defense asserted in

the amended pleading arose out of the conduct, transac-

tion, or occurrence set forth or attempted to be set forth

in the original pleading.” Purporting to apply a “literal

’ A habeas petition may be amended as provided in the Rules of

Civil Procedure. 28 U.S.C. § 2242. The “original habeas petition,”

therefore, would be the “original pleading” referenced in Rule 15(c)(2).

See Woodford v. Garceau, 538 U.S. 202, 208 (2003) (“[A] habeas suit

begins with the filing of an application for habeas corpus relief — the

equivalent of a complaint in an ordinary civil case.”).

|

5

application of Rule 15(c),” the Ninth Circuit held that, in

the habeas context, “conduct, transaction, or occurrence”

encompasses a petitioner’s entire “trial and conviction.” JA

11. This, however, misconstrues Rule 15(c)\(2)’s limiting

parameters.

1. The application of Rule 15(c\2) in the habeas

context necessarily involves a determination of what

conduct, transaction, or occurrence is “set forth” in a

habeas petition. This is controlled by Habeas Rule 2(c),

which provides, inter alia, that a habeas petition must:

“(1) specify all the grounds for relief available to the

petitioner; [and] (2) state the facts supporting each

ground.” 28 U.S.C. § 2254, Rule 2(c).’ Rule 2(c)’s fact-

pleading requirement is incorporated into the pro se form

annexed to the Rules Governing Section 2254 in the

United States District Courts:

CAUTION: You must include in this petition all

the grounds for relief from the conviction or sen-

tence that you challenge. And you must state the

facts that support each ground. If you fail to set

forth all the grounds in this petition, you may be

barred from presenting additional grounds at a

later date.

28 U.S.C. § 2254, Petition or Relief from a Conviction or

Sentence By a Person in State Custody (Petition Under 28

U.S.C. § 2254 for a Writ of Habeas Corpus), at 1 (original

emphasis); see also id. at 6 (instructing prisoners to

“[s]tate the facts supporting each ground” and informing

* The former version of the rule similarly provided that a habeas

petition “shall specify all the grounds for relief .. . and shall set forth in

summary form the facts supporting each of the grounds thus specified.”

28 U.S.C. § 2254, Rule 2(c) (amended effective Dec. 1, 2004).

6

them they afe not required to “argue or cite law,” but

rather are only required to “state the specific facts that

support” each claim) (original emphasis); see also

McFarland v. Scott, 512 U.S. 849, 856 (1994) (citing 28

U.S.C. § 2254 Rule 2(c) and statinq that “[hlabeas corpus

petitions must meet heightened p'« ading requirements”).

As observed in the comments to Habeas Rule 2(c), “it

is the relationship of the facts to the claim asserted that is

important” in a habeas petition. 28 U.S.C. § 2254, Rule

2(c) Advisory Committee Notes; see also 28 U.S.C. § 2254,

Rule 4 Advisory Committee Notes (“[NJotice pleading is

not sufficient, for [a habeas] petition is expected to state

facts that point to a real possibility of constitutional

error.”) (citation and internal quotations omitted); 1 R.

HERTz & J. LIEBMAN, FEDERAL HABEAS CORPUS PRACTICE

AND PROCEDURE § 11.6 (3d ed. 1998) (noting that the “fact

pleading” requirement of the habeas rules is more strin-

gent than “notice pleading” and requires petitioners to “at

least summarily plead specific facts supporting each claim

for relief”).

Indeed, a habeas petition that does not set forth a

factual basis for a claim is subject to dismissal. See

McFarland, 512 U.S. at 856 (“Federal courts are author-

ized to dismiss summarily any habeas petition that ap-

pears legally insufficient on its face... .”); see also Hill v.

