Ronald Ross v. Williams

FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

RONALD ROSS, No. 16-16533
Petitioner-Appellant,
D.C. No.
v. 2:14-cv-01527-
JCM-PAL
WILLIAMS, Warden; ATTORNEY
GENERAL FOR THE STATE OF
NEVADA, OPINION
Respondents-Appellees.

Appeal from the United States District Court
for the District of Nevada
James C. Mahan, Senior District Judge, Presiding

Argued and Submitted December 5, 2017
San Francisco, California

Filed July 19, 2018

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

Opinion by Judge Ikuta;
Dissent by Judge Bates

*
The Honorable John D. Bates, United States Senior District Judge
for the District of Columbia, sitting by designation.
2 ROSS V. WILLIAMS

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

**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
 ROSS V. WILLIAMS 3

arose out of the conduct, transaction, or occurrence set out in
his original petition.

COUNSEL

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.

OPINION

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
4 ROSS V. WILLIAMS

District Courts (Habeas Rule 2) precludes the court from
construing the petition as incorporating such facts, we affirm.

I

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.
 ROSS V. WILLIAMS 5

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

1
The Nevada Supreme Court addressed Ross’s claims that his
counsel was ineffective for:

(1) “failing to engage in pretrial discovery”;

(2) “violating [Ross’s] right to a speedy trial”;

(3) allowing “a communication breakdown [that] prevented [Ross]
from being able to assist counsel in the preparation of his defense”;

(4) “failing to object to expert testimony”;

(5) “failing to retain a defense expert”;

(6) “failing to properly challenge the use of a preliminary-hearing
transcript”;

(7) “failing to renew at trial his preliminary-hearing objection for
violating the best evidence rule”; and

(8) “failing to raise certain objections during the State’s closing
arguments and at sentencing and for failing to move post-verdict to
dismiss the case for lack of evidence.”
6 ROSS V. WILLIAMS

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,

2
As discussed in detail, infra Part III.A, the Rules Governing Section
2254 Cases in the United States District Courts (or “Habeas Rules”) apply
to Ross’s petition. Habeas Rule 2(d) provides that “[t]he petition must
substantially follow either the form appended to these rules [(the national
form)] or a form prescribed by a local district-court rule.”
 ROSS V. WILLIAMS 7

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

3
Ross’s affidavit stated: “[O]n the date of 22 July 2014, the Nevada
Supreme Court issued an Order of Affirmance denying the appeal of my
state post-conviction writ of habeas corpus (see attached order). That it
8 ROSS V. WILLIAMS

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

is noticed that petitioner Ronald Ross is not listed on the distribution for
the order of affirmance.”
4
These were that: (1) Ross’s Sixth Amendment confrontation right
was violated when “the prosecution was allowed to admit the preliminary
hearing testimony of a witness even though the prosecution did not make
a sufficient showing that the witness was unavailable”; (2) Ross’s Sixth
Amendment right to a speedy trial was violated “when the case was
continued at the state’s request for 541 days”; (3) the evidence against
Ross was insufficient to support his conviction; and (4) Ross’s Sixth
Amendment right to counsel was violated when trial counsel failed (a) to
“protect Ross’s right to a speedy trial”; (b) to “communicate with [Ross]
prior to trial”; (c) to “seek [an] appropriate sanction” for the state’s failure
to preserve the allegedly exculpatory surveillance video; (d) to “object
based on [the] best evidence rule” to a police detective’s testimony about
the content of that video; (e) to object to the detective’s testimony about
“distract thefts,” which Ross argued was expert testimony; (f) to call a
defense expert to rebut the detective’s testimony; (g) to object to the
admission of the preliminary hearing testimony that allegedly violated
Ross’s confrontation rights; and (h) to “raise mitigating arguments at
sentencing.”
 ROSS V. WILLIAMS 9

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).

II

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).
10 ROSS V. WILLIAMS

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
 ROSS V. WILLIAMS 11

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
12 ROSS V. WILLIAMS

claims in his amended petition arose out of those facts. We
now analyze this argument.

III

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 issue requires us to
interpret the Habeas Rules.

A

The Habeas Rules “govern a petition for a writ of habeas
corpus filed in a United States district court under 28 U.S.C.
§ 2254” by a state prisoner. Habeas R. 1(a). Like the Federal
Rules of Evidence and the Civil Rules, the Habeas Rules are
promulgated by the Supreme Court pursuant to the Rules
Enabling Act, 28 U.S.C. § 2072,5 see H.R. Rep. 94-1471, at
2 & n.2 (1976), as reprinted in 1976 U.S.C.C.A.N. 2478,
2479, and therefore are “in every pertinent respect, as binding
as any statute duly enacted by Congress, and federal courts
have no more discretion to disregard [a] Rule’s mandate than
they do to disregard constitutional or statutory provisions.”
Bank of Nova Scotia v. United States, 487 U.S. 250, 255
(1988). As with other federal rules, the Advisory Committee
notes to the Habeas Rules “provide a reliable source of

5
The Supreme Court initially promulgated the Habeas Rules in 1976
pursuant to authority conferred by 18 U.S.C. §§ 3771–72 (1976) (criminal
proceedings) and 28 U.S.C. § 2072 (1976) (civil proceedings). See H.R.
Rep. 94-1471 at 2 n.2. The Rules Enabling Act was subsequently
amended by repealing 18 U.S.C. §§ 3771–72 and consolidating the
authority to promulgate rules for both civil and criminal proceedings in
28 U.S.C. § 2072. See Judicial Improvements and Access to Justice Act,
Pub. L. 100-702, §§ 401–04, 102 Stat. 4642, 4648–4651 (1988).
 ROSS V. WILLIAMS 13

insight into the meaning of a rule.” United States v. Vonn,
535 U.S. 55, 64 n.6 (2002); see also Heinemann v.
Satterberg, 731 F.3d 914, 917 (9th Cir. 2013) (“We pay
attention to the Advisory Committee Notes.”).

The Habeas Rules incorporate some, but not all, of the
Civil Rules. Habeas Rule 12 provides that the Civil Rules “to
the extent that they are not inconsistent with any statutory
provisions or these [Habeas Rules] may be applied to a
proceeding under these rules.” See also Fed. R. Civ. P.
81(a)(4) (providing that the Civil Rules apply to proceedings
for habeas corpus “to the extent that the practice in those
proceedings” is not specified in “the Rules Governing Section
2254 Cases,” among other rules). In determining whether
application of the Civil Rules would be inconsistent with
statutes or the Habeas Rules, courts must take into account
“the overall framework of habeas corpus.” Mayle, 545 U.S.
at 654 (quoting Habeas R. 12 advisory committee’s note).6
Habeas Rule 12 “permits application of the civil rules only
when it would be appropriate to do so.” Habeas R. 12
advisory committee’s note.

