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, District Judge, Presiding

Argued and Submitted En Banc June 19, 2019
San Francisco, California

Filed February 24, 2020

Before: Sidney R. Thomas, Chief Judge, and William A.
Fletcher, Ronald M. Gould, Richard A. Paez, Marsha S.
Berzon, Consuelo M. Callahan, Milan D. Smith, Jr., Sandra
S. Ikuta, Jacqueline H. Nguyen, Paul J. Watford and
Michelle T. Friedland, Circuit Judges.

Opinion by Judge Friedland;
Dissent by Judge Ikuta
2 ROSS V. WILLIAMS

SUMMARY *

Habeas Corpus

The en banc court reversed the district court’s judgment
dismissing as untimely Ronald Ross’s amended habeas
corpus petition challenging his Nevada state conviction for
theft-related offenses, and remanded.

Proceeding pro se, Ross timely filed a habeas petition in
the district court. Using a court-provided form, he asserted
eight claims of ineffective assistance of counsel. He also
attached an order from the Nevada Supreme Court affirming
the denial of his state petition for postconviction relief. After
AEDPA’s one-year statute of limitations had expired, Ross
filed with counsel’s assistance an amended petition that
included multiple claims, some of which resembled those
identified in Ross’s original pro se federal petition and
discussed in the attached state court order. Dismissing the
amended petition as untimely, the district court rejected
Ross’s argument that its claims related back to the original,
timely petition.

Explaining that Federal Rules of Civil Procedure
15(c)(1)(B) and 10(c) apply in habeas proceedings, the en
banc court held that if a petitioner attempts to set out habeas
claims by identifying specific grounds for relief in an
original petition and attaching a court decision that provides
greater detail about the facts supporting those claims, that
petition can support an amended petition’s relation back.
The en banc court held that the exhibit containing the
*
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

Nevada Supreme Court order was a part of the original
petition for all purposes under Rule 10(c), and that the
original petition therefore set out or attempted to set out
conduct, transactions, or occurrences to which claims in the
amended petition could relate back under Rule 15(c)(1)(B).

The en banc court wrote that the central question is
whether the amended and original petitions share a common
core of operative facts, as those facts are laid out in the
amended petition and “attempted to be set out” in the
original petition; and that if an exhibit to the original petition
includes facts unrelated to the grounds for relief asserted in
that petition, those facts were not “attempted to be set out”
in that petition and cannot form a basis for relation back.
Applying this framework, the en banc court wrote that
Ross’s amended petition and his original petition with the
attached exhibit share a common core of operative facts—
for example, defense counsel’s purported failure to object to
the state witness’s distraction theft testimony —such that the
amended petition relates back.

The en banc court rejected arguments (1) that the Nevada
Supreme Court order is not a “written instrument” within the
meaning of Rule 10(c) so it should not be considered part of
Ross’s petition and cannot provide facts to which the
amended petition could relate back, and (2) that a petition
can only incorporate an attachment by clearly and repeatedly
referencing it. The en banc court wrote that a petition need
not be pleaded with sufficient particularity to support
relation back. Observing that Habeas Rule 2(c)’s
particularity requirement applies to pleading, the en banc
court explained that the requirements of relation back are
explicitly more generous. The en banc court saw no basis to
conclude that, in general, allowing a petitioner to incorporate
facts from attachments into his petition for relation back
4 ROSS V. WILLIAMS

purposes will saddle district courts with a greater volume of
documents to review than the Habeas Rules expressly
contemplate.

The en banc court remanded for the district court to
consider which of the claims in the amended petition
(beyond the claim regarding the failure to object to expert
testimony) are supported by facts in the original petition.

Judge Ikuta, joined by Judges Callahan and M. Smith,
dissented. She wrote that the majority’s interpretation of
Rule 10(c) in the habeas context—to mean that the facts
contained in “a written instrument that is an exhibit to a”
habeas petition are “part of the pleading for all purposes” but
only to the extent the facts are arguably related to the
petition’s grounds for relief—is unworkably broad and
complex, inconsistent with the Habeas Rules, AEDPA’s
statute of limitations, and the Supreme Court’s guidance on
applying Rule 10(c) in this context.
 ROSS V. WILLIAMS 5

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.

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

David M. Porter, Chair, NADCL Amicus Committee,
Sacramento, California; Gabriel J. Chin, University of
California, Davis School of Law, Davis, California; for
Amici Curiae National Association of Criminal Defense
Lawyers and Aoki Center for Critical Race and Nation
Studies.
6 ROSS V. WILLIAMS

OPINION

FRIEDLAND, Circuit Judge:

Ronald Ross, proceeding pro se, timely filed a habeas
petition in the United States District Court for the District of
Nevada. Using a court-provided form for habeas petitions,
he asserted eight claims of ineffective assistance of counsel
based on specific alleged deficiencies in his trial counsel’s
performance. Ross’s statements on the form petition
contained a short description of each claim. Ross also
attached a six-page order from the Nevada Supreme Court
affirming the denial of his state petition for postconviction
relief. That order summarized the factual basis for most of
the claims Ross had raised in his state petition, many of
which were the same as those raised in his federal petition.

The district court appointed Ross counsel. Some months
later, after the one-year statute of limitations under the
Antiterrorism and Effective Death Penalty Act of 1996
(“AEDPA”), 28 U.S.C. § 2244(d)(1), had expired, Ross filed
an amended petition with counsel’s assistance. The
amended petition included multiple claims, some of which
resembled those that were identified in Ross’s original pro
se federal petition and discussed in the attached state court
order. The district court dismissed Ross’s amended petition
as untimely, rejecting Ross’s argument that its claims related
back to his original, timely petition.

A divided three-judge panel affirmed the district court’s
dismissal. Ross v. Williams, 896 F.3d 958, 972–73 (9th Cir.
2018). We granted rehearing en banc, Ross v. Williams,
920 F.3d 1222, 1223 (9th Cir. 2019), and now reverse.
 ROSS V. WILLIAMS 7

I

Following his conviction for several theft-related
offenses in Nevada state court, Ronald Ross was sentenced
under Nevada’s habitual offender statute to life in prison
with a possibility of parole after twenty years. Ross
appealed, and the Nevada Supreme Court affirmed his
conviction and sentence on November 8, 2010. Ross did not
file a petition for a writ of certiorari with the United States
Supreme Court.

On November 30, 2011, Ross petitioned for
postconviction relief in Nevada state district court, asserting
among other things various claims of ineffective assistance
of trial counsel. That court denied relief.

The Nevada Supreme Court affirmed on July 22, 2014,
explaining its decision in a six-page written order. That
order enumerated Ross’s claims that his trial counsel was
ineffective for:

(A) “failing to engage in pretrial
discovery,” which would have
enabled counsel to obtain a
surveillance video;

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

(C) allowing “a communication
breakdown [that] prevented [Ross]
from being able to assist counsel in
the preparation of his defense”;
8 ROSS V. WILLIAMS

(D) “failing to object to expert testimony
pertaining to pickpockets and
distraction thefts”;

(E) “failing to retain a defense expert to
rebut the expert testimony” about
pickpockets and distraction thefts;

(F) “failing to properly challenge the use
of a preliminary-hearing transcript in
lieu of live testimony” or to “mak[e]
an offer of proof as to what additional
questions counsel would have posed
to a live trial witness”;

(G) “failing to renew at trial [Ross’s]
preliminary-hearing objection”
concerning testimony about a
surveillance video on the grounds that
the testimony “violat[ed] the best
evidence rule”; and

(H) “failing to raise certain objections
during the State’s closing arguments
and at sentencing and . . . failing to
move post-verdict to dismiss the case
for lack of evidence.” 1

1
For ease of reference, we have adopted different labeling systems
to identify the claims in each of the documents at issue. We denote
claims addressed in the Nevada Supreme Court postconviction order as
Claims A–H, claims included in the original federal petition as Claims
1–8, and claims included in the amended federal petition as Claims I–
XI.
 ROSS V. WILLIAMS 9

In the course of rejecting those claims, the order discussed
the facts underlying most of them.

On September 14, 2014, Ross filed a pro se federal
habeas petition in the District of Nevada using the district’s
standard petition form. In relevant part, Ross listed his Sixth
Amendment right to counsel as the constitutional basis for
his claims. Where the form inquired about the facts on
which he based those claims, Ross provided a list of alleged
deficiencies in his trial counsel’s performance. The list
stated that trial counsel (1) “failed to secure a speedy trial”;
(2) “failed to review evidence prior to trial and adequately
prepare”; (3) “failed to file pretrial motions”; (4) “failed to
address the prejudice of evidence lost prior to trial”;
(5) “failed to prepare for . . . jury selection” because counsel
“attempted to force a deal”; (6) “failed to prepare for . . .
trial,” again because counsel “attempted to force a deal”;
(7) “failed to retain defense experts for . . . trial”; and
(8) “failed to object to the State’s use of [an] expert witness.”

Although Ross did not include any further facts on the
petition form, he appended an affidavit stating, among other
things, that the Nevada Supreme Court had affirmed the
denial of his state postconviction relief petition. The
affidavit included a notation to “see attached order.” Ross
then attached that order as exhibit “A.” On the same day, he
also filed a handwritten “request” in which he asked the
court to provisionally file the petition, give him leave to
amend, and appoint counsel. The request stated that
“Petitioner incorporates by reference and fact, the attached
Affidavit in support of this motion, and writ, with attached
exhibits.”

