Hebner v. McGrath

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

ALFRED W. HEBNER,  No. 06-16533
Petitioner-Appellant,
v.  D.C. No.
CV-00-02907-VRW
JOE MCGRATH,* Warden,
OPINION
Respondent-Appellee.

Appeal from the United States District Court
for the Northern District of California
Vaughn R. Walker, Chief District Judge, Presiding

Argued and Submitted
April 14, 2008—San Francisco, California

Filed September 16, 2008

Before: Ronald M. Gould, Richard R. Clifton, and
N. Randy Smith, Circuit Judges.

Opinion by Judge Clifton

*We retain in the caption the name of the original custodian of Alfred
W. Hebner, Warden Joe McGrath. Should the parties desire that the cap-
tion reflect his current custodian, they may file a motion requesting such
a change, supported by documentation identifying the current custodian.

12983
12986 HEBNER v. MCGRATH

COUNSEL

George C. Boisseau and Dena Meirhenry (argued), Santa
Rosa, California, for the appellant.

Nanette Winaker (argued) , Deputy Attorney General, State of
California, San Francisco, California, for the appellee.

OPINION

CLIFTON, Circuit Judge:

Alfred W. Hebner seeks to challenge his California state
conviction with a petition for habeas corpus under 28 U.S.C.
§ 2254. The primary question presented by this appeal is
whether a new argument contained within a proposed
amended habeas corpus petition, filed by Hebner after the
one-year limitations period imposed by 28 U.S.C.
§ 2244(d)(1), part of the Antiterrorism and Effective Death
Penalty Act (AEDPA), related back to his timely filed original
petition. The district court denied Hebner’s motion for leave
to file the amended petition, concluding that the new claim
was untimely. We agree and answer the question posed above
in the negative.

Federal Rule of Civil Procedure 15(c)(2) provides that an
amended complaint, in this case an amended habeas corpus
petition, relates back to the original pleading when it “[arises]
out of the same conduct, transaction, or occurrence.”
Although this court interpreted the relation-back provision
broadly in the past, the Supreme Court’s decision in Mayle v.
Felix, 545 U.S. 644 (2005), instructs us that the interpretation
 HEBNER v. MCGRATH 12987
must be constrained. Under Mayle, a new claim in an
amended petition relates back to avoid a limitations bar, when
the limitations period has run in the meantime, only when it
arises from the same core of operative facts as a claim con-
tained in the original petition. It is not enough that the new
argument pertains to the same trial, conviction, or sentence.

The new argument added in Hebner’s amended petition
regarding a jury instruction did not arise from the same core
of facts as any of the claims asserted in his original petition.
We thus affirm the district court’s denial of Hebner’s motion
to amend. Because Hebner’s other habeas argument on
appeal, a claim of ineffective assistance of counsel, is no more
successful, we affirm the district court’s denial of his habeas
corpus petition.

I. Background

Hebner was convicted after a jury trial in California state
court of four counts of forcible rape and one count each of
attempted rape, assault by force likely to produce great bodily
injury, and false imprisonment. The victim, named Kim, posi-
tively identified Hebner, testified that she was certain that he
was the man who raped her, and denied ever having con-
sented to sexual intercourse with him. A hospital nurse testi-
fied that during an examination of Kim she discovered
secretions on Kim’s inner thighs, fingernail-shaped marks on
her left hand, and two bruises on her right arm. Kim told her
the man’s name was “Al” and that he had threatened to kill
her. A forensic expert testified that there was sperm present
in the vaginal smear from Kim and on the swab from her
inner thighs and clothing.

The evidence against Hebner also included testimony about
another sexual offense allegedly committed by Hebner. That
was presented in the form of testimony by Penelope, who
identified Hebner as the man who raped her seven years
before. The court admitted Penelope’s testimony under Cali-
12988 HEBNER v. MCGRATH
fornia Evidence Code § 11081 as proof of the defendant’s
“propensity” to commit sexual offenses and under California
Evidence Code § 1101(b)2 as proof of intent and common
plan. At the close of evidence, the court provided the jury
with an instruction based upon a standard form then in com-
mon use, which stated in part that “if you find that the defen-
dant did commit another sexual assault crime . . . you may
infer that . . . he also committed the charged sexual offenses
in this case.” The jury was also instructed, as was then cus-
tomary, that it could find that the defendant committed the
other uncharged sexual offense based upon a preponderance
of the evidence.