Lockhart, 474 U.S. 52, 60 (1985) (affirming dismissal of a

habeas petition without a hearing when it did not allege

sufficient facts to demonstrate the prejudice required for

an ineffective assistance of counsel claim); James v. Borg,

24 F.3d 20, 26 (9th Cir. 1994) (“Conclusory allegations

which are not supported by a statement of specific facts do

not warrant habeas relief.”); see also WRIGHT & MILLER, 5

Fep. Prac. & Proc. Civ. 3p § 1241.1, at 420 (2004) (“A

7

petition for a writ of habeas corpus has been held insuffi-

cient if it alleges conclusions that are not supported by

facts.”). Therefore, given the fact-specific pleading re-

quirements of a habeas petition, the “conduct, transaction,

or occurrence set forth” in a petition necessarily refers to

the facts set forth in the petition.

2. Even if the fact-pleading requirements of Habeas

Rule 2(c) are not considered, the Ninth Circuit’s holding

still ignores Rule 15(c)’s requirement that, in order to

relate back, a new claim must arise from the conduct,

transaction or occurrence “set forth” in the original plead-

ing. Fed. R. Civ. P. 15(c)(2). See MERRIAM WEBSTER’S

COLLEGIATE DICTIONARY, 1071 (10th ed. 1995) (“set forth”

means “to give an account or statement of”). Any type of

pleading document must set forth some type of claim by

alleging minimal facts that support a cognizable ground

for relief. See, eg., Fed. R. Civ. P. 8(aX2) (“A pleading

which sets forth a claim for relief ... shall contain ... a

short and plain statement of the claim showing that the

pleader is entitled to relief. . . .”); see also Conley v. Gibson,

355 U.S. 41, 47 (1957) (noting that even under the current

liberal pleading requirements, a complaint must nonethe-

less “give the defendant fair notice of what the plaintiff’s

claim is and the grounds upon which it rests”). The con-

duct, transaction, or occurrence set forth in any pleading

document, therefore, is the factual scenario a particular

claim is predicated upon. See, e.g., O'Loughlin v. Natl R.R.

Passenger Corp., 928 F.2d 24, 27-28 (1st Cir. 1991) (noting

that in cases where amendments are allowed under Rule

15(cX2), “it was the allegations in the complaints that

provided the most substantial notice of the transaction or

occurrence at issue”). A new claim, therefore, can only

relate back if it arose from the factual basis that under-

pins the claim(s) set forth in the original pleading.

A habeas claim is predicated on specific facts alleging

a violation of a federal right. See. e.g., Engle v. Issac, 456

U.S. 107, 119 (1982) (a challenge to a state court’s eviden-

tiary ruling is not cognizable in a habeas petition because

it alleges “no deprivation of federal rights”); see also 28

U.S.C. § 2244(b\2\B) (using the term “factual predicate”

in reference to second or successive petitions). In other

words, a habeas claim is no claim at all if it does not

contain sufficient facts to allege a violation of federal

rights. Therefore, a habeas petition that merely “set forth”

a prisoner’s “trial and conviction” would clearly be insuffi-

cient. See, e.g., Adams v. Armontrout, 897 F.2d 332, 333

(8th Cir. 1990) (“We do not believe that 28 U.S.C. § 2254 or

the Section 2254 Rules require the federal courts to review

the entire state court record of habeas corpus petitioners

to ascertain whether facts exist which support relief.”)

(collecting cases). Thus, although a habeas petition may

reference the prisoner’s trial and sentence, the trial and

sentence are not the relevant conduct, transaction, or

occurrence set forth as a basis for a constitutional claim.

Indeed, a majority of Circuit Court of Appeals have come

to this conclusion in determining the scope of Rule 15(c2)

to cases arising under 28 U.S.C. § 2255. See United States

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

States, 278 F.3d 1218, 1221 (11th Cir. 2002); Woodward v.

Williams, 263 F.3d 1135, 1142 (10th Cir. 2001); United

States v. Pittman, 209 F.3d 314, 317-18 (4th Cir. 2000);

United States v. Duffus, 174 F.3d 333, 337-38 (3d Cir.

—~7=—_—_—

1999); United States v. Craycraft, 167 F.3d 451, 457 (8th

Cir. 1999).’