The district court reviewed the petition and appointed
counsel to assist Ross. It set a deadline for the filing of any
amended petition and stated that no response by the State
10 ROSS V. WILLIAMS

would be required absent further court order. Following
extensions of this filing deadline and with the assistance of
newly appointed counsel, Ross filed an amended habeas
petition on June 8, 2015, asserting eleven claims. Eight were
claims for ineffective assistance of counsel, alleging that
Ross’s trial counsel: (I) failed to protect Ross’s right to a
speedy trial; (II) failed to communicate with Ross prior to
trial; (III) failed to seek an appropriate sanction based on a
discovery violation; (IV) failed to object based on the best
evidence rule; (V) failed to object to expert testimony;
(VI) failed to call a defense expert; (VII) failed to object to
the admission of preliminary hearing testimony based on the
State’s inability to establish the witness’s unavailability; and
(VIII) failed to raise mitigating arguments at sentencing
against the imposition of a habitual offender sentence. The
remainder alleged: (IX) violation of the Confrontation
Clause; (X) violation of the right to a speedy trial; and
(XI) deprivation of due process based on legally insufficient
evidence.

The district court reviewed the amended petition and
directed the State to file a response. The State moved to
dismiss, arguing in relevant part that the amended petition
was untimely. The State highlighted that the amended
petition was filed after AEDPA’s one-year statute of
limitations had run, and the State contended that the
amended petition’s claims did not relate back to Ross’s
concededly timely original federal petition because the
original petition lacked factual allegations. Ross opposed
dismissal, arguing that his amended petition related back
because the Nevada Supreme Court order he had attached to
his original federal petition included the necessary facts.
The district court granted the State’s motion and entered an
order of dismissal. The court reasoned that Ross had
included no facts in his original form petition and had not
 ROSS V. WILLIAMS 11

referred to the attached state court order sufficiently for the
facts therein to be considered incorporated by reference, so
there was nothing to which the amended petition could relate
back.

Ross timely appealed.

II

As relevant to this case, AEDPA requires that an
individual seeking habeas relief from a state criminal
judgment file a petition in federal court within one year of
“the date on which the judgment became final by the
conclusion of direct review or the expiration of the time for
seeking such review.” 28 U.S.C. § 2244(d)(1)(A). This
statute of limitations is tolled during the pendency of state
postconviction proceedings. 28 U.S.C. § 2244(d)(2). As the
parties agree, Ross’s September 14, 2014 original petition
fell within the limitations period, while his June 8, 2015
amended petition did not. 2 The claims raised in the amended
petition are therefore untimely unless they relate back to
Ross’s original petition.

Under Rule 15(c)(1)(B) of the Federal Rules of Civil
Procedure, an otherwise untimely amended pleading “relates
back to the date of the original pleading when . . . the

2
Ross’s limitations period began to run on February 7, 2011, the
deadline for him to seek United States Supreme Court review of the
Nevada Supreme Court’s decision affirming his judgment of conviction.
The limitations period then ran for 296 days. It was tolled from
November 30, 2011 to August 18, 2014 during the pendency of Ross’s
state postconviction proceedings. When those proceedings concluded,
the limitations period began to run again. Because 296 of the 365 days
to file had already passed, the AEDPA deadline was the first business
day that was at least 69 days later: October 27, 2014.
12 ROSS V. WILLIAMS

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.” Federal Rule of Civil
Procedure 10(c) provides that “[a] statement in a pleading
may be adopted by reference elsewhere in the same pleading
or in any other pleading or motion” and that “[a] copy of a
written instrument that is an exhibit to a pleading is a part of
the pleading for all purposes.”

Relying on these rules, Ross argues that the exhibit
containing the Nevada Supreme Court order was “a part of
[his original petition] for all purposes,” and that the original
petition therefore “set out” or “attempted to . . . set out”
conduct, transactions, or occurrences to which claims in his
amended petition could relate back. Fed. R. Civ. P. 10(c);
Fed. R. Civ. P. 15(c)(1)(B). We agree.

A

Federal Rules of Civil Procedure 15(c)(1)(B) and 10(c)
apply in habeas proceedings. Under provisions of both the
Federal Rules of Civil Procedure and the Rules Governing
Section 2254 Cases in the United States District Courts (the
“Habeas Rules”), the Federal Rules of Civil Procedure apply
to habeas proceedings to the extent they are consistent with
the Habeas Rules, federal statutory provisions, and habeas
practice. See Fed. R. Civ. P. 81(a)(4); Habeas R. 12. An
additional statutory provision specifically incorporates
Federal Rule of Civil Procedure 15 into habeas procedure.
See 28 U.S.C. § 2242 (“[An] [a]pplication for a writ of
habeas corpus . . . . may be amended or supplemented as
provided in the rules of procedure applicable to civil
actions.”). We refer to Federal Rule of Civil Procedure
81(a)(4), Habeas Rule 12, and Section 2242 collectively
herein as the “Habeas Incorporation Provisions.”
 ROSS V. WILLIAMS 13

Relying on the Habeas Incorporation Provisions, the
Supreme Court has applied both Rule 15(c) and Rule 10(c)
to habeas proceedings. In Mayle v. Felix, 545 U.S. 644
(2005), the Supreme Court considered whether an amended
habeas petition related back to an original petition under
Rule 15(c). 3 Id. at 649, 656–64. In applying Rule 15(c) in
habeas cases, some courts of appeals had treated an entire
trial, conviction, or sentence as a “transaction” or
“occurrence” to which an amended petition could relate
back. See id. at 653–54, 656–57. The Court explained that
this approach misinterpreted Rule 15(c): An amended
petition “does not relate back . . . 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. Instead, the Court held, both petitions must “state
claims that are tied to a common core of operative facts.” Id.
at 664.

In Dye v. Hofbauer, 546 U.S. 1 (2005) (per curiam), the
Supreme Court held that, under Rule 10(c), a habeas
petitioner could rely on a brief appended to his petition to
plead his petition with sufficient particularity. Id. at 4. The
habeas petition at issue asserted a claim of prosecutorial
misconduct. See id. at 2–3. In support, the petitioner
attached a brief to his habeas petition, which articulated that
claim in more detail. See id. at 3–4. The petition made
repeated references to the brief. Id. at 4. The Supreme Court
treated the brief as part of the petition under Rule 10(c), and

3
Mayle relied on then-applicable provisions of the Habeas Rules
and Federal Rules of Civil Procedure. See Habeas R. 11 (2004); Fed. R.
Civ. P. 81(a)(2) (2004); Fed. R. Civ. P. 15(c)(2) (2004). Although these
provisions have since been renumbered and in some instances revised,
they remain identical or functionally equivalent to the provisions on
which Mayle relied. See Fed. R. Civ. P. 81(a)(4); Habeas R. 12; Fed. R.
Civ. P. 15(c)(1)(B).
14 ROSS V. WILLIAMS

accordingly deemed the petition to properly present the
prosecutorial misconduct claim regardless of whether,
without the attachment, the petition might have been
construed as presenting the claim “in too vague and general
a form.” Id.

B

The foregoing authorities make plain that relation back
is available under the circumstances presented here. If a
petitioner attempts to set out habeas claims by identifying
specific grounds for relief in an original petition and
attaching a court decision that provides greater detail about
the facts supporting those claims, that petition can support
an amended petition’s relation back. 4 An amended petition
relates back if it asserts one or more claims that arise out of
“the conduct, transaction, or occurrence” that the original
petition “set out” or “attempted to . . . set out”—in other
words, if the two petitions rely on a common core of
operative facts. Fed. R. Civ. P. 15(c)(1)(B); Mayle, 545 U.S.
at 657, 664. “[F]or all purposes,” including relation back,
the original petition consists of the petition itself and any
“written instrument[s]” that are exhibits to the petition. Fed.
R. Civ. P. 10(c); see also Dye, 546 U.S. at 4. Like a brief, a
court decision is a written instrument. See Dye, 546 U.S.
at 4.

4
Because that rule resolves this case, we do not consider whether
the original petition, without reliance on the attached Nevada Supreme
Court order, included enough factual content to support the relation back
of some of the claims later asserted in the amended petition. See infra
n.9.
 ROSS V. WILLIAMS 15

1

We follow two steps to determine whether an amended
petition relates back to an original petition that relied on an
appended written instrument to help set forth the facts on
which it based its claims. First, we determine what claims
the amended petition alleges and what core facts underlie
those claims. Second, for each claim in the amended
petition, we look to the body of the original petition and its
exhibits to see whether the original petition “set out” or
“attempted to . . . set out” a corresponding factual episode,
see Fed. R. Civ. P. 15(c)(1)(B)—or whether the claim is
instead “supported by facts that differ in both time and type
from those the original pleading set forth,” Mayle, 545 U.S.
at 650, 664. At a minimum, the original petition “attempted
to . . . set out” all facts that supported a ground for relief
asserted in the original petition. Those facts therefore could
provide the necessary correspondence for relation back. Cf.
id. at 659–60 (explaining that an amendment that “invoked
a legal theory not suggested by the original complaint” could
relate back to the original complaint because it arose out of
the same “episode-in-suit” (citing Tiller v. Atl. Coast Line R.
Co., 323 U.S. 574, 580–81 (1945)) 5).