Hebner was convicted and the trial court sentenced him to
forty-eight years in prison. The California Court of Appeal
affirmed the judgment, and the California Supreme Court
denied review. Hebner unsuccessfully sought post-conviction
1
Cal. Evid. Code § 1108(a) provides that: “In a criminal action in which
the defendant is accused of a sexual offense, evidence of the defendant’s
commission of another sexual offense or offenses is not made inadmissible
by Section 1101, if the evidence is not inadmissible pursuant to Section
352.” Section 1101 provides that “evidence of a person’s character or a
trait of his or her character (whether in the form of an opinion, evidence
of reputation, or evidence of specific instances of his or her conduct) is
inadmissible when offered to prove his or her conduct on a specified occa-
sion,” with specified exceptions, including the exception set forth in Sec-
tion 1108. Section 352 provides that: “The court in its discretion may
exclude evidence if its probative value is substantially outweighed by the
probability that its admission will (a) necessitate undue consumption of
time or (b) create substantial danger of undue prejudice, of confusing the
issues, or of misleading the jury.”
2
Cal. Evid. Code § 1101(b) provides that: “Nothing in this section pro-
hibits the admission of evidence that a person committed a crime, civil
wrong, or other act when relevant to prove some fact (such as motive,
opportunity, intent, preparation, plan, knowledge, identity, absence of mis-
take or accident, or whether a defendant in a prosecution for an unlawful
sexual act or attempted unlawful sexual act did not reasonably and in good
faith believe that the victim consented) other than his or her disposition to
commit such an act.”
 HEBNER v. MCGRATH 12989
relief in California state court. The California Supreme Court
denied his final petition on April 26, 2000.

On August 15, 2000, Hebner filed pro se a petition for
habeas corpus under 28 U.S.C. § 2254 in federal district court.
The district court originally dismissed the petition as untimely
under 28 U.S.C. § 2244(d), and Hebner appealed. This court
reversed the dismissal and remanded the case after determin-
ing that the petition was timely in light of a decision rendered
in the meantime, Bunney v. Mitchell, 262 F.3d 973 (9th Cir.
2001).

In his original habeas petition, Hebner made several claims.
One was that the admission of propensity and character evi-
dence, specifically the evidence regarding the alleged sexual
assault on Penelope, denied him due process and equal protec-
tion. In presenting the argument, Hebner’s original petition
stated that “the prior offense only needed to be proved by a
preponderance of the evidence” and that “there was a very
real possibility that the jury simply convicted petitioner of the
charged offense, not because they thought he was guilty, but
instead to ensure that he would be punished for the uncharged
offense.” Other claims were that California Evidence Code
§ 1108 was an ex post facto law, that the evidence was insuf-
ficient thus depriving him of due process, and that his trial
counsel rendered ineffective assistance in several ways,
including in failing to object to the admission of the evidence
concerning the sexual assault on Penelope.

On July 10, 2003, nearly three years after filing his original
petition in district court and long after the one-year AEDPA
limitations period had expired, Hebner filed a motion request-
ing leave to amend his original petition. He sought to add a
claim that the trial court’s jury instruction violated his right to
due process because “[t]he trial court instructed the jury that
they could convict [him] of the present offense merely
because of a preponderance of evidence that [he had] commit-
ted a similar offense.” The district court denied Hebner’s
12990 HEBNER v. MCGRATH
motion to amend, finding that his new claim was untimely
and did not relate back to his original petition.

Subsequently, the district court denied Hebner’s habeas
petition on all claims of relief.3 Hebner timely appealed.

II. Discussion

Hebner pursues two arguments on appeal. The first is that
his trial counsel was ineffective for failing to challenge the
admission of the prior sexual offense evidence. The second is
that he should have been permitted to amend his petition to
include a claim of jury instruction error, and that the argument
he sought to add was meritorious.

The district court’s denial of Hebner’s § 2254 petition is
reviewed de novo. Arnold v. Runnels, 421 F.3d 859, 862 (9th
Cir. 2005). The district court’s denial of a motion to amend
a pleading is reviewed for abuse of discretion. Pierce v. Mult-
nomah County, 76 F.3d 1032, 1043 (9th Cir. 1996).

Under AEDPA, we review a state court’s decisions under
a “highly deferential” standard. Woodford v. Visciotti, 537
U.S. 19, 24 (2002) (per curiam) (citation omitted). A habeas
petition cannot be granted unless the state court decision was:
(1) “contrary to, or involved an unreasonable application of,
clearly established Federal law, as determined by the Supreme
Court of the United States;” or (2) “based on an unreasonable
determination of the facts in light of the evidence presented
in the State court proceeding.” 28 U.S.C. § 2254(d).

