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En Banc Ninth Circuit Provides Guidance on When Amended Habeas Petition ‘Relates Back’ to Original Claims to Avoid Dismissal as Untimely

Addressing what can often be a confusing issue for many pro se habeas petitioners, the en banc U.S. Court of Appeals for the Ninth Circuit held on February 24, 2020, that attaching a court order to a habeas application to support the claims is sufficient to allow a later amended petition to “relate back” to the original claims to avoid dismissal as untimely filed new claims.

The issue came before the Court after Ronald Ross filed a pro se federal habeas petition in the U.S. District Court for the District of Nevada raising eight claims for relief. In support of his claims, Ross attached a state court opinion that detailed the factual basis for the claims, which were the same ones he had raised in state court. Ross also moved for appointment of counsel, which was granted, and counsel filed a “First Amended Petition” adopting Ross’ eight claims, plus added three more.

Was Ross’ Amended Petition’s Claims Timely Filed?

The overarching question before the Ninth Circuit was whether Ross’ three new claims in the amended petition that counsel filed were time-barred. Ross had until October 27, 2014, to file his federal habeas petition, and he filed it on September 14, 2014. He duly met the original filing date. But counsel’s amended petition wasn’t filed until June 8, 2015, after extensions of time and new counsel. If those three additional claims by counsel “related back” to Ross’ original claims, then all 11 claims would be within the limitations period.

The district court granted the State’s motion to dismiss, arguing that those three additional claims were not related to the original claims. District Judge James Mahan concluded that the attached state court opinion was not properly referred to in Ross’ original petition to be considered in support of his claims, so there was nothing to which the amended petition could relate back. Ross timely appealed.

The “Relate Back” Doctrine

Under Federal Rule of Civil Procedure 15(c)(1), an amended petition filed after the statute of limitation has expired raising additional grounds to support the original claims may still be timely filed if the amendment “relates back to the date of the original pleading when ... the amendment asserts a claim or defense that arose out of the conduct, transaction, or occurrence set out — or attempted to be set out — in the original pleading.” The primary purpose of Rule 15(c) is to fix any deficiencies in the original petition. Amended grounds that correct or modify the original facts, restate the original claim with more particularity, or that amplify the details of the claims relate back under Rule 15(c).

Interpreting Rule 15(c), the Supreme Court held in Mayle v. Felix, 545 U.S. 644 (2005), that an amended petition does not relate back “when it asserts a new ground for relief supported by facts that differed in both time and type from those the original pleading set forth.” But an amendment that raises grounds “tied to a common core of operative facts” of the original claims does relate back, the Court explained.

This “core of operative facts” is the cornerstone in any amended petition filed after a deadline.

The Ninth Circuit pointed to one of Ross’ claims as a perfect example of meeting this requirement. Counsel had claimed in the amended petition ineffective assistance of counsel (“IAC”) when Ross’ trial counsel failed to object to the State’s failure to “provide any notice that it intended to present expert testimony” at trial. In Ross’ original petition, he claimed IAC for trial counsel’s failure to object “to the state’s use of an expert witness.” The “common core” was that trial counsel failed to challenge the State’s use of expert testimony, the Court said, finding that the amended claim did relate back to the original claim.

Was Ross’ Original Petition Sufficient to Allow the
Relate-Back Doctrine?

The § 2254 application clearly warns petitioners to “state concisely every ground for which you claim that the state court conviction and/or sentence is unconstitutional” and to “summarize briefly the facts supporting each ground.” A petitioner may attach additional pages to provide these grounds or facts. Thus, the petition forbids asserting generic claims of IAC without any details as to why counsel was ineffective.

The district court rejected Ross’ amended petition because it said he filed factually empty claims and simply referred to the state court opinion for the facts. The court said he failed to provide the facts in the petition itself, so the amended petition had nothing to relate back to. The Ninth Circuit, however, referred to its two-step rule to assess the relate-back doctrine. First, the court looks to the “core facts,” as defined in Mayle, and then it looks “to the body of the original petition and its exhibits to see whether the original petition set out or attempted to … set out a corresponding factual episode….”

Even when a new “legal theory” is proposed in an amended petition, but the facts are the same, there is a common core of facts to meet the relate-back doctrine, the Court instructed. The Court cited its decision in Nguyen v. Curry, 736 F.3d 1287 (9th Cir. 2013), where it determined that an amended claim of IAC for appellate counsel’s failure to raise a double jeopardy claim related back to an original claim of double jeopardy that did not include IAC.

The Ninth Circuit concluded that Ross’ amended petition, even if it offered a new legal theory, could still relate back to the factual bases of Ross’ original claims.

Was Ross’ Reference to the Attached State Court Opinion Enough?

Federal Rule of Civil Procedure 10(c), titled “Adoption by Reference; Exhibits,” says that “a statement in a [prior] pleading may be adopted by reference elsewhere in the same pleading or in any other pleading or motion” and that “a copy of a written instrument that is an exhibit to a pleading is part of the pleading for all purposes.” The State argued that the state court opinion attached to Ross’ petition as an “exhibit” was not a “written instrument” to allow adoption under Rule 10(c). The Court flatly rejected the State’s position.

In Dye v. Hofbauer, 546 U.S. 1 (2005), the Supreme Court held that a habeas petitioner could rely on an attached brief to his petition to state his claim in more detail, where the petition was “too vague.” The Ninth Circuit therefore rejected the argument that the attached court opinion wasn’t a written instrument. The Court clarified that a “written instrument” under Rule 10(c) is not limited to only “private written agreements such as contracts, leases, or wills.”

The Court also reminded that the advisory committee’s note to Rule 4 of the Rules Governing § 2254 Cases expressly provides that the rule allows reference to “any exhibits attached to the petition, including, but not limited to, transcripts, sentencing records, and copies of state court opinions.”

And finally, the Court reiterated that pro se filings are to be “liberally construed.” Ross’ original petition was filed pro se, and then he was appointed counsel who filed the amended petition. In light of this sequence of events, the Court concluded that “it is clear that Ross attempted to set out the factual background for the claims in his petition by attaching the Nevada Supreme Court’s order to it.”


The Court explained that a petition that fails to set out particular claims but later attempts to build those claims after the statute of limitation deadline would be untimely. Ross, however, did not do that. His concise claims in the petition with reference to the state court opinion were sufficient to form factual bases for the amended petition to relate back to.

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Related legal case

Ross v. Williams



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