In comparing the petitions’ sets of facts, we do not
require that the facts in the original and amended petitions
be stated in the same level of detail. Relation back may be
appropriate if the later pleading “merely correct[s] technical
deficiencies or expand[s] or modif[ies] the facts alleged in
the earlier pleading,” “restate[s] the original claim with

5
“Episode-in-suit” refers to the incident that gave rise to a lawsuit.
In Tiller, the episode-in-suit was “a worker’s death attributed . . . to the
railroad’s failure to provide its employee with a reasonably safe place to
work.” Mayle, 545 U.S. at 660.
16 ROSS V. WILLIAMS

greater particularity,” or “amplif[ies] the details of the
transaction alleged in the preceding pleading.” 6A Charles
Alan Wright & Arthur R. Miller, Federal Practice and
Procedure § 1497 (3d ed. 2019). Sufficient correspondence
exists if the two claims arise out of the same episode-in-suit.
See, e.g., Mayle, 545 U.S. at 664 n.7 (approving relation
back when “the original petition challenged the trial court’s
admission of recanted statements, while the amended
petition challenged the court’s refusal to allow the defendant
to show that the statements had been recanted” (citing
Woodward v. Williams, 263 F.3d 1135, 1142 (10th Cir.
2001)); Nguyen v. Curry, 736 F.3d 1287, 1296–97 (9th Cir.
2013) (determining that a claim that appellate counsel was
ineffective for failing to raise double jeopardy related back
to a timely raised substantive double jeopardy claim),
abrogated on other grounds by Davila v. Davis, 137 S. Ct.
2058 (2017).

The central question under this framework is whether the
amended and original petitions share a common core of
operative facts, as those facts are laid out in the amended
petition and “attempted to be set out” in the original petition.
If an exhibit to the original petition includes facts unrelated
to the grounds for relief asserted in that petition, those facts
were not “attempted to be set out” in that petition and cannot
form a basis for relation back.

Applying this framework here, Ross’s original form
petition and attached exhibit contain core facts to which
claims in his amended petition relate back. An obvious
example is Claim V of Ross’s amended federal petition,
which asserts that Ross’s trial counsel was ineffective for
failing to object when the State failed to “provide any notice
that [it] intended to present expert testimony” from the
State’s witness about what “distract theft[s]” were. In his
 ROSS V. WILLIAMS 17

original form petition, Ross listed as Claim 8 the similar
contention that “counsel . . . failed to object to the State’s use
of [an] expert witness.” The attached Nevada Supreme
Court postconviction order provided factual details related
to this claim. In its discussion of Claim D, that order
evaluated Ross’s argument that his “counsel was ineffective
for failing to object to expert testimony pertaining to
pickpockets and distraction thefts where the [State’s]
witness was not noticed as an expert.” Comparing the
claims’ operative facts clearly reveals a common core—
defense counsel’s purported failure to object to the state
witness’s distraction theft testimony—that was present in the
original petition and to which the amended petition relates
back. 6

2

None of the State’s or the dissent’s counterarguments is
persuasive. The State argues that the Nevada Supreme
Court’s order is not a “written instrument” within the
meaning of Rule 10(c), so it should not be considered part of
Ross’s petition and cannot provide facts to which the
amended petition could relate back. But Rule 10(c) does not
define “written instrument,” and, especially in the habeas
context, there is no reason to believe—as the State
contends—that the term was intended to be limited to private
written agreements such as contracts, leases, or wills. See
Habeas R. 4 advisory committee’s note to 1976 adoption
(consideration of habeas petition “may properly encompass
6
As explained below, see infra Part III, we remand for the district
court to consider which of the remaining claims in the amended petition
are supported by facts in the original petition. We emphasize that the
correspondence need not be as precise as the correspondence in the
expert testimony claim for there to be relation back. See Nguyen,
736 F.3d at 1296–97.
18 ROSS V. WILLIAMS

any exhibits attached to the petition, including, but not
limited to, transcripts, sentencing records, and copies of state
court opinions” (emphasis added)). Indeed, Dye instructs
that a legal brief counts as a written instrument within the
meaning of Rule 10(c). See 546 U.S. at 4. 7 We need not
articulate a comprehensive definition of “written
instrument,” because, whatever the boundaries of the
definition, if it includes a brief it must include formal judicial
decisions.

The State contends, however, that even if the Nevada
Supreme Court’s order is a written instrument within the
meaning of Rule 10(c), Dye imposes a requirement that a
petition can only incorporate an attachment by “clear[ly] and
repeated[ly]” referencing it—which the State argues Ross
did not do. See Dye, 546 U.S. at 4. But neither the Habeas
Incorporation Provisions nor any other governing law erects
this hurdle to petitioners’ pursuit of habeas relief. Dye
treated an appended supporting brief as part of a habeas
petition pursuant to Rule 10(c), without making a distinction
between habeas petitions and other civil actions for purposes

7
Dye did not specify whether it relied on the portion of Rule 10(c)
providing that a “written instrument that is an exhibit to a pleading is a
part of the pleading for all purposes,” the portion of Rule 10(c) providing
that “statement[s] in a pleading” may be “adopted by reference
elsewhere in the same pleading or in any other pleading or motion,” or
both. Fed. R. Civ. P. 10(c). For two reasons, we understand the Court
to have relied at least on the “written instrument” provision. First, the
Court described the brief as appended to the petition, which is best
understood as a reference to the portion of Rule 10(c) about exhibits.
Second, it is unlikely that the Supreme Court considered the brief in itself
to be “a pleading” within the meaning of the other portion of Rule 10(c).
See Fed. R. Civ. P. 7(a) (defining types of pleadings that may be filed in
federal court, and not listing briefs); Swanson v. U.S. Forest Serv.,
87 F.3d 339, 345 (9th Cir. 1996) (distinguishing between a pleading and
a brief).
 ROSS V. WILLIAMS 19

of the incorporation of attachments. See id. (citing one of
the Habeas Incorporation Provisions, then-Rule 81(a)(2), to
support application of Rule 10(c)). The Court mentioned
that the petition made “clear and repeated references” to the
brief, id. at 4, but that does not mean that it was necessary
for the petition to do so in order for that attachment to be a
part of the petition. To the extent the Court relied on the
“clear and repeated references” to the brief at all, it would
have been because the issue in Dye was about whether the
petition was pleaded with sufficient particularity, not about
relation back. 8

In fact, a petition need not be pleaded with sufficient
particularity to support relation back. Arguing otherwise,
the State contends that Habeas Rule 2(c), which requires that
habeas petitions “specify all the grounds for relief available”
to a petitioner and “state the facts supporting each ground,”
cabins relation back by precluding the consideration of any
matter outside the four corners of the petition. Similarly, the
dissent suggests that the purported conflict between
Rule 10(c) and Habeas Rule 2 indicates that we should
preclude courts from examining exhibits for relation back
purposes unless the exhibits have been clearly and
repeatedly incorporated by reference. Dissent at 38–40, 47
& n.6. We cannot agree with either approach for the simple
reason that Rule 2(c) sets forth only a pleading requirement.
The requirements for relation back are different—and
explicitly more generous. Rule 15(c)(1)(B) allows relation
back to an occurrence that was only “attempted to be set out”

8
Like the State, the dissent insists that Dye formulated a habeas-
specific rule that an exhibit is incorporated only when the petition makes
“clear . . . reference[]” to it. Dissent at 47 (alteration in original). Yet
the dissent offers no explanation of why our contrary reading of Dye is
incorrect.
20 ROSS V. WILLIAMS

in the original pleading, which necessarily contemplates that
the original pleading may be inadequately pleaded yet still
support relation back. Fed. R. Civ. P. 15(c)(1)(B) (emphasis
added); see also, e.g., Dean v. United States, 278 F.3d 1218,
1222 (11th Cir. 2002) (per curiam) (concluding that claims
in an amended habeas petition could relate back to claims in
an original petition that expressly omitted supporting facts if
the claims arose out of the same specific conduct or
occurrence); 9 McClellon v. Lone Star Gas Co., 66 F.3d 98,
102 (5th Cir. 1995) (allowing relation back to original
complaint that “obviously did not conform with the pleading
requirements of [R]ule 8”). Indeed, a key purpose of Rule
15 is to permit pleading deficiencies to be fixed through
amendment. See Wright & Miller § 1497. 10

9
The Eleventh Circuit in Dean adopted an even more permissive
approach to relation back than Ross advocates for—or than we need
consider—here. In Dean, the original petition included a claim objecting
to perjured testimony at trial for which the petitioner provided no factual
support at all, indicating that he intended to file “all facts in support
thereof” at a later time. Id. at 1221–22. The Eleventh Circuit held that
this claim, among others, provided a basis for the amended petition to
relate back. See id. at 1222. The court explained: “When the nature of
the amended claim supports specifically the original claim, the facts
there alleged implicate the original claim, even if the original claim
contained insufficient facts to support it. One purpose of an amended
claim is to fill in facts missing from the original claim.” Id.
10
The dissent sidesteps the fact that whether a petition was pleaded
with sufficient particularity and whether a subsequent petition relates
back to facts set out or attempted to be set out in the original petition are
different questions governed by different standards, instead insisting that
an original petition’s failure to comply with the requirements for filing
an adequate habeas petition prevents it from supporting relation back.
Dissent at 40. But the inquiries are not so easily merged, because Rule
15 expressly contemplates that inadequately pleaded pleadings may
 ROSS V. WILLIAMS 21

