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Ross v. Williams

United States Court of Appeals, Ninth Circuit

July 19, 2018

Ronald Ross, Petitioner-Appellant,
Williams, Warden; Attorney General for the State of Nevada, Respondents-Appellees.

          Argued and Submitted December 5, 2017 San Francisco, California

          Appeal from the United States District Court for the District of Nevada D.C. No. 2:14-cv-01527-JCM-PAL James C. Mahan, Senior District Judge, Presiding

          Jonathan M. Kirshbaum (argued), Assistant Federal Public Defender; Rene L. Valladares, Federal Public Defender; Office of the Federal Public Defender, Las Vegas, Nevada; for Petitioner-Appellant.

          Lawrence VanDyke (argued), Solicitor General; Matthew S. Johnson, Deputy Attorney General; Adam Paul Laxalt, Attorney General; Office of the Attorney General, Carson City, Nevada; for Respondents-Appellees.

          Before: Milan D. Smith, Jr. and Sandra S. Ikuta, Circuit Judges, and John D. Bates, [*] District Judge.

         SUMMARY [**]

         Habeas Corpus

         The panel affirmed the district court's judgment dismissing as untimely California state prisoner Ronald Ross's amended habeas corpus petition brought pursuant to 28 U.S.C. § 2254.

         Ross argued that the claims in his new petition, prepared with the assistance of counsel, arose out of facts set out in a state court order attached to his pro se original petition, and that the district court therefore erred in failing to apply the relation back doctrine in Fed.R.Civ.P. 15(c).

         The panel held that because Ross did not comply with Rule 2(c) of the Rules Governing Section 2254 Cases either directly or by incorporating (or attempting to incorporate) the facts in the Nevada Supreme Court affirmance into his original petition, that petition does not provide an aggregation of facts that can support the claims in his amended petition. The panel concluded that the district court therefore did not err in concluding that Ross's amended petition cannot relate back to the claims in his original petition.

         Dissenting, District Judge Bates wrote that this court should liberally construe Ross's pro se original petition as setting out facts discussed in the attached state court decision, and should then remand for the district court to determine in the first instance whether the claims in the amended petition arose out of the conduct, transaction, or occurrence set out in his original petition.


          IKUTA, Circuit Judge.

         Ronald Ross filed an amended habeas petition eight months after the statute of limitations under Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) had run. The district court dismissed it as untimely and rejected Ross's argument that it related back to his original, timely petition. Ross argues that the claims in his new petition arose out of facts set out in a state court order attached to his original petition, and therefore the district court erred in failing to apply the relation back doctrine in Rule 15(c) of the Federal Rules of Civil Procedure (Civil Rule 15(c)). Because the facts set out in the state court order were not clearly incorporated into Ross's original petition, and Rule 2 of the Rules Governing Section 2254 Cases in the United States District Courts (Habeas Rule 2) precludes the court from construing the petition as incorporating such facts, we affirm.


         In 2009, Ronald Ross was convicted by a Nevada jury of several theft-related offenses. Ross, who had at least five prior felony convictions, including one for larceny, was sentenced under Nevada's habitual offender statute to a lifetime term of imprisonment with parole eligibility after 20 years. See Nev. Rev. Stat. §§ 207.010-.016. Ross timely appealed his conviction and sentence, and on November 8, 2010, the Nevada Supreme Court affirmed. Because Ross did not petition for certiorari, the Nevada Supreme Court's judgment became final on February 7, 2011, and AEDPA's one-year limitation period for Ross to file a federal habeas petition began to run. See 28 U.S.C. § 2244(d)(1)(A).

         On November 30, 2011, Ross timely filed a pro se petition for post-conviction relief (PCR) in Nevada state court, temporarily tolling the one-year period for his federal habeas petition. See 28 U.S.C. § 2244(d)(2). Ross asserted five claims for relief, including violations of his right to a speedy trial, and various theories of ineffective assistance of counsel. Ross also attached a 22-page handwritten memorandum, setting forth in great detail the factual bases for his claims. Ross repeatedly referred to this memorandum when the form petition asked for "supporting facts" for his claims. After Ross was appointed counsel, he filed a supplemental PCR petition, asserting six specific claims, as well as a claim that the cumulative effect of the alleged errors amounted to ineffective assistance of counsel.