Habeas Rule 2 sets forth the requirements for the form
and content of a habeas petition. Habeas Rule 2(c) specifies
the content of the petition. Under this rule, the petition must
“specify all grounds for relief available to the petitioner,”
“state the facts supporting each ground,” “state the relief
requested,” and “be signed under penalty of perjury,” among

6
Habeas Rule 12 was formerly Habeas Rule 11, but was renumbered
in 2009. See Habeas R. 12 advisory committee’s note to 2009
amendment.
14 ROSS V. WILLIAMS

other requirements.7 Habeas Rule 2(d) provides that the
petition must “substantially follow either the form appended”
to the Habeas Rules or “a form prescribed by a local district
court rule.”8

The Advisory Committee explained the reasons for this
requirement. Before the enactment of Habeas Rule 2, habeas
petitions had “frequently contained mere conclusions of law,
unsupported by any facts. Since it is the relationship of the
facts to the claim asserted that is important, these petitions
were obviously deficient.” Habeas R. 2 advisory committee’s
note. Moreover, “lengthy and often illegible petitions,
arranged in no logical order, were submitted to judges who
have had to spend hours deciphering them.” Id. According
to the Advisory Committee, “[t]he requirement of a standard

7
Habeas Rule 2(c) provides in full:

The petition must:

(1) specify all the grounds for relief available to the
petitioner;

(2) state the facts supporting each ground;

(3) state the relief requested;

(4) be printed, typewritten, or legibly handwritten; and

(5) be signed under penalty of perjury by the petitioner
or by a person authorized to sign it for the petitioner
under 28 U.S.C. § 2242.
8
Habeas Rule 2(d) provides in full: “The petition must substantially
follow either the form appended to these rules or a form prescribed by a
local district-court rule. The clerk must make forms available to
petitioners without charge.”
 ROSS V. WILLIAMS 15

form benefits the petitioner as well,” because the petitioner’s
“assertions are more readily apparent, and a meritorious claim
is more likely to be properly raised and supported.” Id. The
Advisory Committee acknowledged that the factual adequacy
of the petition would depend on the petitioner’s capabilities
and the available legal assistance, but concluded that “[o]n
balance . . . the use of forms has contributed enough to
warrant mandating their use.” Id.

In Mayle, the Supreme Court reinforced these
requirements, explaining that “a complaint need only provide
fair notice of what the plaintiff’s claim is and the grounds
upon which it rests,” under the Civil Rules, 545 U.S. at 655
(citation omitted), but “Habeas Corpus Rule 2(c) is more
demanding” because it requires the petition to “specify all the
grounds for relief available to the petitioner” and “state the
facts supporting each ground,” id. (quoting Habeas R. 2(c)).
“[N]otice pleading is not sufficient, for the petition is
expected to state facts that point to a real possibility of
constitutional error.” Id. (internal quotation marks omitted)
(quoting Habeas R. 4 advisory committee’s note). Mayle
likewise recognized that “the model form available to aid
prisoners in filing their habeas petitions” alerts prisoners to
this higher standard. Id.

Although Habeas Rule 2(c) has been applied strictly to
require habeas petitioners to set forth the factual grounds in
the form itself, the Supreme Court has recognized an
exception when the habeas petition expressly incorporates
attached material by reference. See Dye v. Hofbauer,
546 U.S. 1 (2005). In Dye, the Supreme Court considered the
Sixth Circuit’s denial of a habeas petitioner’s prosecutorial
misconduct claim. Id. at 2–3. The Sixth Circuit had denied
relief in part on the ground that the petition “presented the
16 ROSS V. WILLIAMS

prosecutorial misconduct claim in too vague and general a
form.” Id. at 4. The Supreme Court held that this reasoning
was incorrect because “[t]he habeas corpus petition made
clear and repeated references to an appended supporting brief,
which presented [petitioner’s] federal claim with more than
sufficient particularity.” Id. In reaching this conclusion, Dye
cited Civil Rule 10(c), which provides: “A statement in a
pleading may be adopted by reference elsewhere in the same
pleading or in any other pleading or motion. A copy of a
written instrument that is an exhibit to a pleading is a part of
the pleading for all purposes.” Fed. R. Civ. P. 10(c).

B

Ross urges us to interpret Dye and Civil Rule 10(c)
broadly. According to Ross, because Civil Rule 10(c) states
that “[a] copy of a written instrument that is an exhibit to a
pleading is a part of the pleading for all purposes,” a court
must deem the facts set out in any document attached to a
habeas petition to be included in his habeas petition as a
matter of law, regardless whether the petitioner “made clear
and repeated references” to the document as supporting the
petitioner’s legal claim.

We reject this argument, because it is inconsistent with
Mayle’s direction that we may apply the Civil Rules only to
the extent that they are consistent with the Habeas Rules, see
Habeas R. 12, taking into account the overall habeas
framework, see Mayle, 545 U.S. at 654.9 Ross’s proposed
application of Civil Rule 10(c) would conflict with the

9
The parties also dispute whether a court decision is a “written
instrument” for purposes of Civil Rule 10(c), but we need not decide that
question here.
 ROSS V. WILLIAMS 17

language and purpose of Habeas Rule 2(c), which requires
petitioners to specifically identify “the facts supporting each
ground” for relief, in order to alleviate the court’s burden of
deciphering lengthy or poorly organized petitions. Habeas R.
2 advisory committee’s note. If Civil Rule 10(c) applies as
broadly as Ross claims, judges would once again be required
to wade through “two thousand pages of irrational, prolix,
and redundant pleadings,” to the detriment of judges and
petitioners alike. Id. (quoting Passic v. Michigan, 98 F. Supp.
1015, 1016 (E.D. Mich. 1951)).

Further, Ross’s proposed application of Civil Rule 10(c)
would be inconsistent with AEDPA. If each attachment to a
habeas petition could serve as a wellspring of facts to support
any new claim for relief in a subsequent petition, a petitioner
would lay the groundwork for a host of claims that could later
relate back merely by following the form’s instruction to
“[a]ttach to this petition a copy of all state court written
decisions regarding this conviction.” Moreover, any
reasonable petitioner would be motivated to attach reams of
documents to each petition in order to preserve a full panoply
of possible claims that could be revived after the limitations
period has run. Such an application of Civil Rule 10(c)
“would permit ‘the “relation back” doctrine to swallow
AEDPA’s statute of limitations.’” Mayle, 545 U.S. at 662
(quoting Felix, 379 F.3d at 619 (Tallman, J., concurring in
part and dissenting in part)). But as the Supreme Court
explained, “Congress enacted AEDPA to advance the finality
of criminal convictions,” and we may not apply the Civil
Rules in a way that would give AEDPA’s limitations period
“slim significance.” Mayle, 545 U.S. at 662.