Mayle does not instruct otherwise. The Court did explain
in Mayle that, because Habeas Rule 2(c)’s particularity-in-
pleading requirement is “more demanding” than Federal
Rule of Civil Procedure 8(a)(2)’s notice pleading standard,11
habeas petitioners could not rely on a definition of “conduct,
transaction, or occurrence” that was more “capacious” than
the definition applied to civil cases. 545 U.S. at 655, 657.
But, contrary to the dissent’s suggestion, see Dissent at 35–
36, Mayle did not adopt a habeas-specific meaning of Rule
15 that is less capacious than the standard civil definition.
Rather, relying on Rule 15’s application in “run-of-the-mine
civil proceedings,” Mayle simply explained that relation
back depends upon there being claims in the amended
petition that share a common core of operative facts with

support relation back, thereby requiring an analysis of what the pleading
set out or attempted to set out, including in the habeas context.
11
In light of the Supreme Court’s later decisions in Ashcroft v. Iqbal,
556 U.S. 662 (2009), and Bell Atlantic Corp. v. Twombly, 550 U.S. 544
(2007), it is not clear that there remains much practical difference
between Habeas Rule 2(c)’s and Federal Rule of Civil Procedure
8(a)(2)’s pleading standards. Compare Iqbal, 556 U.S. at 677–78
(explaining that to survive a motion to dismiss a civil pleading must
“state a claim to relief that is plausible on its face” and cannot rely on
“labels and conclusions,” “‘naked assertion[s]’ devoid of ‘further factual
enhancement,’” or “a sheer possibility that a defendant has acted
unlawfully” (alteration in original) (quoting Twombly, 550 U.S. at 555,
557, 570)), with Mayle, 545 U.S. at 655 (“In the past, petitions have
frequently contained mere conclusions of law, unsupported by any facts.
[But] it is the relationship of the facts to the claim asserted that is
important.” (alteration in original) (quoting Habeas R. 2(c) advisory
committee’s note to 1976 adoption)), and id. (“[T]he petition is expected
to state facts that point to a real possibility of constitutional error.”
(quoting Habeas R. 4 advisory committee’s note to 1976 adoption)).
22 ROSS V. WILLIAMS

claims in the original habeas petition. 545 U.S. at 657–59. 12
The general principle that relation back requires a single
course or pattern of conduct—not factually and temporally
unrelated conduct arising out of the same underlying
proceeding—showed why an entire criminal proceeding was
too broad to “delineate an ‘occurrence’” for relation back
purposes. Id. at 661 (quoting Fed. R. Civ. P. 15(c)). Here,
Ross identified particular errors that he believes entitle him
to habeas relief; nowhere in his original or amended petition
did he attempt to rely on his entire trial as the transaction or
occurrence at issue. 13

The State next contends that permitting relation back
based on attached exhibits would contravene the goals
motivating the Habeas Rules’ adoption in Rule 2(d) of a
standard form for habeas petitions. The Advisory
Committee explained that the form was adopted to achieve
greater administrative convenience. Prior to adoption of the
form, petitions frequently contained “mere conclusions of
law, unsupported by any facts,” or were “lengthy and often
illegible . . . [and] arranged in no logical order.” See Habeas

12
The dissent suggests that applying normal relation back principles
in federal habeas cases is “inconsistent with AEDPA.” Dissent at 44, 47
n.6. This suggestion cannot be reconciled with the reasoning in Mayle,
which applied normal relation back principles to determine relation back
in a habeas case. If the Supreme Court had believed that allowing
relation back defied AEDPA’s statute of limitations, it presumably
would have just said so instead of engaging in all of the analysis it did in
Mayle.
13
Indeed, Mayle instructs courts to look for “congeries” of facts,
545 U.S. at 661—which the Oxford English Dictionary defines as a
“collection of things merely massed or heaped together; a mass, heap,”
Oxford English Dictionary (2d ed. 1989)—thereby illustrating our prior
point that relation back looks to the existence of supporting facts and not
to how well those facts are pleaded.
 ROSS V. WILLIAMS 23

R. 2(c) advisory committee’s note to 1976 adoption. 14
Judges who received such submissions “had to spend hours
deciphering them.” Id.

We disagree with the State that ruling in Ross’s favor
here will saddle district courts with the task of sifting
through unmanageably large attachments. As an initial
matter, Ross was obligated to attach the Nevada Supreme
Court decision to his habeas petition, 15 and the Advisory
Committee notes to the 1976 adoption of Habeas Rule 4
explicitly contemplate that district courts will review “any
exhibits attached to the petition, including, but not limited
to, transcripts, sentencing records, and copies of state court
opinions” as part of their ordinary habeas screening
obligations. Accordingly, we see no basis to conclude that,
in general, allowing a petitioner to incorporate facts from
attachments into his petition for relation back purposes will

14
Following the 1976 enactment of the Habeas Rules, subsequent
amendments moved the provision providing for a form petition from
Habeas Rule 2(c) to Habeas Rule 2(d). Accordingly, this note
corresponds to the provision now listed in Habeas Rule 2(d).
15
Because the form petition required Ross to attach the decision, it
is far from clear that, as the dissent contends, Ross failed to “substantially
follow” the requirements of the form petition. See Habeas R. 2(d);
Dissent at 40–42. The form petition purported to allow Ross to attach
only two pages stating supporting facts, but it also included a separate
requirement that he attach a state court order he knew to contain further
supporting facts. Faced with this apparent inconsistency, he might
reasonably have interpreted the form’s instructions not to constrain him
from relying on the facts in required attachments.
24 ROSS V. WILLIAMS

saddle district courts with a greater volume of documents to
review than the Habeas Rules expressly contemplate. 16

Moreover, in determining whether an amended petition
relates back, district courts face no obligation to wade
unguided through entire exhibits attached to an original
petition to determine whether those exhibits contain core
facts. Relation back is decided once there is an amended
petition—and an amended petition must itself satisfy the
particularity standards of Rule 2(c) in order to avoid
dismissal on particularity grounds, separate and apart from
timeliness concerns. The only operative pleading before the
court will therefore presumably be one that is particular and
not too difficult to navigate. Moreover, relation back is
rarely decided on the pleadings alone; instead, courts
typically have the benefit of briefing on a motion to amend
or motion to dismiss. As in this case, such briefing will
typically identify the specific portions of an earlier pleading
that contain the relevant factual material to which the new
pleading is attempting to relate back, avoiding the need for
the judge to sift independently through the original petition’s
exhibits. If the submissions discussing the amended petition
fail to do so, district courts have familiar remedies, such as
dismissing the new claim as time-barred for failure to show
that it relates back, declining to grant leave to amend for
similar reasons, or requesting supplemental briefing to better
explain the relationship between the amended petition and

16
The dissent at first appears to suggest that treating exhibits as part
of a habeas petition would undermine various aspects of habeas rules and
procedure, see Dissent at 40–42, but it later admits that any documents
to which a petition makes “clear . . . reference[]” would be incorporated
therein, see id. at 47 (alteration in original). The dissent offers no
account of why its concerns about the volume of attachments or
compliance with the habeas rules would be ameliorated by the inclusion
of words such as “see attached” or “incorporated by reference.”
 ROSS V. WILLIAMS 25

the original one—for example, by identifying the particular
facts from an attachment that support each claim for relief. 17

To the extent the State has a separate concern about
whether contending with voluminous filings is consistent
with Rule 2’s particularity-in-pleading standard, the Habeas
Rules provide a more direct solution. It is true that some of
the requirements of Habeas Rule 2 were motivated by the
Advisory Committee’s concern that petitioners too
frequently filed “lengthy and often illegible petitions” or
“mere conclusions of law, unsupported by any facts.” See
Habeas R. 2(c) advisory committee’s note to 1976 adoption.
But when a petitioner files a petition that is insufficient under
the particularity-in-pleading standard, the Advisory
Committee Notes instruct that the district court must accept
and file the defective petition, and in appropriate
circumstances “require the petitioner to submit a corrected
petition that conforms to Rule 2(c).” See Habeas R. 2(c)
advisory committee’s note to 2004 amendment. Although
an earlier incarnation of Rule 2 had permitted a court to
return an insufficient petition to the petitioner without filing
it, following the enactment of AEDPA’s one-year statute of
limitations the Advisory Committee cautioned that rejecting
without filing “a petition because it is not in proper form may
pose a significant penalty for a petitioner, who may not be
able to file another petition within the . . . limitations
period.” Id. Rather than retroactively applying—with

17
Contrary to the dissent’s view, see Dissent at 33–34, our holdings
that an attachment to a petition is a part of the petition for all purposes
and that only those facts that correspond to a claim asserted in the
petition are “set out or attempted to be set out” in that petition are entirely
consistent. Background facts set out in an attachment that are unrelated
to the original petition’s claims may be a part of a petition without
necessarily setting out or attempting to set out a transaction or occurrence
to which a later amended petition may relate back.
26 ROSS V. WILLIAMS

prejudice—the requirements of Rule 2(c) to an original
pleading once there is an amended pleading, district courts
must accept original petitions in the form they are filed and
then enforce Rule 2(c) by requiring petitioners to make any
necessary adjustments through the amendment process. 18

These commonsense procedures also dispose of any
concern that petitioners could lay the groundwork for an
endless host of claims unburdened by the statute of
limitations merely by submitting a blank petition and
attaching a complete trial record or other voluminous filings.
Such a petitioner would have failed to set out any claims in
her original petition in the first place, and therefore could not
incorporate corresponding facts under the rule we explain
here. And the district court would have ample ability to
require re-filing to ensure that such a petitioner complied
with the particularity-in-pleading requirement. 19