3. By ignoring the requirement that the relevant

“conduct, transaction, or occurrence” be set forth in the

original pleading, the Ninth Circuit ignores the context in

which these terms are used. See Whitman v. American

Trucking Associations, 531 U.S. 457, 466 (2001) (“Words

that can have more than one meaning are given content

... by their surroundings. . . .”). Since all pleadings have

some factual basis, “conduct,” in the context of a pleading

requirement, can only mean particular behavior that

forms the basis for a claim. See, e.g., BLACK’s Law Dic-

TIONARY, 295 (6th ed. 1990) (defining “conduct” as: “Per-

sonal behavior; deportment; mode of action; any positive or

negative act.”); WEBSTER’S THIRD NEW INTERNATIONAL

DICTIONARY, 474 (1986) (defining “conduct” as “behavior in

a particular situation”). In the habeas context, the word

“conduct” can readily be applied to specific action by the

state, counsel, or the trial court, which allegedly consti-

tutes a violation of federal or constitutional rights. See,

e.g., Banks v. Dretke, 540 U.S. 668, 696 (2004) (discussing

the “conduct” of a prosecutor as relevant to a Brady

violation); Thompson v. Keohane, 516 U.S. 99, 100 (1995)

(discussing a “law enforcement officer’s conduct” in regard

to Miranda issue); Purkett v. Elem, 514 U.S. 765, 768

(1995) (discussing trial judge’s role in deciding Batson

challenges); Strickland v. Washington, 466 U.S. 668, 636

* Although some of these decisions discuss the ramifications of an

overly-broad construction of Rule 15(cX2) to AEDPA’s limitations

periods, ultimately their holdings rest on a plain application of the rule.

See, e.g., Craycraft, 167 F.3d at 457 (“Failing to file an appeal is a

separate occurrence in both time and type from a failure to pursue a

downward departure or failure to object to the type of drugs at issue.”).

10

(1984) (discussing defense counsel’s “conduct” in the

context of an ineffective assistance of counsel claim). Thus,

in the habeas context, “conduct” necessarily means the

specific factual basis for a particular constitutional claim.

The ordinary meaning of “transaction,” on the other

hand, “necessarily implies some type of business dealing

between parties.” Hawthorne v. Mac Adjustment, Inc., 140

F.3d 1367, 1371 (11th Cir. 1998); see also BLACK’S, at 1496

(defining “transaction” as the “la)ct of transacting or

conducting any business;”); WEBSTER’S NEW WORLD Dic-

TIONARY, 1509 (2d ed. 1986) (defining “transaction” as “a

business deal or agreement”). A criminal trial is simply not

a “transaction” in any usual sense of the word. See

BLACK’S, at 1504 (defining trial as “[a] judicial examina-

tion and determination of issues between parties to action,

whether they be issues of law or of fact, before a court that

has jurisdiction.”). Thus, the term “transaction,” as used in

Rule 15(c)(2), has no ready application in habeas proceed-

ings.

Granted, out of context, the flexible word “occurrence”

can be broadly construed to include a criminal trial. See

BLACK’S, at 1080 (defining “occurrence” to include “[a)ny

incident or event”). Context, however, is particularly

important where a term is pliable. See, e.g., Leocal v.

Ashcroft, __ U.S. ___, 125 8. Ct. 377, 382 (2004) (“Particu-

larly when interpreting a statute that features as elastic a

word as ‘use,’ we construe language in its context and in

light of the terms surrounding it.”). Rule 15(c\2) refer-

ences “conduct, transaction, or occurrence” as events set

forth in an original pleading. The relevance of the conduct,

transaction, or occurrence is that it provides the basis for

legal action. Cf. Fed. R. Civ. P. 10(b) (“Each claim founded

upon a separate transaction or occurrence ... shall be

11

stated in a separate count ... whenever a separation

facilitates the clear presentation of the matters set

forth.”). Thus, although a broad definition of “occurrence”

could conceivably encompass a trial, in the context of Rule

15(c\(2), the occurrence set forth in a habeas petition is

necessarily a specific violation of a federal right.