         The state trial court denied Ross's amended PCR petition, and the Nevada Supreme Court affirmed on July 30, 2014. The Nevada Supreme Court's affirmance identified and rejected eight specific arguments for ineffective assistance of counsel, in addition to the cumulative error claim.[1] The Nevada Supreme Court's remittitur issued on August 18, 2014, and AEDPA's one-year limitation period began to run again the next day. See 28 U.S.C. § 2244(d)(2); Jefferson v. Budge, 419 F.3d 1013, 1015 n.2 (9th Cir. 2005).

         On September 14, 2014, Ross filed a timely pro se habeas petition in the U.S. District Court for the District of Nevada. Ross used the form "Petition for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254 By a Person in State Custody" promulgated by that district court in its local rules. See Habeas R. 2(d).[2] The habeas petition form stated: "Attach to this petition a copy of all state court written decisions regarding this conviction." The habeas petition form also provided detailed instructions, which guided habeas petitioners on how to fill in the blanks in each section of the form in order to explain each of their separate grounds for relief. The form begins with the instruction that the petitioner should "[s]tate concisely every ground" for habeas relief and "[s]ummarize briefly the facts supporting each ground." It also provided that Ross could "attach up to two extra pages stating additional grounds and/or supporting facts." The form further cautioned that Ross "must raise in this petition all grounds for relief that relate to this conviction. Any grounds not raised in this petition will likely be barred from being litigated in a subsequent action."

         At the top of the template for each ground for relief, the form contained the following sentence "I allege that my state court conviction and/or sentence are unconstitutional, in violation of my ___ Amendment right to ___, based on these facts: ___. . . ." Ross alleged three grounds for relief in the space provided by the form, alleging violations of his Fifth Amendment right to due process, his Sixth Amendment right to effective counsel, and his Fourteenth Amendment rights to due process and equal protection. In the space provided for supporting facts, however, Ross wrote substantially the same thing under each ground:

         Counsel was ineffective for failing to:

1) Secure a speedy trial
2) Failed to review evidence and adequately prepare
3) Failed to file pretrial motions
4) Failed to argue the prejudice of evidence lost prior to trial
5) Failed to prepare for jury selection
6) Failed to prepare for trial
7) Failed to retain defense experts
8) Failed to object to the state's use of expert witness.

         Ross also attached a handwritten affidavit explaining the reasons for his delay in obtaining a copy of the Nevada Supreme Court's ruling. Ross's affidavit explained that he was not listed on either the distribution list for the Nevada Supreme Court's order of affirmance on July 22, 2014, [3] nor on the distribution list for the court's remittitur on August 18, 2014. The affidavit further alleged that Ross did not receive a copy of the order of affirmance until September 11, 2014, as demonstrated by his signature and time stamp on the front of the envelope. To document both his absence from the distribution lists and the date he received the order of affirmance, he attached: (1) a copy of the Nevada Supreme Court's order of affirmance; (2) a copy of the Nevada Supreme Court's remittitur; (3) an envelope from his counsel; and (4) a letter from his counsel dated September 2, 2014, transmitting a copy of the Nevada Supreme Court's order.

         The district court appointed counsel for Ross, and on June 8, 2015, Ross filed an amended petition, raising 11 grounds for relief.[4] This petition was filed nearly eight months after AEDPA's one-year limitation period had expired. After the district court ordered a response, the state moved to dismiss Ross's amended petition as barred by the statute of limitations. The district court granted Nevada's motion to dismiss. It rejected Ross's argument that the facts contained in the Nevada Supreme Court's order of affirmance were incorporated in the original petition, and therefore rejected his contention that the claims in his new petition related back to the date of the original pleading. Nevertheless, the court granted a certificate of appealability on that issue.

         We have jurisdiction under 28 U.S.C. § 2253, and we review de novo a district court's dismissal of an application for a writ of habeas corpus. Jiminez v. Rice, 276 F.3d 478, 481 (9th Cir. 2001).