18
For example, if, upon “promptly examin[ing]” Ross’s original
petition, the district court had concern about a deficiency in that petition,
the district court could have informed Ross about the deficiency. See
Habeas R. 4. Had the court done so, Ross could have simply copied the
factual background from the state court order into an amended petition.
Indeed, there is every reason to believe Ross would have done precisely
this given that he had already tried to incorporate that order by reference
in support of his claims. If this rote copying had occurred before the
statute of limitations had run, there would be no question that Ross’s
amended petition would not be time barred.
19
Although the reasons given above suffice to require reversal here,
we also note that courts are obligated to “liberally construe[]” documents
filed pro se, like Ross’s original petition. Erickson v. Pardus, 551 U.S.
89, 94 (2007) (per curiam) (quoting Estelle v. Gamble, 429 U.S. 97, 106
(1976)). Doing so, it is clear that Ross “attempted to . . . set out” the
factual background for the claims in his petition by attaching the Nevada
Supreme Court’s order to it. Fed. R. Civ. P. 15(c)(1)(B). The obligation
to construe pro se filings liberally means courts must frequently look to
 ROSS V. WILLIAMS 27

III

For the foregoing reasons, claims in Ross’s amended
petition that share core operative facts in common with those
in his original petition relate back to the original petition and
should not have been dismissed. But because we do not
typically consider in the first instance issues not discussed
by the district court, see Am. President Lines, Ltd. v. Int’l
Longshore & Warehouse Union, Alaska Longshore Div.,
Unit 60, 721 F.3d 1147, 1157 (9th Cir. 2013), we will not
ourselves undertake the full comparison necessary to
determine which claims in the amended petition relate back.
Rather, we remand for the district court to consider which of
the claims in the amended petition (beyond the claim
regarding the failure to object to expert testimony, discussed
above) are supported by facts incorporated into the original
petition.

REVERSED AND REMANDED.

the contents of a pro se filing rather than its form. For example, in Zichko
v. Idaho, 247 F.3d 1015 (9th Cir. 2001), we concluded that a habeas
petitioner had preserved for appeal a particular claim even though facts
relating to that claim did not appear in the part of the pro se petition in
which he labeled and summarized the claim. Id. at 1020-21. And in
Woods v. Carey, 525 F.3d 886 (9th Cir. 2008), we explained that, when
a pro se petitioner whose habeas petition is pending submits a new
petition, the new petition should be construed as a motion to amend the
pending petition rather than as a second or successive petition. Id.
at 888-90; see also Belgarde v. Montana, 123 F.3d 1210, 1213 (9th Cir.
1997) (noting that we construe pro se petitioners’ use of habeas forms
“with deference”).
28 ROSS V. WILLIAMS

IKUTA, Circuit Judge, joined by CALLAHAN and
M. SMITH, Circuit Judges, dissenting:

The Federal Rules of Civil Procedure (the Civil Rules)
do not automatically apply to habeas proceedings. Instead,
the Supreme Court has made clear that courts must first
determine whether a Civil Rule is inconsistent with the
Habeas Rules or AEDPA, and if so, whether a less expansive
reading of the Civil Rule eliminates the conflict. See Mayle
v. Felix, 545 U.S. 644, 656–64 (2005); Gonzalez v. Crosby,
545 U.S. 524, 528–33 (2005). Here, the majority interprets
Rule 10(c) in the habeas context to mean that the facts
contained in “a written instrument that is an exhibit to a”
habeas petition are “part of the pleading for all purposes” but
only to the extent the facts are arguably related to the
petition’s grounds for relief. On its face, this interpretation
is unworkably broad and complex, saddling district courts
with the task of sorting through voluminous attachments to
determine which facts correspond to a petition’s grounds for
relief. In effect, the majority returns us to the gloomy days
before the Habeas Rules when judges spent hours
deciphering “two thousand pages of irrational, prolix and
redundant pleadings.” Rule 2, Rules Governing Section
2254 Cases, advisory committee’s notes (quoting Passic v.
Michigan, 98 F. Supp. 1015, 1016 (E.D. Mich. 1951)).
Because the majority’s interpretation is inconsistent with the
Habeas Rules, AEDPA’s statute of limitations, and the
Supreme Court’s guidance on applying Rule 10(c) in this
context, see Dye v. Hofbauer, 546 U.S. 1, 4 (2005) (per
curiam), I dissent.

I

In 2009, Ronald Ross was convicted by a jury of several
theft-related offenses. He was sentenced under Nevada’s
habitual-offender statute, receiving a lifetime term of
 ROSS V. WILLIAMS 29

imprisonment with eligibility for parole after 20 years. Ross
appealed his conviction and sentence. The Nevada Supreme
Court affirmed.

Ross then filed a pro se petition for post-conviction relief
(PCR) in Nevada state court. He attached to the petition a
22-page handwritten memorandum that set forth the factual
bases for his claims in greater detail. When the form petition
asked for “supporting facts,” Ross repeatedly referenced his
“supporting memorandum.” The state PCR court denied
relief, and the Nevada Supreme Court affirmed.

Having exhausted his state-court remedies, Ross filed a
timely pro se habeas petition in federal court. Ross used the
court-provided form “Petition for Writ of Habeas Corpus
Pursuant to 28 U.S.C. § 2254 By a Person in State Custody.”
The form instructs a petitioner to “[a]ttach to this petition a
copy of all state court written decisions regarding this
conviction.” In boldface, the form warns the petitioner:

State concisely every ground for which you
claim that the state court conviction
and/or sentence is unconstitutional.
Summarize briefly the facts supporting
each ground. You may attach up to two
extra pages stating additional grounds
and/or supporting facts. You 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.

The form then leads the petitioner step-by-step to provide the
necessary information for each claimed ground for relief.
For each alleged ground of relief, the form states, “I allege
30 ROSS V. WILLIAMS

that my state court conviction and/or sentence are
unconstitutional, in violation of my __________
Amendment right to __________, based on these
facts:__________ .” The form then guides the petitioner to
explain how this claim was exhausted in state court.

The final page of the form requires a certification as to
the truth of the allegations. This page states in boldface,
“DECLARATION UNDER PENALTY OF PERJURY,”
and continues:

I understand that a false statement or answer
to any question in this declaration will subject
me to penalties of perjury. I DECLARE
UNDER PENALTY OF PERJURY
UNDER THE LAWS OF THE UNITED
STATES OF AMERICA THAT THE
FOREGOING IS TRUE AND
CORRECT.

The petitioner must then sign and date the form.

In his petition, Ross alleged violations of his Fifth
Amendment right to due process, his Sixth Amendment right
to counsel, and his Fourteenth Amendment right to due
process and equal protection. But each time the petition
required a statement that the alleged constitutional violation
was “based on these facts,” Ross provided only the following
conclusory allegations:

Counsel was ineffective for failing to:

1. Secure a speedy trial

2. Failed to review evidence and adequately
prepare
 ROSS V. WILLIAMS 31

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 did not take the opportunity to “attach up to two extra
pages stating additional grounds and/or supporting facts.”
And unlike in state court, where Ross repeatedly referenced
a “supporting memorandum,” Ross did not indicate that any
attached document contained “supporting facts,” or even
mention any attached document.

Ross did, however, attach several documents to his
petition. First, he attached a three-page handwritten affidavit
in which he explained that he encountered delays in
obtaining a copy of a Nevada Supreme Court ruling on his
post-convictions relief claims. Second, he attached a copy
of the six-page Nevada Supreme Court ruling, along with a
remittitur and the first page of a letter from his attorney
regarding the ruling. But Ross’s petition made no mention
of the Nevada Supreme Court ruling.

AEDPA’s one-year statute of limitations, see 28 U.S.C.
§ 2244(d)(1), expired on October 27, 2014, a little over a
month after Ross filed his original petition. On June 8, 2015,
nearly eight months after the limitations period expired,
Ross’s newly appointed counsel filed a 27-page petition
32 ROSS V. WILLIAMS

styled as a “First Amended Petition for Writ of Habeas
Corpus.” The new petition raised eleven claims for relief
and provided several pages of facts and argument for each of
the claims. The state moved to dismiss on the ground that
the amended petition was time barred, and the district court
granted the motion. This appeal followed.

II

There is no dispute that Ross filed his amended petition
after AEDPA’s one-year statute of limitations ran. Maj.
at 11. To avoid this time bar, Ross argues that the amended
petition “relates back” to the date of the original petition
under Rule 15(c)(1) of the Federal Rules of Civil Procedure
(the Civil Rules). 1

There is a fatal flaw with Ross’s argument: To relate
back, the amended petition must assert “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.”
Fed. R. Civ. P. 15(c)(1). But as the majority tacitly
concedes, see Maj. at 9, 12, Ross’s original petition contains
no well-pleaded factual allegations—indeed, it contains no
factual allegations at all. Because the original petition fails
to set out any “conduct, transaction, or occurrence,” relation
back under Rule 15(c)(1) is simply unavailable.