The conclusion that “occurrence,” as used in Rule

15(c\(2), should not be construed to give it unlimited scope

is supported by the doctrine of noscitur a sociis, which

means that “a word is known by the company it keeps.”

Gustafson v. Alloyd Co., Inc., 513 U.S. 561, 575 (1995).

This doctrine avoids “ascribing to one word a meaning so

broad that it is inconsistent with its accompanying words,

thus giving [a statute] unintended breadth.” Jd. (internal

quotations and citation omitted). This doctrine, in turn, is

complemented by “the rule against superfluities,” which

“instructs courts to interpret a statute to effectuate all its

provisions, so that no part is rendered superfluous.” Hibbs

v. Winn, __ US. __, 124 S. Ct. 2276, 2286 (2004). If

“occurrence” is construed so broadly as to include any

incident or event (including a trial, conviction, or sen-

tence), the terms “conduct” and “transaction” would be

rendere ' superfluous because the “occurrence” alone

“would do all the necessary work.” Id. Thus, because

“conduct” and “transaction” are terms that denote specific

facts, “occurrence,” too, must be also be construed to

denote a “particular occurrence” which forms a claimed

basis for relief. Cf. Baldwin County Welcome Ctr. v. Brown,

466 U.S. 147, 150 n.3 (1984) (noting that the rationale of

the relation back allowed by Rule 15(c) is that a party has

been given notice of a “particular occurrence”) (emphasis

added).

12

Further, in construing “conduct, transaction, or

occurrence,” it is noteworthy that a claim also'relates back

when it arises out of the “conduct, transaction, or occur-

rence . . . attempted to be set forth in the original pleading.”

Fed. R. Civ. P. 15(c)(2) (emphasis added). Thus, the Rule

recognizes that, in some instances, an initial claim may

not be cognizable because of the lack of factual specificity.

This highlights that the facts or allegations in a pleading

must not merely reference some general relationship

between two parties or some general background context,

but rather must set forth sufficient specific conduct that

constitutes a cognizable claim.

In short, the Ninth Circuit construed the phrase

“conduct, transaction, or occurrence” at “too high a level of

generality.” Pittman 209 F.3d at 318. Because a prisoner is

required to plead facts to support a claim for habeas relief

based on a specific constitutional violation, it is those facts

that constitute the relevant “conduct, transaction, or

occurrence” for purposes of Rule 15(c)(2). The Ninth

Circuit erred, therefore, when it construed Rule 15(c)(2)’s

relation back provision to encompass the entirety of a

prisoner’s trial and sentence, regardless of the facts set

forth in the initial application.

II. RELATION BACK UNDER RULE 15(C)(2) HAS

ALWAYS BEEN INTERPRETED TO REQUIRE

A COMMON FACTUAL NEXUS BETWEEN

THE AMENDED CLAIMS AND THE ORIGI-

NAL CLAIMS.

1. Although the above analysis largely focuses on the

fact-pleading requirements in habeas proceedings, courts

and commentators have always construed Rule 15(c)(2) to

require a factual nexus between the amended and the

13

original claims. Indeed, this was the approach taken by

the courts even prior to the 1938 effective date of the

Federal Rules of Civil Procedure. As this Court recently

noted, the concept of “relation back” existed as an equita-

ble doctrine prior to the adoption of the Rules of Civil

Procedure. Scarborough v. Principi, __ U.S. __, 124

S. Ct. 1856, 1867 (2004). In discussing the history of the

doctrine, Scarborough cites three pre-1938 train-injury

cases, each of which allowed a plaintiff to amend a wrong-

ful death complaint to add a claim — based on the same

facts — that the death violated the Employers’ Liability

Act. Id.‘ Consistent with this pre-Rule precedent, this

Court subsequently construed Rule 15(c)(2) to allow a

plaintiff to add a new theory of recovery for a wrongful

death action where both the original and amended claims

sought “to recover damages for the alleged wrongful death

of the deceased.” Tiller v. Atlantic Coast Line R. Co., 323

U.S. 574, 580-81 (1945). Applying the language of Rule

15(cX2), the Court stated that the allegations in both

claims “related to the same general conduct, transaction

and occurrence which involved the death of the deceased.”