The application of Civil Rule 10(c) approved in Dye
raises none of these concerns. When a petitioner incorporates
18 ROSS V. WILLIAMS

by making “clear and repeated references to an appended
supporting brief,” and the brief presents the petitioner’s
claims “with more than sufficient particularity,” it does not
impose a significant additional burden on the courts to
identify the petitioner’s claims or assess their merit. Dye,
546 U.S. at 4. Nor does the targeted incorporation of specific
facts in a timely petition give a petitioner an unbounded
opportunity to later raise a wide range of other claims under
the relation back doctrine. Cf. Mayle, 545 U.S. at 661. To
the extent the application of Civil Rule 10(c) is limited to this
context, where the petitioner expressly and specifically
identifies the applicable facts incorporated into the habeas
petition, it is consistent with Habeas Rule 2, and therefore not
barred by Habeas Rule 12.

C

We also reject Ross’s argument that applying Civil Rule
10(c) in his suggested manner is consistent with Habeas Rule
4, which governs a district court’s preliminary review of the
petition.10 Under Habeas Rule 4, “[i]f it plainly appears from

10
Habeas Rule 4 provides in full:

The clerk must promptly forward the petition to a
judge under the court’s assignment procedure, and the
judge must promptly examine it. If it plainly appears
from the petition and any attached exhibits that the
petitioner is not entitled to relief in the district court, the
judge must dismiss the petition and direct the clerk to
notify the petitioner. If the petition is not dismissed,
the judge must order the respondent to file an answer,
motion, or other response within a fixed time, or to take
other action the judge may order. In every case, the
 ROSS V. WILLIAMS 19

the petition and any attached exhibits that the petitioner is not
entitled to relief,” then the district court must dismiss the
petition. Otherwise, the district court must order the state to
respond. Habeas R. 4. Because this language directs the
court to examine the facts in the state court order or any other
documents attached to the petition, Ross argues, it enables a
court to consider whether any facts support the petitioner’s
legal claims. We disagree.

Habeas Rule 4 was designed to give courts “an active role
in summarily disposing of facially defective habeas
petitions.” Boyd v. Thompson, 147 F.3d 1124, 1127 (9th Cir.
1998). The rule imposes on courts the duty to screen out
frivolous applications, Habeas R. 4 advisory committee’s
note, when “the allegations in the petition are ‘vague [or]
conclusory’ or ‘palpably incredible’ or ‘patently frivolous or
false,’” Hendricks v. Vasquez, 908 F.2d 490, 491 (9th Cir.
1990) (alteration in original) (internal citations omitted), or if
there are easily identifiable procedural errors, such as a
procedural default, see Boyd, 147 F.3d at 1128, failure to
exhaust state remedies, see Habeas R. 4 advisory committee’s
note, or untimeliness, that are “obvious on the face of a
habeas petition,” Wentzell v. Neven, 674 F.3d 1124, 1126 (9th
Cir. 2012); Herbst v. Cook, 260 F.3d 1039, 1042 (9th Cir.
2001) (same). The rule does not authorize a court to sort
through attachments to determine whether facts can be
identified to support the petitioner’s legal claims. The latter
activity is appropriately reserved for the petitioner; even in an
ordinary civil proceeding, we are precluded from

clerk must serve a copy of the petition and any order on
the respondent and on the attorney general or other
appropriate officer of the state involved.
20 ROSS V. WILLIAMS

manufacturing a party’s case. See Dennis v. BEH-1, LLC,
520 F.3d 1066, 1069 n.1 (9th Cir 2008).11

D

Finally, Ross argues that we should construe his pro se
pleadings liberally. He also claims his case is particularly
worthy of such liberal construction, because the attachment
in his case is only six pages in length rather than the
thousands of pages of material that concerned the Advisory
Committee. Therefore, he argues, deeming the attached state
court opinion to be incorporated in his original petition under
Civil Rule 10(c) would not be overly burdensome, and would
not be inconsistent with the Habeas Rules.

11
Ross cites several out-of-circuit cases to support this argument, but
they are not on point, as they address the question whether documents
filed as an exhibit to the state’s answer to a habeas petition are part of the
answer, and therefore must be served on the petitioner. In Rodriguez v.
Florida Department of Corrections, for instance, the court ordered the
state to respond to the prisoner’s habeas petition pursuant to Habeas Rule
5, and to include a comprehensive appendix of records from prior state
proceedings. 748 F.3d 1073, 1074 (11th Cir. 2014). The state served the
prisoner with its answer, but did not include a copy of the appendix even
though its answer referred to documents in the appendix. Id. The
Eleventh Circuit concluded that because Rule 10 of the Federal Rules of
Civil Procedure made the appendix “part of the pleading,” it had to be
served on the prisoner along with the answer under Habeas Rule 4. Id. at
1076–77; see also Sixta v. Thaler, 615 F.3d 569, 572 (5th Cir. 2010)
(same); Thompson v. Greene, 427 F.3d 263, 268–69 & n.7 (4th Cir. 2005)
(holding that failing to serve the exhibits was inconsistent with the federal
rules and the Due Process Clause). This conclusion is consistent with the
Habeas Rules. By contrast, these out-of-circuit opinions do not address
the question whether a court must deem the content of any attached
exhibit to be incorporated by reference into a petition, nor whether such
content would meet the requirement of Habeas Rule 2(c).
 ROSS V. WILLIAMS 21

To the extent Ross’s arguments are based on his pro se
status, they are unavailing. The Habeas Rules and the
standard form are designed for use by pro se prisoners, see
Habeas R. 2 advisory committee’s note, and nevertheless
impose a “more demanding” pleading standard then had
historically been required, Mayle, 545 U.S. at 655. Every pro
se petitioner must meet the same requirement to “specify all
the grounds for relief” and the “facts supporting each ground”
in order to make the meritorious claims more readily
ascertainable. As with any complaint, a habeas petition must
allege sufficient facts to establish the existence of an
actionable claim; the absence of such facts cannot be cured by
a liberal reading. Even in the civil rights context, where our
willingness to “afford the [pro se plaintiff] the benefit of any
doubt” is at its zenith, Hebbe v. Pliler, 627 F.3d 338, 342 (9th
Cir. 2010) (quoting Bretz v. Kelman, 773 F.2d 1026, 1027 n.1
(9th Cir. 1985) (en banc)), we will not supply elements that
are not present in a pro se plaintiff’s complaint. In Byrd v.
Maricopa County Sheriff’s Department, for instance, we held
that a pro se prisoner’s complaint failed to state an equal
protection claim, even where a document that “was part of the
record before the district court” would have provided a
“viable” basis for that claim. 629 F.3d 1135, 1139–40 (9th
Cir. 2011) (en banc); see also Pena v. Gardner, 976 F.2d 469,
471 (9th Cir. 1992) (holding that a district court could not
“augment” a pro se plaintiff’s complaint to survive a motion
to dismiss by incorporating facts from a closely related
case).12