This should be the end of Ross’s story. But the majority
springs an unexpected twist. According to the majority, the
Nevada Supreme Court ruling that is attached to Ross’s

1
Rule 15(c)(1) provides: “An amendment to a pleading relates back
to the date of the original pleading when . . . the amendment asserts a
claim or defense that arose out of the conduct, transaction, or occurrence
set out—or attempted to be set out—in the original pleading.” Fed. R.
Civ. P. 15(c)(1).
 ROSS V. WILLIAMS 33

habeas petition must be deemed to be part of the petition
under Rule 10(c) of the Civil Rules. Maj. at 14. 2 But not the
entire ruling; rather, the majority explains, only the facts in
the ruling that are related to the original petition’s “grounds
for relief” are incorporated into the petition. Maj. at 16. If
any of the facts in the ruling are “unrelated” to the original
petition’s grounds for relief, they are effectively stricken
from the attachment. Maj. at 16. The majority explains that,
after determining which facts are incorporated into the
original petition, the district court must then determine
whether the claims in the amended petition are “supported
by facts in the original petition.” Maj. at 17 n.6. The
majority “emphasize[s],” however, that the correspondence
between the facts incorporated by attachment into the
original petition and the new claims need not be that
“precise.” Maj. at 17 n.6.

It is far from clear what is required under the majority’s
new rule.

As a threshold matter, the majority is inconsistent.
Relying first on the language of Rule 10(c), the majority
states that “the original petition consists of the petition itself
and any ‘written instrument[s]’ that are exhibits to the
petition” for “all purposes.” Maj. at 14. But the majority
then skips over the operative language in Rule 10(c)—that
the written instrument is “part of the pleading for all
purposes”—and instead holds that the original petition
includes only certain facts set forth in the exhibit—

2
Rule 10(c) states: “Adoption by Reference; Exhibits. 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).
34 ROSS V. WILLIAMS

apparently, those facts that can be used for the relation back
of a subsequent amended petition. See Maj. at 16. This
novel approach of using Rule 15(c) to determine the content
of a habeas petition from the vantage point of a later,
untimely petition has no support in the Civil or Habeas
Rules.

Even if this backwards-looking approach made sense,
the majority fails to provide district courts with any guidance
on how to determine when the facts in an attached exhibit
are related to the “grounds for relief asserted in [a] petition.”
Maj. at 16. The legal claims listed in the form habeas
petition are often broad and vague. Here, for instance,
Ross’s original petition asserts violations of his Fifth
Amendment right to Due Process, his Sixth Amendment
right to counsel, and his Fourteenth Amendment right to Due
Process and Equal Protection, based on conclusory
allegations such as “[c]ounsel was ineffective for failing to
. . . prepare for trial.” How will a district court determine
whether the facts in voluminous attachments, which may
include opinions, briefs, and entire trial transcripts, relate to
the claim that counsel failed to “prepare for a trial”? The
majority does not say. The task may be manageable in this
case, where the attachment is a mere six-page judicial
opinion. But as the majority implicitly recognizes, a district
court must undertake this analysis with respect to any and all
attachments to the habeas petition, which could amount to
thousands of pages, and the district court must deem any fact
in any attachment that even arguably relates to a broad claim
to be part of the original petition, at least for purposes of
relation back. See Maj. at 17 & n.6.

There is a critical problem with such an expansive
interpretation and application of Rule 10(c): it is directly
 ROSS V. WILLIAMS 35

contrary to Supreme Court rulings preventing this sort of
application of the Civil Rules in the habeas context.

III

The Supreme Court has made clear that “habeas corpus
is . . . not automatically subject to all rules governing
ordinary civil actions.” Schlanger v. Seamans, 401 U.S. 487,
490 n.4 (1971) (citing Harris v. Nelson, 394 U.S. 286
(1969)). Habeas proceedings are “unique,” and so “[h]abeas
corpus practice in the federal courts has conformed with civil
practice only in a general sense.” Harris, 394 U.S. at 294.
From its inception, habeas corpus was “tempered by a due
regard for the finality of the judgment of the committing
court.” Schneckloth v. Bustamonte, 412 U.S. 218, 256
(1973) (Powell, J., concurring).

The Court has likewise made clear that a Civil Rule
“applies in habeas corpus proceedings under 28 U.S.C.
§ 2254 only ‘to the extent that [it is] not inconsistent with’
applicable federal statutory provisions and rules.” Gonzalez,
545 U.S. at 529 (footnote omitted) (citation omitted).
Specifically, Rule 81(a)(4) of the Civil Rules provides that
the Civil Rules apply to habeas proceedings only “to the
extent that the practice in those proceedings: (A) is not
specified in a federal statute [or the Habeas Rules]; and
(B) has previously conformed to the practice in civil
actions.” Fed. R. Civ. P. 81(a)(4). Similarly, Habeas Rule
12 “‘permits application of the [Civil Rules] only when it
would be appropriate to do so,’ and would not be
‘inconsistent or inequitable in the overall framework of
habeas corpus.’” Mayle, 545 U.S. at 654 (quoting Rule 11,
Rules Governing Section 2254 Cases, advisory committee’s
notes (2004)). Moreover, even beyond a “substantive
conflict with AEDPA standards,” a Civil Rule cannot be
36 ROSS V. WILLIAMS

applied if it “could be used to circumvent” habeas-specific
procedures. Gonzalez, 545 U.S. at 531–32.

In light of the Supreme Court’s recognition that courts
must “limit the friction” between a Civil Rule and habeas
requirements, id. at 534, the Court has provided a framework
for applying Civil Rules in the habeas context.

First, any interpretation and application of a Civil Rule
in the habeas context must be consistent with the
corresponding Habeas Rule and the unique nature of habeas
proceedings. A court may not adopt an expansive
interpretation of a Civil Rule if doing so will interfere with
habeas-specific requirements. See Mayle, 545 U.S. at 664;
see also Harris, 394 U.S. at 297 (rejecting a “literal
application” of Rule 33, which provides for discovery
through interrogatories, to habeas proceedings, because it
“would do violence to the efficient and effective
administration of” habeas). Thus in Mayle, the Court
rejected the Ninth Circuit’s expansive interpretation of Rule
15(c) as allowing an amended habeas petition to relate back
to an original petition merely because both petitions related
to the “same trial, conviction, or sentence.” 545 U.S. at 662.
According to the Court, the Ninth Circuit’s interpretation
interfered with Habeas Rule 2(c), which required that habeas
petitioners plead with particularity. Id. at 661. Before
applying a Civil Rule in the habeas context, therefore, courts
must determine whether doing so is consistent with the
corresponding Habeas Rule, and if not, the extent to which
the two can be harmonized by applying the Civil Rule “less
broadly.” Id. at 657.

Second, any application of a Civil Rule must be
consistent with AEDPA, and AEDPA’s goal of “advanc[ing]
the finality of criminal convictions.” Id. at 662. In light of
this goal, the Supreme Court held that Rule 60, which
 ROSS V. WILLIAMS 37

provides for relief from final judgments or orders, applies
only narrowly in the habeas context so as to avoid
circumventing AEDPA’s general prohibition on second or
successive petitions. See Gonzalez, 545 U.S. at 531–33; see
also Pitchess v. Davis, 421 U.S. 482, 489–90 (1975)
(declining to apply Rule 60 when doing so would be
inconsistent with statutory exhaustion requirement).
Similarly, courts must be “mindful of Congress’ decision to
expedite collateral attacks by placing stringent time
restrictions on [them].” Mayle, 545 U.S. at 657 (citation
omitted). Given AEDPA’s concerns with “finality” and
“federalism,” it imposes “a tight time line, a one-year
limitation period” on habeas petitions. Id. at 662–63. Courts
may not apply a Civil Rule to a habeas proceeding in a way
that “swallow[s] AEDPA’s statute of limitation.” Id.
(quoting Felix v. Mayle, 379 F.3d 612, 619 (9th Cir. 2004)
(Tallman, J., concurring in part and dissenting in part), rev’d,
Mayle v. Felix, 545 U.S. 644 (2005)). Thus, if applying a
Civil Rule in the habeas context would give AEDPA’s
statute of limitations “slim significance,” id. at 662, courts
should apply the rule “less broadly” to account for AEDPA’s
policy concerns regarding finality, id. at 657.

IV

The majority makes a fundamental error in adopting an
interpretation of the Rule 10(c) and applying it in the habeas
context without even considering the Supreme Court’s
guidance for ensuring consistency with the Habeas Rules,
the unique nature of habeas, and AEDPA. Maj. at 15–17.
As a result, the majority’s interpretation conflicts with all
three.
38 ROSS V. WILLIAMS

A

First, the majority’s interpretation of Rule 10(c) is
inconsistent with the corresponding Habeas Rule and with
the proper administration of habeas proceedings. See Mayle,
545 U.S. at 661, Gonzalez, 545 U.S. at 531–33. The
corresponding rule here is Habeas Rule 2, which governs the
form of habeas petitions. See Rule 2, Rules Governing
Section 2254 Cases, advisory committee’s notes. Habeas
Rule 2 provides that “[t]he petition must: (1) specify all
grounds for relief available to the petitioner; (2) state all facts
supporting each ground; (3) state the relief requested; (4) be
printed, typewritten, or legibly handwritten; and (5) be
signed under penalty of perjury . . . .” Rule 2(c), Rules
Governing Section 2254 Cases. The petition must also
“substantially follow either the form appended to [the
Habeas Rules] or a form prescribed by a local district-court
rule.” Rule 2(d), Rules Governing Section 2254 Cases. The
majority’s expansive interpretation of Rule 10(c) is contrary
to Habeas Rule 2 in three material ways.

