# Amicus Curiae Brief — Mayle v. Felix

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0046%3A11

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2005
- **Citation:** 545 U.S. 644

## Text

Z,

No. 04-563

|
!
.

3n The
—_— Court of the United States

¢
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

¢

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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0046%3A11. Public record. Not legal advice.