Id.

More recently, this Court commented, albeit in pass-

ing, that for the purposes of Rule 15(c)(2), an amendment

* See New York Central & Hudson River R. Co. v. Kinney, 260 U.S.

340, 346 (1922) (amended complaint related back to wrongful death

action because the amendment merely “expanded or amplified” the

conduct alleged in the original claim); Seaboard Air Line R. Co. v. Renn,

241 U.S. 290, 293-94 (1916) (allowing amendment where “[t}he facts

constituting the tort were the same” as originally set forth); Missouri,

K. & TR. Co. v. Wulf, 226 U.S. 570, 575-76 (1913) (allowing amendment

that did not “modify[] or enlarge) the facts upon which the action was

14 .

relates back if it concerns “a particular occurrence” noticed

in the original pleading. Baldwin County Welcome Ctr. v.

Brown, 466 U.S. 147, 150 n.3 (1984). This comment was

followed by an admonition that, even under a liberal

pleading standard, a pleading must “give the defendant

fair notice of what the plaintiff’s claim is and the grounds

upon which it rests.” Id. (citing Conley v. Gibson, 355 U.S.

41, 47 (1957)). Therefore, this Court’s limited discussion of

Rule 15(c)(2) has been consistent with the general, narrow

scope that Rule 15(c) is given by the commentators:

[A]mendments that merely correct technical defi-

ciencies or expand or modify the facts alleged in

the earlier pleading meet the Rule 15(c) test and

will relate back. Thus, amendments that do noth-

ing 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). But, if the alteration of the

original statement is so substantial that it can-

not be said that [the other party] was given ade-

quate notice of the conduct, transaction, or

occurrence that forms the basis for the claim or

defense, then the amendment will not relate

back and will be time barred if the limitations

period has expired.

6A WRIGHT & MILLER, FED. Prac. & Proc. Civ. 2D § 1497,

at 74-79 (1990); see also Farris v. United States, 333 F.3d

1211, 1215 (11th Cir. 2003) (“Congress intended Rule 15(c)

to be used for a relatively narrow purpose; it did not

inten[d] for the rule to be so broad to allow an amended

pleading to add an entirely new claim based on a different

set of facts.”); Fed. R. Civ. P. 15, Advisory Committee Note

to the 1991 amendments (“the rule has been revised to

prevent parties against whom claims are made from

15

taking unjust advantage of otherwise inconsequential

pleading errors to sustain a limitations defense.”); 27A

FEDERAL PROCEDURE: LAWYERS EDITION § 62:338 p. 129

(1996) (“[A] new and totally unrelated cause of action will

not relate back.”); 3 J. MOORE, Moore’s Federal Practice

q 15.15[3], at 15-147 to 149 (2d ed. 1985) (“[A]n amend-

ment which states an entirely new claim for relief based

on different facts will not relate back.”).

2. Consistent with Rule 15(c)’s generally-recognized

narrow scope, in order to relate back an amended claim

must contain the same set of core or operative facts as

contained in the original pleading. See, e.g., Bensel v.

Allied Pilots Ass’n, 387 F.3d 298, 310 (3d Cir. 2004) (“In

essence, application of Rule 15(c) involves a search for a

common core of operative facts in the two pleadings.”).

Thus, Rule 15(c)(2)’s “arising out” approach to relation

back allows courts “to measure the allegations of the

amended pleading against the relatively concrete datum of

operative facts” in the original complaint. HAROLD S.