First, the majority’s interpretation of Rule 10(c) violates
the requirement imposed by Habeas Rule 2(c) that the
petition specify the grounds for relief and the facts
supporting each ground. The Habeas Rules’ specificity
requirement is one of the unique features of habeas
proceedings. See Mayle, 545 U.S. at 649. It is distinct from
the pleading requirements in the civil context, see Fed. R.
Civ. P. 8(a)(2), which requires that a complaint merely
provide “fair notice of what the plaintiff’s claim is and the
grounds upon which it rests,” see Mayle, 545 U.S. at 655
(citation omitted). As explained by the Supreme Court,
Habeas Rule 2(c) “is more demanding.” Id. “It provides that
the petition must ‘specify all the grounds for relief available
to the petitioner’ and ‘state the facts supporting each
 ROSS V. WILLIAMS 39

ground.’” Id. (quoting Rule 2(c), Rules Governing Section
2254 Cases).

This specificity requirement is necessary to assist courts
in fulfilling the Habeas Rules’ screening function. Under
Habeas Rule 4, courts must “promptly examine” each
petition, and dismiss a petition “[i]f it plainly appears from
the petition and any attached exhibits that the petitioner is
not entitled to relief in the district court.” Rule 4, Rules
Governing Section 2254 Cases. This reflects a
congressional command, see 28 U.S.C. §2243, which makes
it “the duty of the court to screen out frivolous applications
and eliminate the burden that would be placed on the
respondent by ordering an unnecessary answer,” Rule 4,
Rules Governing Section 2254 Cases, advisory committee’s
notes (citing Allen v. Perini, 424 F.2d 134, 141 (6th Cir.
1970)).

By departing from Habeas Rule 2(c)’s specificity
requirement, the majority’s interpretation of Rule 10(c)
frustrates this screening function. Under the majority’s take
on Rule 10(c), a petitioner need not state claims and facts
with specificity because the facts recited in any attached
document, whether it is a judicial opinion, a brief, or an
entire trial transcript, are deemed to be part of the petition so
long as the facts are arguably related to the petition’s claims
for relief. Maj. at 16–17. Because any exhibit can serve as
a source of facts, a court cannot perform its screening
function without searching through the attachments and
speculating as to which facts support which claims.
Moreover, the court’s screening obligations are vitiated by a
petitioner’s ability to bring an “amended” petition at any
time by relying on facts referenced in attached documents,
so long as they are arguably related to the claims in the
original petition. Therefore, the majority’s interpretation of
40 ROSS V. WILLIAMS

Rule 10(c) interferes with “the efficient and effective
administration” of habeas. Harris, 394 U.S. at 297.

The majority’s argument that it can ignore the conflict
between its reading of Rule 10(c) and Habeas Rule 2(c) on
the ground that “[Habeas] Rule 2(c) sets forth only a
pleading requirement” is unavailing. Maj. at 19. As the
majority acknowledges, the threshold question in this case is
whether the facts in an attachment can be considered part of
a habeas petition for purposes of relation back. Maj. at 15.
Habeas Rule 2 “describes the requirements of the actual
petition, including matters relating to its form, contents,
scope, and sufficiency.” Rule 2, Rules Governing Section
2254 Cases, advisory committee’s notes (emphasis added).
It is precisely because Habeas Rule 2 sets forth a “pleading
requirement,” Maj. at 19, that it controls to the extent a Civil
Rule, such as Rule 10(c), could expand the “contents” or
“scope” of a habeas petition beyond that contemplated by
Habeas Rule 2, see Rule 12, Rules Governing Section 2254
Cases (Civil Rules apply only “to the extent they are not
inconsistent” with Habeas Rules). The majority attempts to
gloss over the conflict between its application of Rule 10(c)
and Habeas Rule 2 by focusing instead on the “generous”
language of Rule 15(c)(1)(B), Maj. at 19, but this is merely
a straw man. Rule 15(c)(1)(B) does not address the contents
of the original habeas petition, and so it has no bearing on
the question whether the majority’s application of Rule 10(c)
to modify the contents of the habeas petition is inconsistent
with the requirements of Habeas Rule 2.

Second, the majority’s interpretation of Rule 10(c)
conflicts with Habeas Rule 2(d)’s requirement that
petitioners use a standardized form. The standardized form
requirement is a unique feature of habeas, distinguishing
habeas petitions from civil complaints. Compare Rule 2(d),
 ROSS V. WILLIAMS 41

Rules Governing Section 2254 Cases with Fed. R. Civ. P.
8(a). There are habeas-specific reasons for this rule.
Because habeas petitioners are frequently pro se prisoners,
see 1 Randy Hertz & James S. Liebman, Federal Habeas
Corpus Practice & Procedure § 12.2, at 852 (7th ed. 2018),
the requirement to use a standardized form was calculated to
improve the quality of the habeas petition and to assist
judges in identifying meritorious claims, see Rule 2, Rules
Governing Section 2254 Cases, advisory committee’s notes
(“Administrative convenience, of benefit to both the court
and the petitioner, results from the use of a prescribed
form.”). 3 Before this requirement, petitions “frequently
contained mere conclusions of law, unsupported by any
facts.” Id. “In addition, lengthy and often illegible petitions,
arranged in no logical order, were submitted to judges who
. . . had to spend hours deciphering them.” Id. The
standardized form in this case instructs petitioners that they
“may attach up to two extra pages stating additional grounds
and/or supporting facts.” Limiting petitions to “two extra
pages” of additional facts makes sense in light of the
concerns that motivated the Habeas Rules. See Rule 2, Rules
Governing Section 2254 Cases, advisory committee’s notes.

The majority’s interpretation of Rule 10(c) eliminates
the value of this requirement, because it requires courts to
deem attached materials part of the petition. Maj. at 14. The

3
The majority “note[s] that courts [must] ‘liberally construe[]’
documents filed pro se.” Maj. at 26 n.19. But the form habeas petitions
like the one Ross used were designed to assist prisoners filing pro se.
See Rule 2, Rules Governing Section 2254 Cases, advisory committee’s
notes. These petitions provide clear, step-by-step instructions in plain
English and give prisoners ample guidance for setting out their claims
and the facts supporting them. Given these substantial efforts to
accommodate pro se filers, there appears to be no basis for further
relaxing procedural requirements.
42 ROSS V. WILLIAMS

majority does not acknowledge that Ross failed to comply
with the form petition. See Maj. at 9, 23 n.15. Indeed, the
majority casts aside the form petition’s instructions and the
requirement that a petitioner “substantially follow” the form,
Rule 2(d), Rules Governing Section 2254 Cases, by
interpreting Rule 10(c) to allow petitioners to attach reams
of documents, all of which may contain facts that correspond
to the petition’s claims for relief, Maj. at 16–17. 4 In doing
so, the majority strikes a blow to “the efficient and effective
administration” of habeas, Harris, 394 U.S. at 297, and
returns judges to the task of ferreting through thousands of
pages of “irrational, prolix and redundant pleadings,” Rule
2, Rules Governing Section 2254 Cases, advisory
committee’s notes (quoting Passic, 98 F. Supp. at 1016).
This will result in the very thing the Habeas Rules—and
form petitions specifically—were designed to prevent: an
increased burden on the judicial system and an increase in
length, and corresponding decrease in quality, of habeas
petitions. See id.

Finally, the majority’s interpretation of Rule 10(c)
renders the Habeas Rules’ penalty-of-perjury requirement

4
The majority does not go so far as to argue that Ross “substantially
follow[ed]” the requirements of the form petition. Maj. at 23 n.15.
Instead, the majority argues that Ross might have been confused by the
instruction (on page 1) to “[a]ttach to th[e] petition a copy of all state
court written decisions regarding this conviction” and the separate
instruction (on page 3) that “[y]ou may attach up to two extra pages
stating additional grounds and/or supporting facts.” There is nothing
“apparent[ly] inconsisten[t]” with these instructions, Maj. at 23 n.15,
because no reasonable petitioner would think that attaching “all state
court written decisions” is the same as “stating additional grounds and/or
supporting facts,” particularly given that these instructions appear in
separate sections on separate pages of the form petition. In short, the
majority’s post-hoc rationalization as to why Ross did not follow the
instructions is unsupported by the record and belied by common sense.
 ROSS V. WILLIAMS 43

meaningless. A petitioner cannot reasonably be considered
to have verified the accuracy of factual statements included
in hundreds or thousands of pages of documents from a
range of sources. See Rule 2(c)(5), Rules Governing Section
2254 Cases. 5 By effectively relieving pro se petitioners of
the responsibility to verify the accuracy of the facts alleged
in a habeas petition, the majority undermines one of the
important means of improving the quality of habeas
pleadings and better enabling the courts to identify
meritorious claims. See Rule 2, Rules Governing Section
2254 Cases, advisory committee’s notes (“There is a penalty
for perjury, and this would seem the most appropriate way
to try to discourage it.”). Again, this penalty-of-perjury
requirement is a unique feature of habeas proceedings, and
is based on habeas-specific reasons. Cf. Fed. R. Civ. P. 11(a)
(“Unless a rule or statute specifically states otherwise, a
pleading need not be verified or accompanied by an
affidavit.”).