12
The dissent attempts to distinguish Byrd, Pena, and Ivey on the
ground that they do not involve relation back under Civil Rule 15(c).
Dissent at 36. This misses the point. These cases establish the rule that
a court cannot augment a pro se petitioner’s complaint by including facts
borrowed from documents outside the complaint. As a necessary result,
22 ROSS V. WILLIAMS

By contrast, a “technical” mistake is one that does not
implicate the substance of a petitioner’s claim. For example,
where a pro se prisoner “had complied with all substantive
requirements for filing a federal habeas petition,” a district
court could not reject the prisoner’s petition on the ground he
used “white-out and a pen on his cover sheet to write the
correct name of the court in which he filed.” Corjasso v.
Ayers, 278 F.3d 874, 878 (9th Cir. 2002). Our holding in
Corjasso underscores the difference between our willingness
to overlook technical mistakes and our unwillingness to
supply “essential elements of the claim that were not initially
pled,” even in the pro se context. Ivey v. Bd. of Regents of
Univ. of Alaska, 673 F.2d 266, 268 (9th Cir. 1982). The
dissent’s reliance on Corjasso to show we do not hold a
“technical” mistake against pro se petitioners, Dissent at 33,
is therefore misplaced.13

the “conduct, transaction, or occurrence set out—or attempted to be set
out—in the original pleading,” Fed. R. Civ. P. 15(c)(1)(B), does not
include facts that cannot be found in the original pleading. An amended
complaint cannot relate back to an original pleading that is missing the
relevant facts.
13
The dissent cites cases where we have recharacterized the nature of
a petitioner’s filing in a manner that favors the petitioner, Dissent at 31–32
(citing Woods v. Carey, 525 F.3d 886, 888, 890 (9th Cir. 2008)
(recharacterizing a “second” habeas petition as a motion to amend rather
than a successive petition); United States v. Seesing, 234 F.3d 456, 464
(9th Cir. 2000) (noting the practice of recharacterizing pro se filings as
§ 2255 habeas petitions under certain circumstances)). Those cases are
inapplicable here. While a court may “ignore the legal label that a pro se
litigant attaches to a motion and recharacterize the motion in order to place
it within a different legal category,” Castro v. United States, 540 U.S. 375,
381 (2003) (collecting cases), a court may not manufacture the substance
of a petitioner’s claim.
 ROSS V. WILLIAMS 23

E

The dissent focuses on the slightly different argument that
facts contained in the state court order attached to Ross’s
original petition constitute “occurrence[s]” that were
“attempted to be set out” in the petition itself, Fed. R. Civ. P.
15(c)(1)(B); Dissent at 32, 36, 41, and therefore provide a
basis for relation back of the new petition.

We disagree with the dissent’s reading of “attempted to
be set out” in this context. As noted above, because a court
cannot augment a pro se petitioner’s complaint by including
facts borrowed from documents outside the complaint (except
when they are expressly incorporated by reference in the
complaint), we may not deem such facts to be set out or
“attempted to be set out” in that pleading. See supra p. 21.
The dissent’s contrary reading of Civil Rule 15 runs afoul of
Mayle’s warning not to adopt an overly “capacious”
construction of the rule, 545 U.S. at 657, and not to view its
requirements “at too high a level of generality,” id. at 661
(citation omitted), in a manner that would defeat the purposes
of Habeas Rule 2(c) and AEDPA.14 Rather, as Mayle
explains, the scope of Civil Rule 15(c) must be read in light
of Habeas Rule 2(c), which “instructs petitioners to ‘specify
all [available] grounds for relief’ and to ‘state the facts
supporting each ground.’” Id. (alteration in original) (quoting

14
The dissent cites to a pre-Mayle case, Anthony v. Cambra, 236 F.3d
568, 576 (9th Cir. 2000), Dissent at 32, for the general proposition that we
freely allow relation back in the habeas context, but that case is inapposite.
In that case, there was no dispute that the habeas petitioner had set forth
his claims in sufficient detail in the original petition, and we applied Civil
Rule 15(c) only to revive these claims after the court mistakenly dismissed
the original petition due to a procedural error. Anthony, 236 F.3d at
575–77.
24 ROSS V. WILLIAMS

Habeas R. 2(c)). Merely attaching a state court order to a
habeas petition, as required by the petition form, does not
qualify as an attempt to meet such requirements.15 Cf. Dye,
546 U.S. at 4.

Moreover, the dissent’s construction would raise the
concerns cited in Mayle that the relation back doctrine will
“swallow AEDPA’s statute of limitations.” Mayle, 545 U.S.
at 662 (quoting Felix, 379 F.3d at 619 (Tallman, J.,
concurring in part and dissenting in part)). As explained
above, attaching the state court opinion is precisely what the
form petition already requires petitioners to do. Because it
summarizes the relevant pretrial, trial, and post-trial conduct,
a state court opinion would allow “[a] miscellany of claims
for relief [to] be raised later rather than sooner and relate
back,” so long as they have some relation to the opinion’s
description of those events. Id. at 661. Regardless whether
this is labeled as incorporation by reference under Civil Rule
10(c), as Ross suggests, or an attempt to set out facts under
Civil Rule 15(c), per the dissent, this rule would effectively

15
The dissent argues that because the facts in the state court order
attached to Ross’s original petition “match the claims raised summarily in
the petition,” we should deem the attachment to constitute an attempt to
set out the facts supporting Ross’s claims for purposes of Civil Rule 15(c).
Dissent at 34. But there is no such one-to-one matching between the two
documents. At least half the claims in Ross’s original petition do not line
up with the state court opinion. The state court makes no mention of a
claim based on counsel having “[f]ailed to prepare for jury selection.”
Nor does the state court opinion clearly provide the factual bases for
Ross’s claims that counsel “[f]ailed to review evidence and adequately
prepare,” “[f]ailed to argue the prejudice of evidence lost prior to trial,”
and “[f]ailed to prepare for trial.” Given the inconsistency between Ross’s
petition and the state court order and the lack of any clarifying
incorporation by reference, a district court could not glean that Ross was
attempting to set forth the bases of his claims.
 ROSS V. WILLIAMS 25

toll the statute of limitations for all such claims for all
petitioners using the form petition. Because we may not
construe Civil Rule 15(c) in an overly “capacious” manner
that would defeat Habeas Rule 2 and AEDPA, Mayle,
545 U.S. at 657, we reject these arguments. For the same
reasons, we reject Ross’s and the dissent’s argument that we
should make an exception to the strictures of Civil Rule 15(c)
in his case due to the fact that the state court opinion was only
six pages long.16