LEWIS, JR., The Excessive History of Federal Rule 15(c) and

its Lessons for Civil Rules Revision, 85 MIcH. L. REV. 1507,

1513 (1987); see also 27A FEDERAL PROCEDURE: LAWYERS

EDITION § 62:336, at 127 (1996) (“The District Court

should analyze the original complaint and proposed

amendment in order to determine whether they shared a

common core of operative facts sufficient to impart fair

notice of the transaction, occurrence, or conduct called into

question.”). Indeed, the Ninth Circuit generally applies the

“operative facts” test to determine if an amendment

relates back. See, e.g., FD.I.C. v. Jackson, 133 F.3d 694,

702 (9th Cir. 1998) (stating that a district court should

compare the amended claim to the original pleading “to

determine whether they share a common core of operative

16

facts sufficient to impart fair notice of the transaction,

occurrence, or conduct called into question”) (internal

quotation and citation omitted); Martell v. Trilogy Lid.,

872 F.2d 322, 326 (9th Cir. 1989) (allowing relation back

“where the facts originally alleged against [the defendant]

share[d] a common core of operative facts” with those in

the amended pleading).

The Ninth Circuit rejected this approach in the

instant case, however, because it believed it would render

Rule 15(c)(2) “virtually meaningless in the habeas con-

text.” JA at 11. Apparently, therefore, the Ninth Circuit

recognized the correct standard, but decided to apply a

different one so that Rule 15(c)(2) is more readily available

in the habeas context. As this Court has stated in consid-

ering Rule 15(c)(3), however, a Rule of Civil Procedure

should be construed as “meaning what it says.” Schiavone

v. Fortune, 477 U.S. 21, 30 (1986) (declining to chose

between a “liberal” and “technical” approach toward Rule

15(c)(3) and, instead, accepting “the Rule as meaning what

it says”). What Rule 15(c)(2) says is that new claims relate

back only if they arose from the same “conduct, transac-

tion, or occurrence set forth” in the original pleading — it

does not say that new claims relate back if they have

“some general relation” to that pleading.

3. Further, a straight-forward application of Rule

15(c)(2) does have a place in the habeas context. See, e.g.,

Mandacina v. United States, 328 F.3d 995, 1000-01 (8th

Cir. 2003) (amended Brady claim concerning particular

report related back to original Brady claim that govern-

ment failed to disclose investigative information obtained

by a particular police department); Mederos v. United

States, 218 F.3d 1252, 1253-54 (11th Cir. 2000) (second

§ 2255 motion that corrected technical deficiencies related

17

back to the original motion); Lawton v. United States, 184

F. Supp. 2d 419, 424 (E.D. Pa. 2002) (amended claim that

“amplified” the facts in the original petition related back).

Rule 15(c)(2), however, should not be stretched in the

habeas proceedings merely so that it will have greater

application than the language of the rule itself provides.’

Given the unique nature of habeas proceedings, it is

only to be expected that Rule 15(c)(2) will have a some-

what limited role. The typical claims governed by the

Federal Rules of Civil Procedure have not previously been

processed through state court proceedings. In contrast, the

only claims that can form the basis for habeas relief are

those that have been presented to the state courts. See

Gray v. Netherland, 518 U.S. 152, 162-63 (1996) (“[Flor

purposes of exhausting state remedies, a claim for relief in

habeas corpus must include reference to a specific federal

constitutional guarantee, as well as a statement of the

facts that entitle the petitioner to relief.”); see also Kelly v.

Small, 315 F.3d 1063, 1066 (9th Cir. 2003) (“The state

prisoner must describe in the state proceedings both the

operative facts and the federal legal theory on which his

claim is based so that the state courts have a ‘fair oppor-

tunity to apply controlling legal principles to the facts

bearing upon his constitutional claim.”) (emphasis added).

Thus, unlike a civil litigant, who may develop a new

theory of relief through discovery, as well as the factual

* Habeas Rule 11 provides: “The Federal Rules of Civil Procedure,

to the extent that they are not inconsistent with any statutory provi-

sions or these rules, may be applied to a proceeding under these rules.”