A. Ineffective Assistance of Counsel

We first consider whether the determination by the state
3
The disposition of the petition by the district court was delayed in part
by the need for Hebner to exhaust one of his claims in state court, during
which time the federal proceeding was stayed.
 HEBNER v. MCGRATH 12991
court that Hebner’s attorney was not ineffective for failing to
object to the prior sexual misconduct on due process grounds
was contrary to, or an unreasonable application of, clearly
established federal law, or involved an unreasonable determi-
nation of the facts. See 28 U.S.C. § 2254(d). We conclude that
it was not and affirm the district court’s denial of Hebner’s
petition on that ground.

[1] A meritorious ineffective assistance of counsel claim
has two components. First, the petitioner must demonstrate
that counsel’s performance was deficient and “fell below an
objective standard of reasonableness.” Strickland v. Washing-
ton, 466 U.S. 668, 688 (1984). Second, the petitioner must
establish prejudice by demonstrating that “there is a reason-
able probability that, but for counsel’s unprofessional errors,
the result of the proceeding would have been different.” Id. at
694.

[2] The state court of appeals rejected Hebner’s ineffective
assistance claim, concluding that the evidence would have
been admitted even if trial counsel had objected. Hebner con-
cedes on appeal that, even if Hebner’s trial counsel succeeded
in challenging the admission of Penelope’s testimony under
California Evidence Code § 1108 for the purpose of showing
propensity to commit a sexual offense, the jury would have
heard the evidence anyway, because the trial court would
have admitted Penelope’s testimony under the well-
established rule permitting evidence regarding common plan
or intent, Cal. Evid. Code § 1101(b). Under the circum-
stances, Hebner cannot establish the prejudice required by
Strickland to make out a successful claim of ineffective assis-
tance of counsel.

B. Denial of Motion for Leave to Amend

Hebner moved for leave to file an amended petition which
sought to add a claim that the jury instructions given by the
trial court violated due process by opening the door to convic-
12992 HEBNER v. MCGRATH
tion by the jury based on a standard of proof lower than “be-
yond a reasonable doubt.” Hebner argues now that the jury
instructions expressly permitted the jury to find that Hebner
had committed a previous sexual assault based on “a prepon-
derance of the evidence,” and that the jury could infer from
the previous crime that he had also committed the sexual
offenses in this case. We need not elaborate on that argument,
because the State of California concedes that our decision in
Gibson v. Ortiz, 387 F.3d 812, 822-23 (9th Cir. 2004), would
apply in this case to compel the granting of Hebner’s habeas
petition, if that claim was presented by Hebner on a timely
basis. The issue on appeal thus centers squarely on whether
Hebner asserted that claim in a way that fell within the one-
year limitations period. The district court denied Hebner’s
motion for leave to file an amended petition, concluding that
the new claim was untimely.

[3] Congress enacted AEDPA to advance the finality of
criminal convictions by imposing “a tight time line” in the
form of a one-year time limit on state prisoners seeking to
challenge their convictions in federal court. Mayle, 545 U.S.
at 662; 28 U.S.C. § 2244 (d)(1). The statute allows for a
habeas petition to be amended “as provided in the rules of
procedure applicable to civil actions.” 28 U.S.C. § 2242. Rule
15 of the Federal Rules of Civil Procedure, the applicable
civil rule on amended pleadings, provides that amendments
made after the statute of limitations has run may “relate back”
to the date of the original pleading when the amended plead-
ing arises “out of the conduct, transaction, or occurrence set
out—or attempted to be set out—in the original pleading.”
Fed. R. Civ. P. 15 (c)(1). There is no dispute that Hebner’s
original petition did not contain this new claim and that his
amended petition was not offered until after the one-year limi-
tations period had run, so the question is whether the claim at
issue related back.

[4] This court previously interpreted broadly “conduct,
transaction, or occurrence” to allow the relation back of an
 HEBNER v. MCGRATH 12993
amended claim as long as it stems from the same trial, convic-
tion, or sentence as the original. In Mayle, the Supreme Court
rejected our construction as “boundless,” because “[u]nder
that comprehensive definition, virtually any new claim intro-
duced in an amended petition will relate back, for federal
habeas claims, by their very nature, challenge the constitu-
tionality of a conviction or sentence.” Mayle, 545 U.S. at 656-
57, 661. An amended habeas petition “does not relate back
(and thereby escape AEDPA’s one-year time limit) when it
asserts a new ground for relief supported by facts that differ
in both time and type from those the original pleading set
forth.” Id. at 650. The original and amended claims must,
instead, be “tied to a common core of operative facts.” Id. at
664.