F

Finally, the dissent argues that we should make an
exception to Civil Rule 15(c) in Ross’s case due to his pro se
status at the time of his original petition. The dissent pays lip
service to the concerns raised in Mayle regarding clarity and
finality but brushes them aside, concluding that they are not
“sufficient to justify withholding the benefit of liberal
construction from a pro se petitioner.” Dissent at 39. But this
is contrary to Mayle’s clear instructions that we must take
such concerns seriously when applying relation back in the
habeas context. 545 U.S. at 662. In fact, Mayle expressly

16
Even if a limited exception for state court orders, as opposed to trial
transcripts and other documents, were consistent with the Habeas Rules,
any such “limiting” rule is not tethered to anything in the Habeas Rules or
the habeas framework itself, and so it is doubtful that it would stay
limiting for long. District judges will ultimately be required to undertake
the substantial burden of making case-by-case determinations in response
to petitioners’ arguments that various attachments provide a sufficient
basis for relation back, contrary to the reasons for mandating the use of
standard forms. The dissent’s suggestion that at least short state court
opinions should be deemed to constitute an attempt to set out the relevant
“conduct, transaction, or occurrence” in the original petition, Dissent at 32
n.1, fails for the same reason.
26 ROSS V. WILLIAMS

rejected the argument that a more liberal relation back
scheme was necessary to protect the interests of pro se
prisoners. See id. at 664 n.8; id. at 675–76 (Souter, J.,
dissenting).

The dissent attempts to distinguish Mayle on several
grounds, but none of them is persuasive. First, the dissent
concedes that Mayle declined to differentiate between pro se
petitioners and those represented by counsel in applying Civil
Rule 15(c) to the habeas context, but makes a flimsy attempt
to distinguish Mayle on the ground that the pro se petitioner’s
counsel in Mayle was appointed before the statute of
limitations had expired. Dissent at 40 n.4. This argument is
meritless. While Mayle noted the timing of the counsel’s
appointment, that fact did not influence Mayle’s
interpretation of the relation back doctrine. See 545 U.S. at
664 n.8 (explaining that the filing of a habeas petition does
not fall within the category of cases that “require appointment
of counsel for an indigent litigant at a critical stage to ensure
his meaningful access to justice”).

Second, the dissent argues that Mayle is distinguishable
because “many of Ross’s claims were raised in his original
petition—he simply failed to substantiate them with sufficient
facts.” Dissent at 38–39. This ignores Mayle’s central
holding. Mayle did not focus on whether the petitioner’s
original and amended petitions raised the same claims, but
rather held that the new Fifth Amendment claim in the
amended petition did not relate back to the original petition,
because the original petition did not contain “separate
congeries of facts supporting th[at] ground[] for relief.” 545
U.S. at 661. Thus under Mayle, the relation-back question
here is whether Ross’s original petition incorporated the facts
set out in the attached state court order, not whether Ross
 ROSS V. WILLIAMS 27

sought to raise new claims in his subsequent amended
petition. And contrary to the dissent, Mayle’s insistence on
avoiding an interpretation of Rule 15(c) that would allow a
petitioner to raise a “miscellany of claims for relief” in
subsequent petitions without regard to AEDPA’s statute of
limitations carries equal force here. Id. at 661–62. As the
dissent concedes, Ross’s amended petition seeks to raise
multiple new claims not presented in the original petition.17
Certainly, Ross’s case is not distinguishable from Mayle on
this basis.

The dissent’s other arguments for ignoring the concerns
set forth in Mayle are similarly meritless. The dissent notes
that Ross “indisputably filed his original petition within the
applicable one-year limitations period.” Dissent at 39. This
is immaterial, however, as the same could be said in every
relation back case where a plaintiff files an inadequate
original petition and seeks to have a subsequent amended
petition relate back. Finally, the dissent contends that
because Civil Rule 15(a)(2) allows a court to deny a
petitioner leave to file an amended petition, it provides an
adequate safeguard against abuse. Dissent at 39. But Mayle
squarely rejected this argument. 545 U.S. at 663 (“[W]e do

17
Ross raised only ineffective assistance of counsel claims in his
original petition. In his amended petition, Ross asserted direct violations
of his Confrontation Clause and Speedy Trial rights, and brought a
sufficiency-of-the-evidence challenge. Ross’s amended petition also
alleged that counsel was ineffective for failing to raise mitigating
arguments at sentencing, a claim that is likewise absent from his original
petition. Moreover, the amended petition sought to revive multiple
ineffective assistance claims that were addressed in the state court order
but not raised in the original petition, such as inadequate communication,
failure to object based on the best evidence rule, and failure to object
based on witness unavailability.
28 ROSS V. WILLIAMS

not regard Rule 15(a) as a firm check against petition
amendments that present new claims dependent upon discrete
facts after AEDPA’s limitation period has run.”).

We therefore reject Ross and the dissent’s arguments
based on Ross’s pro se status at the time of his original
petition. This is not to say that pro se habeas petitioners may
not benefit from our practice of liberal construction.
Consistent with the pleading scheme, a court may liberally
construe the legal claims and facts set forth in the petitioner’s
habeas form, pursuant to Habeas Rule 2(c), as making out a
plausible claim for relief. But giving a generous reading to
the claims a petitioner has actually made is a far cry from
requiring a court to piece together the claims themselves.
Whether under the guise of Civil Rule 10(c) or 15(c), even “a
liberal interpretation . . . may not supply essential elements of
the claim that were not initially pled.” Ivey, 673 F.2d at 268;
see also Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir.
1991) (“The broad reading of the plaintiff’s complaint does
not relieve the plaintiff of the burden of alleging sufficient
facts on which a recognized legal claim could be based.”).