The majority does not attempt to address the
inconsistency of its interpretation and application of Rule
10(c) with Habeas Rule 2. Instead, the majority directs a
court considering a late petition to allow (or solicit) “briefing
to better explain the relationship between the amended
petition and the original one,” and to allow the petitioner the
opportunity to identify “the particular facts from an
attachment that support each claim for relief.” Maj. at 24–
25. This approach tacitly concedes there may be no obvious
relationship between the original petition and the new one.
Indeed, in this very case, where the exhibit is a brief, six-

5
This requirement reflects a congressional command. See 28 U.S.C.
§ 2242 (“Application for a writ of habeas corpus shall be in writing
signed and verified by the person for whose relief it is intended or by
someone acting in his behalf.”).
44 ROSS V. WILLIAMS

page ruling, the majority nevertheless declines to “undertake
the full comparison necessary to determine which claims in
the amended petition relate back.” Maj. at 27.

In sum, the majority’s interpretation of Rule 10(c)
conflicts with Habeas Rule 2 and does so in a way that
frustrates the “the efficient and effective administration” of
habeas. Harris, 394 U.S. at 297. It should be rejected on
this ground alone.

B

Second, the majority’s interpretation of Rule 10(c) is
inconsistent with AEDPA. As Mayle explained, we may not
apply a Civil Rule in a manner that would “swallow
AEDPA’s statute of limitation,” 545 U.S. at 662 (citation
omitted), but rather must respect Congress’s decision to put
“stringent time restrictions” on collateral attacks, id. at 657.

The majority’s interpretation and application of Rule
10(c) conflicts with these instructions. If each attachment to
a habeas petition can serve as a wellspring of facts to support
new claims for relief in a subsequent petition, petitioners will
lay the groundwork for a host of claims that will relate back
merely by pleading broad, malleable claims for relief and
then following the form’s instructions to “[a]ttach to this
petition a copy of all state court written decisions regarding
this conviction.” Because a petitioner apparently needs only
a colorable argument that facts in an attachment relate to a
broad claim in the original petition, any reasonable petitioner
will assert broad claims for relief and attach reams of
documents to preserve a full panoply of claims that can be
revived after AEDPA’s limitations period runs. Thus, under
the majority’s reasoning, a petitioner’s amended habeas
petition will rarely be barred by AEDPA’s statute of
limitations. See Maj. at 15–17.
 ROSS V. WILLIAMS 45

The majority does not address the inconsistency between
its interpretation of Rule 10(c) and AEDPA. As the majority
implicitly acknowledges, an attorney can sidestep AEDPA’s
statute of limitations merely by explaining how facts buried
in hundreds of pages of exhibits relate to the claims for relief
in the original petition and then argue that the entirely new
claims in the amended petition relate to those facts. Maj.
at 15–17. The majority fails to explain how this result can
be squared with Mayle’s warning that “it would be
anomalous” to apply an inappropriately broad reading of a
Civil Rule in the habeas context so as to avoid AEDPA’s
stringent time restrictions. 545 U.S. at 663. Thus, the
majority’s reading of Rule 10(c) “swallow[s] AEDPA’s
statute of limitation,” Mayle, 545 U.S. at 662 (citation
omitted), in direct contradiction to the Supreme Court’s
specific direction in Mayle. In applying Rule 10(c) in a way
that gives AEDPA’s statute of limitations “slim
significance,” id. at 662, the majority disregards “AEDPA’s
‘finality’ and ‘federalism’ concerns,” id. at 663.

C

Rather than tailor its interpretation of Rule 10(c) to be
consistent with the Habeas Rules and AEDPA, as required
by the Supreme Court, the majority attempts to justify its
rejection of this guidance on the ground that the Supreme
Court cited and applied Rule 10(c) in Dye, 546 U.S. at 4.
Maj. at 14. But Dye does not support the majority. To the
contrary, it demonstrates how Rule 10(c) should be
interpreted narrowly to avoid conflicts in the habeas context.
See Dye, 546 U.S. at 4.

In Dye v. Hofbauer, the Sixth Circuit dismissed a state
prisoner’s habeas petition on the ground that the petitioner
failed to exhaust his claim of prosecutorial misconduct in
state court. 111 F. App’x 363, 364 (6th Cir. 2004), rev’d,
46 ROSS V. WILLIAMS

546 U.S. 1 (2005). The Sixth Circuit reasoned that the
petitioner’s federal habeas petition made only a vague
reference to a due process violation; therefore, even if the
petitioner had presented an identical claim in his state
petition, he had not “fairly presented” a federal
constitutional claim to the state court. Id. The Supreme
Court reversed. Citing Rule 10(c) and Rule 81(a)(2) (which
then provided that the Civil Rules apply to habeas
proceedings only “to the extent” consistent with the Habeas
Rules and historical practice), the Court held that the
petitioner had adequately exhausted his claims because the
“petition made clear and repeated references to an appended
[state-court] brief, which presented [the petitioner’s] federal
claim with more than sufficient particularity.” Dye, 546 U.S.
at 4. In other words, rather than rely on Rule 10(c)’s broad
language that a document attached to a pleading “is a part of
the pleading for all purposes,” the Court held that only when
a habeas petition “ma[kes] clear . . . reference[]” to an
attachment, may a court consider the attachment under Rule
10(c) to clarify the allegations in the petition. Id.

Contrary to the majority’s reading, Maj. at 14, by
focusing on the petitioner’s “clear and repeated references”
to the attachment, Dye implicitly rejected the majority’s
interpretation of Rule 10(c). Dye’s narrow application of
Rule 10(c) is consistent with the Habeas Rules, the unique
nature of habeas proceedings, and AEDPA. The
incorporation by reference of an attachment, which itself
was sufficiently particular, is consistent with the specificity
requirements of Habeas Rule 2(c). See Rule 2(c), Rules
Governing Section 2254 Cases. A targeted incorporation of
specific facts allows the petitioner to comply with the
Habeas Rules’ penalty-of-perjury requirement, see Rule
2(c)(5), Rules Governing Section 2254 Cases, because the
petitioner can rationally identify the specific facts verified to
 ROSS V. WILLIAMS 47

be true. And Dye’s narrow interpretation of Rule 10(c) is
consistent with AEDPA’s statute of limitations, because the
incorporation of targeted facts in a specified exhibit does not
give a petitioner an unbounded opportunity to later raise a
wide range of other claims after AEDPA’s one-year
limitations period has run. Cf. Mayle, 545 U.S. at 662.

V

Applying Rule 10(c) as it was applied in Dye, and in a
manner consistent with the Supreme Court’s framework, the
analysis of Ross’s challenge is straightforward. Ross’s
original petition does not make “clear . . . reference[]” to the
Nevada Supreme Court ruling attached to his petition. Ross
knew how to incorporate an appended document by
reference; he did exactly that in his state petition. Because
he did not reference the Nevada Supreme Court ruling in his
federal habeas petition, it was not incorporated into his
petition under Rule 10(c) and Dye, 546 U.S. at 4. This means
that his original petition failed to set out any “conduct,
transaction, or occurrence.” Fed. R. Civ. P. 15(c)(1)(B). In
the absence of any “congeries of facts,” Mayle, 545 U.S.
at 661, in the original petition, the amended petition could
not relate back to a core of operative facts in the original
petition. As a result, Ross’s amended petition does not relate
back to the original petition under Rule 15(c), and the claims
in the amended petition are time-barred. 6

6
Because the proper analysis of Rule 10(c) resolves this case, there
is no need to analyze whether Rule 15(c) applies to the amended petition.
Nevertheless, any interpretation and application of that rule in the habeas
context must also meet the Supreme Court’s requirement that an
application of the Civil Rules be consistent with the Habeas Rules,
habeas procedures, and AEDPA. The majority’s broad interpretation of
Rule 15(c) as giving courts expansive authority to find “[s]ufficient
48 ROSS V. WILLIAMS

***

By applying Rule 10(c) to a habeas petition without
giving due consideration to the habeas context, the majority
violates the Supreme Court’s direction for applying the Civil
Rules in this context and creates an approach inconsistent
with the Habeas Rules and with Congress’s intention to
impose strict time limits on habeas petitions. Further, the
majority turns its back on the Supreme Court’s guidance for
applying Rule 10(c) in the habeas context, which makes
clear that an exhibit is incorporated into a habeas petition
only when the petition makes “clear . . . reference[] to” the
exhibit. Dye, 546 U.S. at 4. The majority’s approach is
squarely at odds with AEDPA and the Habeas Rules, and it
places a substantial burden on the judicial system.
Therefore, I dissent.

correspondence” between a claim in the amended petition and a
“corresponding factual episode” in the original petition, Maj. at 15–16,
and the majority’s “emphasi[s] that the correspondence need not be as
precise” as the example in its opinion, Maj. at 17 n.6, is mistaken, cf.
Mayle, 545 U.S. at 661 (rejecting Ninth Circuit’s “boundless” approach
to Rule 15(c) because “[a] miscellany of claims for relief could be raised
later rather than sooner and relate back”). Similarly, the majority’s
reliance on Dean v. United States, 278 F.3d 1218, 1222 (11th Cir. 2002)
(per curiam), to suggest that an amended petition might relate back to an
original petition even if the original petition “provide[s] no factual
support at all” is misplaced. Maj. at 19–20 & n.9. This is because Mayle
(which postdates Dean) rejected such a boundless application of Rule
15(c)(1)(B) by holding that “separate congeries of facts supporting the
grounds for relief . . . delineate an ‘occurrence.’” 545 U.S. at 661
(emphasis added). That is, there is no “conduct, transaction, or
occurrence” if there are no “congeries of facts.”