In Mayle, the Supreme Court concluded that the petition-
er’s amended complaint, which raised a Fifth Amendment self
incrimination objection regarding pretrial statements, did not
relate back to his original complaint, which raised a Sixth
Amendment confrontation clause objection regarding the
admission of videotaped witness testimony. Id. at 648-49. The
two claims were “separated in time and type” because the
amendment arose from a pretrial event and the original peti-
tion arose from the trial. Id. at 657; see also United States v.
Ciampi, 419 F.3d 20, 24 (1st Cir. 2005) (holding that pro se
petitioner’s ineffective assistance of counsel claim based upon
his counsel’s failure to inform petitioner of his appeal rights
before the plea did not relate back to his initial claim alleging
a due process violation based on the court’s failure to advise
the petitioner of the same consequences because the claims
did not arise from the same core facts). Therefore, the original
and amended petitions did not arise from the same “transac-
tion.”

[5] The new claim advanced in Hebner’s proposed
amended petition did not relate back to his original complaint,
because it was “separated in time and type.” Mayle, 545 U.S.
at 657. In his original petition, Hebner asserted a claim that
12994 HEBNER v. MCGRATH
the admission of Penelope’s testimony violated his due pro-
cess rights. Although Hebner made reference to the “prepon-
derance of the evidence” standard which applied to the prior
sexual offense, he did so only to further his argument that the
admission of Penelope’s testimony could have led the jury to
find him guilty because they wanted to punish him for the
crime against Penelope, without regard to whether the jury
believed that he was actually guilty of the charged crimes
against Kim. A complete reading of the initial petition makes
clear that Hebner’s challenge was to the admission of Penelo-
pe’s testimony. The jury instruction itself was not at issue.

[6] In comparison, the claim Hebner sought to add in his
amended petition was that the trial court’s instructions effec-
tively lowered the burden of proof required to convict him of
the charged offenses. Hebner’s original claim related to the
evidence admitted at trial, while his later claim was directed
at the jury instructions given by the trial court.

[7] Those two claims are not sufficiently related, under
Mayle. The Court specifically noted that Rule 2(c) of the
Rules Governing Section 2254 Cases in the United States Dis-
trict Courts (the Habeas Rules) requires a petitioner to “spec-
ify all [available] grounds for relief” and to “state the facts
supporting each ground.” Id. at 645. Under that rule, Hebner,
like the petitioner in Mayle, was required to state his two
claims separately. Each would have been supported by “sepa-
rate congeries of facts,” the first claim focusing on the admis-
sion of evidence and the later claim on the instructions given
to the jury, suggesting that they were separate occurrences. Id.
at 646.

What can qualify as a related claim was illustrated by the
discussion in Mayle of the Court’s prior decision in Tiller v.
Atlantic Coast Line Railroad, 323 U.S. 574, 580-581 (1945).
That case involved a railroad worker who was struck and
killed by a railroad car. To recover for his wrongful death his
widow sued under the Federal Employers’ Liability Act, 45
 HEBNER v. MCGRATH 12995
U.S.C. § 51 et seq., and alleged various negligent acts. Later
she added a claim under the Federal Boiler Inspection Act for
failure to provide the train’s locomotive with a rear light. The
Court held that the amendment related back, and therefore
avoided a statute of limitations bar, even though the amend-
ment invoked a legal theory not suggested by the original
complaint and relied on facts not originally asserted, because
there was only one “episode-in-suit in Tiller, a worker’s death
attributed from the start to the railroad’s failure to provide its
employee with a reasonably safe place to work.” Mayle, 545
U.S. at 660. There was but one “single ‘occurrence,’ an acci-
dent resulting in her husband’s death.” Id.

[8] In contrast, here there are at least two discrete occur-
rences upon which Hebner bases his claims: the admission of
evidence during trial and the instructions charged to the jury
after the close of evidence. The two claims depend upon sepa-
rate transactions and do not share a common core of operative
fact. The district court did not abuse its discretion in denying
Hebner’s motion requesting leave to amend his habeas peti-
tion, because the claim which he proposed to add by his
amendment did not relate back to the claims contained in his
original petition.

III. Conclusion

The district court correctly rejected Hebner’s original claim
of ineffective assistance of counsel, since he could not dem-
onstrate prejudice. The jury instruction claim presented in
Hebner’s amended petition did not relate back to his original
petition because it arose from a different core of operative
facts, so it was untimely under the statute of limitations.
Accordingly, we affirm the denial by the district court of Heb-
ner’s habeas corpus petition.

AFFIRMED.