IV

Applying these legal principles here, we conclude that the
Nevada state court affirmance is not incorporated by
reference in Ross’s original petition. There is no dispute that
Ross did not comply with Habeas Rule 2(c) or the language
in the standard form prescribed by the Nevada district court,
which required him to “summarize briefly” the necessary
facts in the space provided for each ground and to “attach up
to two extra pages stating additional grounds and/or
supporting facts.” Unlike the petitioner in Dye, Ross did not
incorporate the facts supporting his legal allegations by
 ROSS V. WILLIAMS 29

making “clear and repeated references” to the document as
supporting his legal claims. 546 U.S. at 4. Indeed, Ross
made no attempt to do so. His federal habeas petition makes
no reference to the state court order or indicates that it sets
forth the facts supporting his claimed grounds for relief.18
Rather, his reference to the state court affirmance in his
affidavit makes it clear he intended to use it for a different
purpose, namely to support his affidavit’s explanation of the
timing of when he learned of the state court’s ruling. This
was no mistake; Ross knew how to incorporate by reference,
because he had filled out a similar form for his state PCR
petition, attached a 22-page handwritten memorandum that
set forth the factual background for each claim and identified
the facts that were relevant to each claim, and explicitly
incorporated those facts with respect to each claim in his state
PCR petition by writing “please see supporting
memorandum. . .” in the space provided for supporting facts
for each claim.

Because Ross did not comply with Habeas Rule 2(c)
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. Accordingly, the district court did not

18
We reject Ross’s argument that, by checking the space on the form
petition indicating that he had raised Ground 1 to the Nevada Supreme
Court, he also explicitly incorporated the Nevada Supreme Court’s order
deciding that ground. This falls far short of the “clear” reference that Dye
requires. 546 U.S. at 4.
30 ROSS V. WILLIAMS

err in concluding that Ross’s amended petition cannot relate
back to the claims in his original petition because they
contain no facts.

AFFIRMED.

BATES, Senior District Judge, dissenting:

Proceeding pro se, Ronald Ross filed a federal habeas
petition a few months before his time to do so under the
Antiterrorism and Effective Death Penalty Act of 1996
(“AEDPA”) was set to expire. His form petition asserted
ineffective assistance of trial counsel on several grounds,
including failure to secure a speedy trial, to assert prejudice
from evidence lost before trial, to retain defense experts, and
to object to the state’s experts. Ross’s petition contained no
specific factual allegations, but he attached to his petition a
six-page state-court decision that discussed the factual bases
of most of his claims in some detail. The majority holds that
Ross’s amended petition—which he prepared with the
assistance of counsel but filed several months after AEDPA’s
deadline had passed—does not relate back to the date of his
original petition because the original petition set out no facts.
See Fed. R. Civ. P. 15(c)(1)(B) (providing that an amendment
relates back if it asserts claims that arise out of the “conduct,
transaction, or occurrence” set out in the original pleading).

Under the familiar rule that pro se pleadings are to be
liberally construed, however, see Erickson v. Pardus,
551 U.S. 89, 94 (2007) (per curiam), we should read Ross’s
original petition as setting out the facts discussed in the
attached state-court decision. Then, we should remand for
 ROSS V. WILLIAMS 31

the district court to determine in the first instance whether the
claims in Ross’s amended petition arose out of the conduct,
transaction, or occurrence set out in his original petition.

I

Federal Rule of Civil Procedure 15(c)(1)(B) permits an
amendment to a pleading to relate back to the date of the
original pleading where “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 Supreme Court has recognized that
Rule 15(c) applies in habeas proceedings, see Mayle v. Felix,
545 U.S. 644, 655 (2005), and there is no dispute that if the
claims in Ross’s amended habeas petition arose out of the
“congeries of facts” set out in his original petition, id. at 661,
the amendment would be timely. According to the majority,
however, Ross’s original petition set out “no facts at all,”
Majority Op. at 11, and so there was nothing for the claims in
Ross’s amended petition to relate back to.

But this reading of Ross’s original petition is unduly
narrow in light of his pro se status. The Supreme Court has
repeatedly told us that pro se filings are to be liberally
construed. See Erickson, 551 U.S. at 94 (quoting Estelle v.
Gamble, 429 U.S. 97, 106 (1976)). This rule applies with
equal force in the habeas context, where it requires courts not
only to draw reasonable factual inferences in the petitioner’s
favor, see Porter v. Ollison, 620 F.3d 952, 958 (9th Cir.
2010), but also to construe the filing itself in a manner that
favors the petitioner, see, e.g., Woods v. Carey, 525 F.3d 886,
890 (9th Cir. 2008) (construing a pro se filing styled as a
“second” habeas petition as a motion to amend a pending
petition, thereby avoiding AEDPA’s exacting standards for
32 ROSS V. WILLIAMS

second and successive petitions); United States v. Seesing,
234 F.3d 456, 463–64 (9th Cir. 2000) (reversing the district
court’s decision to construe a pro se prisoner’s letter as a
habeas petition because doing so “seriously diminished the
possibility of successfully filing a future, properly drafted and
documented, motion”).

Here, the facts underlying the claims in Ross’s original
petition were set out (for the most part) in a reasoned decision
of the Nevada Supreme Court, which was attached as an
exhibit to Ross’s petition. In light of Ross’s pro se status, his
original petition should have been liberally construed as at
least “attempt[ing] to . . . set out” those facts. Fed. R. Civ. P.
15(c)(1)(B) (emphasis added); see Anthony v. Cambra,
236 F.3d 568, 576 (9th Cir. 2000) (allowing relation back in
the habeas context where “the central policy of Rule
15(c)—ensuring that the non-moving party has sufficient
notice of the facts and claims giving rise to the proposed
amendment—[was] satisfied”). To the extent that his
amended petition asserted claims arising out of those facts,
therefore, it should have been allowed to relate back.

True, the form petition that Ross filled out instructed him
to “[s]ummarize briefly the facts supporting each ground” for
relief, and Ross failed to heed this instruction. But as counsel
for the state admitted at oral argument, had Ross’s petition
simply pointed to the facts discussed in the Nevada Supreme
Court’s order, those facts would have been incorporated into
the petition by reference and hence could have supported
relation back.1 See Fed. R. Civ. P. 10(c); Dye v. Hofbauer,

1
When asked what Ross would have had to do to incorporate these
facts into his petition, counsel replied that “he could have said, ‘see page 3
of that decision, here’s the facts that I want to incorporate as my
 ROSS V. WILLIAMS 33

546 U.S. 1, 4 (2005). Perhaps we should not excuse a
counseled petitioner for such a mistake, and perhaps even a
pro se petitioner could not prevail if the attachment were a
trial transcript or some other, denser document. But here,
where the factual bases of Ross’s claims were plain on the
face of the attachment to his pro se petition, Ross’s failure
explicitly to incorporate those facts into his form petition was
precisely the kind of “technical” mistake that we have
repeatedly refused to hold against pro se petitioners.
Corjasso v. Ayers, 278 F.3d 874, 878 (9th Cir. 2002).