28 U.S.C. § 2254, Rule 11. The Ninth Circuit’s analysis, however, turns

Rule 11 on its head by expanding the scope of a Federal Rule of Civil

Procedure so it will have greater applicability than the language of the

Rule itself permits.

18

basis thereof, habeas litigants are generally in a position

to know their grounds for relief when they come to federal

court. It is only to be expected, therefore, that Rule 15(c)(2)

will have a more limited application in habeas proceed-

ings.

4. In reaching its conclusion that conduct, transac-

tion, or occurrence means a prisoner’s “trial and sentence,”

the Ninth Circuit relied heavily on the Seventh Circuit’s

decision in Ellzey v. United States, 324 F.3d 521 (7th Cir.

2003). In Ellzey, the Seventh Circuit acknowledged that a

habeas petition requires “fact pleading,” but nevertheless

concluded that “[a] prisoner who comes up with ten differ-

ent ways to contest his sentence still is litigating about a

single transaction or occurrence (the supposedly unlawful

sentence).” 324 F.3d at 524, 526. A state prisoner, how-

ever, is not “litigating about” his trial or sentence, he is

“litigating about” a claimed violation of a federal right. As

discussed in Section I, supra, a prisoner who merely “sets

forth” his trial and sentence as a basis for relief does not

state a cognizable habeas claim. Thus, like the Ninth

Circuit, the Seventh Circuit ignored Rule 15(c)(2)’s re-

quirement that, in order to relate back, an amendment

must arise out of the “conduct, transaction, or occurrence

set forth” in the original pleading, which, in the habeas

context, is the claimed violation of rights. |

* Ellzey effectively overruled a Seventh Circuit decision adopting

the view taken by the other circuits, namely, that in order for a claim to

relate back, it must have “more in common with the timely filed claim

than the mere fact that they arose out of the same trial and sentencing

proceedings.” Rodriguez v. United States, 286 F.3d 972, 980 (7th Cir.

2002) (citing Dean v. United States, 278 F.3d 1218, 1221 (11th Cir.

2002)).

19

Again, at bottom, construing a trial (or sentencing) as

the relevant event for the purposes of Rule 15(c)(2) im-

properly interprets conduct, transaction, or occurrence “at

too high a level of generality.” Pittman 209 F.3d at 318.

Courts have refused to allow a claim to relate back where

there is no relation to the original claim other than being

part of some general overall dispute between the parties.

See, v.g., Nettis v. Levitt, 241 F.3d 186, 193 (2d Cir. 2001)

(proposed amendment alleging employment retaliation did

not relate back where it was “based on an entirely distinct

set of protected employee activity”); Tahoe Sierra Preserva-

tion Council, Inc. v. Tahoe Regional Planning Agency, 34

F.3d 753, 755 as amended, 42 F.3d 1306 (9th Cir. 1994)

(property owners’ amended claims against regional plan-

ning agency concerning a second plan did not relate back

to the original complaint based on the first plan);

McGregor v. Louisiana State Univ. Bd. of Sup’rs, 3 F.3d

850, 863-64 (5th Cir. 1993) (amended claim alleging due

process violations in regard to denial of request to go to

law school on part-time basis did not relate back to origi-

nal complaint alleging law school failed to reasonably

accommodate disability); Matter of Unroe, 937 F.2d 346,

349 (7th Cir. 1991) (IRS could not amend tax claim for one

year to include new claims for additional years that would

otherwise be barred by the statute of limitations); Forzley

v. AVCO Corp. Elec. Div., 826 F.2d 974, 981-82 (11th Cir.

1987) (holding that a claim “for retroactive overtime pay

did not arise out of the transaction or occurrence of the

original complaint,” which was for breach of contract).

Brown v. United States, 271 F. Supp. 2d 225, 230 (D.D.C.

2003) (employee’s amended complaint alleging breach of

settlement agreement did not relate back to her timely

filed original complaint alleging race discrimination

because the two matters did not deal with the same

20

nucleus of facts, time periods, or legal theories); Seidel v.