         Ross does not dispute that his new petition would be barred by the AEDPA statute of limitations unless it relates back to the original petition pursuant to Civil Rule 15(c). We therefore begin by considering the requirements of this rule in the habeas context.

         Civil Rule 15(c) allows an amendment to a pleading after the statute of limitations has run to relate back to the original pleading if it arises out of the same "conduct, transaction, or occurrence." Fed.R.Civ.P. 15(c). This rule is applicable to a habeas petition. See Mayle v. Felix, 545 U.S. 644, 655 (2005). "The 'original pleading' to which Rule 15 refers is the complaint in an ordinary civil case, and the petition in a habeas proceeding." Id. (emphasis added).

         Mayle provides guidance on what constitutes the same "conduct, transaction, or occurrence" in the context of a habeas petition. Id. at 656-59. The petitioner in that case had raised to the state court a Fifth Amendment claim based on the admission of statements made during the petitioner's pretrial interrogation and a Sixth Amendment claim based on the admission of videotaped statements made by a prosecution witness. Id. at 650. In a timely pro se habeas petition, the petitioner raised the Sixth Amendment claim, but not the Fifth Amendment claim. Id. at 651. Five months after AEDPA's statute of limitations had run, the petitioner sought to amend his petition to include a Fifth Amendment claim, arguing that the claim could relate back under Civil Rule 15(c) because "both . . . claims challenged the constitutionality of the same criminal conviction." Id. at 652. The Ninth Circuit agreed, reasoning that "the relevant 'transaction' for purposes of Rule 15(c)(2) was [petitioner's] 'trial and conviction in state court.'" Id. at 653 (quoting Felix v. Mayle, 379 F.3d 612, 615 (9th Cir. 2004)).

         The Supreme Court rejected this interpretation of "conduct, transaction, or occurrence." Id. at 659. Instead, Mayle held that "relation back depends on the existence of a common core of operative facts uniting the original and newly asserted claims." Id. (internal quotation marks and citation omitted). Even though petitioner's Sixth Amendment confrontation claim and Fifth Amendment privilege against self-incrimination claim made constitutional challenges to the admission of pretrial statements, these claims had to be "pleaded discretely" because they involved "separate congeries of facts supporting the grounds for relief," under Habeas Rule 2(c). Id. at 661. Each of these "separate congeries of facts," Mayle explained, "would delineate an 'occurrence.'" Id. In other words, for purposes of Civil Rule 15(c), an "occurrence" is an aggregation of facts supporting a discrete claim for relief, and a new claim must arise from the same aggregation of facts set forth in the earlier petition in order to relate back. An amendment cannot relate back to "facts that differ in both time and type from those the original [petition] set forth." Id. at 650.

         Mayle also highlighted the flaws in the rejected Ninth Circuit approach, under which "[a] miscellany of claims for relief could be raised later rather than sooner and relate back." Id. at 661. According to the Supreme Court, such an approach, which would define "conduct, transaction, or occurrence" to "encompass any pretrial, trial, or post-trial error that could provide a basis for challenging the conviction," would not only be too general, but would be contrary to Congress's intent in enacting the AEDPA statute of limitations. Id. at 661-62. "Congress enacted AEDPA to advance the finality of criminal convictions," in part by adopting a tight time line. Id. at 662. "If claims asserted after the one-year period could be revived simply because they relate to the same trial, conviction, or sentence as a timely filed claim, AEDPA's limitation period would have slim significance." Id. "Given AEDPA's 'finality' and 'federalism' concerns," Mayle held that this interpretation of Civil Rule 15's application to habeas proceedings was untenable. Id. at 663 (quoting Williams v. Taylor, 529 U.S. 420, 436 (2000)).

         In light of Mayle's strictures, Ross's amended petition may relate back to the original petition only if that petition set forth an aggregation of facts from which his new claims arise. The petition form contains no facts at all. Instead, Ross argues that the facts set forth in the Nevada state court affirmance are incorporated into the habeas petition, and the claims in his amended petition arose out of those facts. We now analyze this argument.


         Our first step is to determine when, under the applicable federal rules, an attachment to a habeas petition is deemed to be incorporated into that petition. This ...

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