The majority protests that this application of the rule of
liberal construction for pro se pleadings lacks a limiting
principle. Respectfully, I disagree. Where, as here, a state-
court decision denying postconviction relief is attached as an
exhibit to a pro se habeas petition and the petition lists claims
that correspond to the claims addressed in that decision,
principles of liberal construction require that the facts
discussed in the decision be construed as “set out” in the
petition for purposes of relation back under Rule 15(c).

This narrow rule makes sense. State-court decisions
denying postconviction review usually distill the factual

supporting facts.’” See U.S. Court of Appeals for the Ninth Circuit, 16-
16533 Ronald Ross v. Williams, YouTube, 12:05–12:12 (Dec. 5, 2017),
https://www.youtube.com/watch?v=bryJdYNcodY. In other words, the
state contends that for incorporation to be effective, a petitioner must
identify the specific facts that the petitioner believes support his claims.
But the state-court decision attached to Ross’s petition is only six pages
long, four of which set out the factual basis for (and then reject) each of
his eight claims. If a simple “see pages 2 through 5” would not have been
enough to incorporate the facts stated on those pages, what more would
Ross have had to write? The state’s attempt to frame incorporation by
reference as a demanding task is unpersuasive.
34 ROSS V. WILLIAMS

background of a petitioner’s claims into an easily digestible
summary. See Rule 5 of the Rules Governing Section 2254
Cases in the U.S. District Courts (the “Habeas Rules”)
advisory committee’s note to 2004 amendment (recognizing
that such decisions “may assist [the federal habeas court] in
resolving the issues raised . . . in the petition”). Moreover,
because AEDPA’s exhaustion requirement bars a petitioner
from asserting claims in a federal habeas petition that were
not raised in state proceedings, see 28 U.S.C. § 2254(b)–(c),
the state-court decision will in most cases neatly summarize
the facts underlying those claims—and only those
claims—that the district court can consider on habeas review.
And where the claims addressed in an attached state-court
decision match the claims raised summarily in the petition,
the pro se petitioner can fairly be said to have “attempted” to
set out those facts in his petition. Fed. R. Civ. P. 15(c)(1)(B).

The limitations of this approach are firmly grounded in
the framework of habeas litigation. Unlike the state-court
decision denying postconviction review, documents like trial
transcripts or other parts of the state-court record are less
likely to summarize concisely the facts underlying the
petitioner’s claims. And other decisions from earlier in the
petitioner’s state-court proceedings are less likely to
summarize the facts underlying precisely those claims that
the petitioner is entitled to assert on federal habeas review in
light of AEDPA’s exhaustion requirement.

The majority’s concern that a narrow ruling in Ross’s
favor would not “stay limiting for long” is unwarranted.
Majority Op. at 25 n.16. District courts know that liberal
construction does not require them “to act as counsel or
paralegal to pro se litigants.” Pliler v. Ford, 542 U.S. 225,
231 (2004); see Barnett v. Duffey, 621 Fed. App’x 496,
 ROSS V. WILLIAMS 35

496–97 (9th Cir. 2015) (unpublished) (affirming the district
court’s refusal to consider a claim that was “‘buried,’ by [the
petitioner’s] own description, amid hundreds of pages of
evidentiary exhibits appended to his petition”). They are well
versed in the practice of parsing pro se pleadings, and
faithfully applying the rule of liberal construction here would
by no means leave them at sea.

II

Like Ross’s briefing, the majority’s analysis focuses
primarily on a different issue: whether Federal Rule of Civil
Procedure 10(c), which provides that “[a] copy of a written
instrument that is an exhibit to a pleading is a part of the
pleading for all purposes,” should be applied here under
Habeas Rule 12, which states that “[t]he Federal Rules of
Civil Procedure . . . may be applied to a [habeas]
proceeding,” but only “to the extent that they are not
inconsistent with any statutory provisions or these rules.”
The majority concludes that Civil Rule 10(c) does not apply
because Ross’s original petition did not “expressly
incorporate[]” the attached state-court decision. Majority Op.
at 15. This is so, the majority explains, because applying
Rule 10(c) in such a case would conflict with Habeas Rule 2,
which states that a petition “must . . . state the facts
supporting each ground [for relief].” See id. at 12–18.

I express no opinion on the majority’s analysis of the
interplay between Habeas Rule 2, Habeas Rule 12, and Civil
Rule 10(c), because I do not think it is necessary to resolve
this case. But the majority also rejects the narrow course
here—liberally construing Ross’s pro se habeas petition as
attempting to set out, for purposes of relation back, the facts
discussed in the attached state-court decision that denied him
36 ROSS V. WILLIAMS

postconviction relief—as inconsistent with Habeas Rule 2.
See id. at 20–28. In my view, this is error.

To begin with, it is important to recognize what is not at
stake. The question here is not whether the district court
should have considered the facts discussed in the attached
state-court decision to evaluate the factual sufficiency of
Ross’s original petition under Habeas Rule 2. Indeed, there
is no dispute that Ross’s amended petition clearly states the
factual basis for each of the claims it asserts. The question,
rather, is whether the district court should have considered the
facts discussed in the attached state-court decision as “set
out”—or at least “attempted to be set out”—in his original
petition for purposes of relation back under Civil Rule 15(c).

In concluding that allowing relation back here would
conflict with Habeas Rule 2, the majority conflates these two
inquiries. For example, the majority relies on three cases in
which this Court refused to apply liberal-construction
principles to “supply ‘essential elements of [a] claim that
were not initially pled’” in a pro se plaintiff’s civil complaint.
Majority Op. at 22(quoting Ivey v. Bd. of Regents of Univ. of
Alaska, 673 F.2d 266, 268 (9th Cir. 1982)); see id. at 21
(quoting Byrd v. Maricopa Cty. Sheriff’s Dep’t, 629 F.3d
1135, 1139–40 (9th Cir. 2011), and citing Pena v. Gardner,
976 F.2d 469, 471 (9th Cir. 1992)). In Byrd and Pena,
however, the plaintiffs sought to rely on facts outside of their
complaints to survive a motion to dismiss under Civil Rule
12(b)(6). And Ivey simply affirmed the dismissal of a
complaint having no specific factual allegations that
defendants engaged in the misconduct alleged. None of these
cases involved relation back under Civil Rule 15(c).
 ROSS V. WILLIAMS 37

This distinction matters because Civil Rule 15(c) requires
less for relation back than Habeas Rule 2 requires to survive
dismissal. Civil Rule 15(c) is satisfied if the original petition
“set[s] out”—or even “attempt[s]” to set out—the factual
basis for the amendment’s claims. Habeas Rule 2, by
contrast, requires that the petition’s claims be pleaded with
“particularity,” a standard that the Supreme Court has called
“demanding.” Mayle, 545 U.S. at 655. This differential
makes sense, because the two doctrines serve different
purposes. Habeas Rule 2’s pleading standard seeks to
discourage “lengthy and often illegible petitions” that require
“hours [to] decipher[],” as well as petitions “contain[ing]
mere conclusions of law, unsupported by any facts.” See
Habeas Rule 2 advisory committee’s note. But relation back
simply ensures that the respondent has fair notice of what the
petitioner might later assert in an amendment to his petition.
See Anthony, 236 F.3d at 576.