Lee, 954 F. Supp. 810, 815 (D. Del. 1996) (eight separate

investment transactions did not relate back to original

complaint because defendants lacked adequate notice

there would be claims based on additional transactions);

Burt v. CBS, Inc., 769 F. Supp. 1012, 1015-16 (S.D. Ohio

1990) (second-amended complaint, which first set forth

defamation claim arising out of third television broadcast

program regarding plaintiff’s medical practice, did not

relate back to filing date of original complaint which

asserted claims arising out of only two previous broadcasts

of program because each broadcast constituted a distinct

cause of action for defamation); Monks v. Marlinga, 732

F.Supp. 749, 754 (E.D. Mich. 1990) (claim of former

prosecutors that he was slandered following termination

did not arise out of conduct, transaction, or occurrence set

forth in original pleading challenging discharge); Holmes

v. Greyhound Lines, Inc., 757 F.2d 1563, 1566 (5th Cir.

1985) (amended complaint alleging that union breached

duty of fair representation did not relate back to original

complaint alleging arbitration award should be set aside

because of arbitrators’ conduct).

5. Finally, because a federal habeas claim must

allege facts amounting to a violation of federal law, § 1983

cases addressing Rule 15(c)(2) are particularly instructive.

Cf. Nelson v. Campbell, 541 U.S. 637, 124 S. Ct. 2117,

2122-25 (2004) (noting the similarities of a habeas claim

and a § 1983 claim); Preiser v. Rodriguez, 411 U.S. 475,

489 (1973) (holding that, although “the literal terms of

§ 1983” would appear to cover habeas challenges, the more

specific habeas statutory scheme controls where prisoners

challenge the fact or length of their confinement). Consis-

tent with the above analysis, these cases have allowed an

21

amendment to relate back to the original complaint only if

it arose out of the specific conduct, transaction, or occur-

rence that forms the basis for the specific constitutional

violation. Compare Jackson v. Suffolk County Homicide

Bureau, 135 F.3d 254, 256 (2d Cir. 1998) (even though

§ 1983 claims generally arose out of the same state-court

criminal proceedings, plaintiff’s First Amendment claims

did not relate back because they did not arise out of the

same conduct as the excessive force claim); Hooper v.

Sachs, 618 F. Supp. 963, 977 (D. Md. 1985) (amended

- § 1983 claim alleging illegal search and seizure did not

relate back to complaint alleging unlawful prosecution

claims because they were not based on the same “opera-

tional facts”), with Ripley v. Childress, 695 F. Supp. 507,

511-12 (D.N.M. 1988) (with one exception, amendments to

arrestee’s civil rights complaint would relate back to date

of original complaint because they did not change the

factual allegations in the original complaint in any sub-

stantial manner); Barrett v. United States, 622 F. Supp.

574, 592 (S.D.N.Y. 1985) (allowing plaintiff to amend

§ 1983 action to add a Bivens claim was permissible

because the claims paralleled each other and, thus, consti-

tuted the “same transaction or occurrence”).

In sum, both the plain language of Rule 15(c)(2) and

the consistent application of the rule in the general civil

arena demonstrate that the Ninth Circuit erred when it

concluded that “the conduct, transaction, or occurrence set

forth” in a habeas petition encompasses a state prisoner’s

entire trial, conviction, and sentence.

¢

22

CONCLUSION

The judgment of the court of appeals should be re-

versed.

Of Counsel:

DAN SCHWEITZER

750 First St., N.E.

Respectfully submitted,

TERRY GODDARD

Attorney General of the State of Arizona

Mary O’GRADY

State Solicitor General

RANDALL M. HOWE

Criminal Appeals Section Chief

MICHAEL O”’TOOLE

Assistant Attorney General and

(Counsel of Record)

1275 W. Washington St.

Phoenix, AZ 85007

(602) 542-8593

Washington, D.C. 20002

(202) 326-6010