The majority’s real argument, then, is that permitting
relation back here would conflict with the policy
considerations that Habeas Rule 2 was intended to advance.
See Majority Op. at 16–17, 23–25. But while those policy
concerns might control in the mine run of cases, they carry
less force here. As one might expect of a decision from a
state’s highest court, the Nevada Supreme Court’s order was
neither “lengthy” nor “illegible.” On the contrary, it stated
the facts underlying Ross’s claims clearly, concisely, and in
a manner that highlighted their legal significance. See
Habeas Rule 2 advisory committee’s note (“[I]t is the
relationship of the facts to the claim asserted that is important
. . . .”). And since this will likely be true of most reasoned
38 ROSS V. WILLIAMS

state-court opinions denying postconviction relief,2 relation
back here implicates none of the efficiency concerns that
animate Habeas Rule 2.

Indeed, the only sense in which the narrow approach that
I have proposed could conceivably conflict with the policies
underlying the Habeas Rules is that, in some cases, it would
allow Habeas Rule 2’s pleading requirement to be met by an
amended petition filed after the running of AEDPA’s one-
year statute of limitations. The majority asserts such a result
would run afoul of Mayle, where the Supreme Court rejected
a reading of the phrase “conduct, transaction, or occurrence”
in Civil Rule 15(c) that would have encompassed the
petitioner’s entire trial and conviction in state court. See
545 U.S. 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.”).

But Ross’s case is distinguishable from Mayle in two
important respects. First, unlike the petitioner in Mayle,
whose proposed application of Civil Rule 15(c) would have
allowed his claims to be “raised later rather than sooner and
relate back,” id. at 661, many of Ross’s claims were raised in
his original petition—he simply failed to substantiate them

2
Under the approach I think we should take, federal habeas courts
might have to consider the facts set out in lengthier state-court decisions.
But surely even these decisions will not be “illegible,” and length alone
is no reason to ignore such a decision when it is included as an attachment
to a pro se habeas petition. Time is a valuable resource in state courts as
well, and there is no reason to believe that a state court will recite more
facts than are necessary to resolve whatever claims the petitioner raised
below.
 ROSS V. WILLIAMS 39

with sufficient facts.3 Second, the set of Ross’s claims that,
in my view, should be allowed to relate back is far narrower
than the set of claims at issue in Mayle: a habeas petitioner
should be allowed to amend his petition only to clarify claims
whose factual bases were clearly addressed in an attached
state-court decision denying him postconviction relief. Such
a limited rule would hardly “swallow AEDPA’s statute of
limitation.” Mayle, 545 U.S. at 662 (citation omitted).

Nor are the finality concerns cited by the majority
sufficient to justify withholding the benefit of liberal
construction from a pro se petitioner. Ross by no means
seeks a complete reprieve from AEDPA’s filing deadline,
since he indisputably filed his original petition within the
applicable one-year limitations period. In many cases,
moreover, a district court will have the power to deny leave
to file an amendment if it finds that the petitioner delayed
unjustifiably in preparing that amendment. See Fed. R. Civ.
P. 15(a)(2). Finally, the fact remains that when Ross filed his
original petition, he was proceeding pro se. The majority is

3
The majority disputes this, asserting that Ross’s original petition
“raised only ineffective assistance of counsel claims.” Majority Op. at 27
n.17. But the majority again reads Ross’s petition too narrowly. The
petition alleged that “counsel was ineffective for failing to” do a number
of things—including to “[s]ecure a speedy trial.” Liberally construed, this
allegation states a freestanding speedy trial claim. Moreover, even if
Ross’s original petition were properly read as asserting only ineffective
assistance of counsel claims, such claims make up the bulk of Ross’s
amended petition. Finally, although some of the claims in the amended
petition do not seem to appear in the original (even with the state-court
order attached), the match between the two petitions was not fully
addressed in the parties’ briefs—indeed, the state did not address the issue
at all. Thus, we should have done as the state suggested and remanded
this case to the district court to perform the relation-back analysis in the
first instance.
40 ROSS V. WILLIAMS

undoubtedly correct that AEDPA’s one-year deadline was
meant to “advance the finality of criminal convictions.”
Majority Op. at 17 (quoting Mayle, 545 U.S. at 662). But this
finality interest should not be advanced on the basis of fairly
trivial mistakes made by prisoners who proceed without the
advice of an attorney.4

* * *

When applying a Federal Rule of Civil Procedure in a
habeas case, courts must construe the rule in light of the basic
policies that underlie the habeas framework. See Mayle,
545 U.S. at 661–663 (interpreting the term “conduct,
transaction, or occurrence” in Civil Rule 15(c) in light of the
policy concerns underlying Habeas Rule 2); see also Habeas
Rule 12. But when the application of that rule involves a pro
se filing, courts must also heed traditional principles of liberal
construction. See Porter, 620 F.3d at 958. In the narrow
circumstances presented by this case, the efficiency and
finality concerns advanced by Habeas Rule 2 carry
diminished force, while the fairness concerns underpinning

4
According to the majority, “Mayle expressly rejected the argument
that a more liberal relation back scheme was necessary to protect the
interests of pro se prisoners.” See Majority Op. at 25–26. True, the Court
in Mayle rejected the petitioner’s broad reading of Civil Rule 15(c) despite
the dissent’s observation that “in the overwhelming majority of cases, the
original petition is the work of a pro se petitioner.” 545 U.S. at 675
(Souter, J., dissenting). But the rule proposed by the petitioner in Mayle
was far broader than the one advocated here. Moreover, the Mayle Court
described the dissent’s concerns as “understandable” and noted that “in
[this] case, counsel was appointed, and had some two and a half months
to amend the petition before AEDPA’s limitation period expired.” Id. at
664 n. 8. Here, Ross’s counsel was appointed after his AEDPA deadline
had run. By the Mayle Court’s own estimation, then, Ross’s pro se status
should carry greater weight here.
 ROSS V. WILLIAMS 41

the rule of liberal construction are directly implicated. Thus,
Ross’s original pro se petition should have been liberally
construed as setting out—or at least attempting to set
out—the facts stated in the attached state-court decision for
purposes of Civil Rule 15(c), and the claims in his amended
petition should have been allowed to relate back to the date
of his original petition to the extent that they arose out of
those facts.

I respectfully dissent.