*1 punish- of such imposition affirm the To the condition finds nonetheless majority history when in our a time recalls ments with “coupled it was acceptable order were the and stocks pillories [Op. at provisions.” socially useful more runs power use of such To sanction day. says majority way, the Put another 606] doing so we that risk very great “a stand-alone considering not it is that crimi- for the disrespect of “a sense instill humiliate, but soley to intended condition Ballenger, 436 system” itself. justice nal conditions.” set comprehensive rather (Blackburn, dissenting). J. at 796 S.E.2d to no majority cites But the 606] [Op. Act Sentencing Reform in the provision and remand sentence I vacate would that condi indicating case law to no instructing district re-sentencing, re be should release supervised shaming tions humiliation public that court individually, or jus- a set system viewed in our place proper no has be hu ceases to somehow humiliation tice. punishment. with combined when miliation Eyler, 67 States United Cf . Cir.1995) (“Any 1386, 1393-94 each meet must
discretionary condition in [the set forth conditions three broad add (emphasis Act].” Reform
Sentencing seems be
ed)). majority’s position a sentence condition FELIX, if one Jacoby even Petitioner- Lee Act, it Sentencing manifestly violates Appellant, provision coupling cured can such When other, ones. proper MAYLE, Warden, A. Deneice and no forward put proposition novel Respondent-Appellee. it, there is support is cited law case day, end of At the usually a reason. No. 02-16614. a condition evaluating charged with we are Appeals, Court humiliate, and is to purpose primary whose Circuit. Ninth upheld. not be simply should condition Nov. 2003. and Submitted Argued the sandwich I believe Although Sentencing 2004. April violates condition Withdrawn board Submission reverse and we should Act Reform July 2004. Resubmitted reason, I believe also for that Aug. 2004. Filed A fan- policy. bad simply this is its society is how of a civilized measure between space behave
institutions do and power to may have
what it component shaming do. it should
what fails that test. case the sentence person, another one shames
‘When shame, to object of degrade
goal is being, to chain him lower
place him.”5
dehumanize Markel, supra note 1 at *2 Porter,
David M. Assistant Federal De- fender, Sacramento, CA, for petitioner- appellant. Chan,
Mathew Deputy Attorney Gener- al, Sacramento, CA, for the respondent- appellee. CANBY, JR.,
Before: FLETCHER, W. TALLMAN, Judges. Circuit BACKGROUND FACTUAL Judge: CANBY, Circuit first convicted was Jaco- prisoner state in which This robbery degree and second degree murder writ of a federal Felix seeks by Lee appeal to On state court. in California *3 conviction, state his to overturn corpus that argued Appeal, of Court California federal question of important an presents of into evidence the admission cir has divided that procedure civil witness key prosecution aof statements a habeas when is this: question The cuits. to con- right Amendment his Sixth violated conviction a state challenging petitioner The him. against the witnesses front to include petition his amends federal judgment. affirmed Appeal of Court relate amendment claim, does subsequent- new Court Supreme California The and petition his filing of and date of Review Petition back Felix’s ly denied of the August limitation on one-year final avoid became conviction thus his state Penalty Death Effective 12,1997. and Antiterrorism 2244(d)(1)? § (“AEDPA”), 28 U.S.C.
Act in federal filed Felix May On upon the depends turn in question That of for writ petition proa se court Pro Rule of Civil Federal of interpretation arguments the same raising corpus that an 15(c)(2), provides which appeal. his cedure in state raised that were of the to the date back limitations one-year of statute amendment August or de claim expired “the when relief original pleading for habeas filed, Felix pleading January amended in the 1998. On asserted fense that petition counsel, transaction, an amended through of out arose claim Clause the Confrontation included original ... set forth occurrence an original asserted in Circuit joinWe Seventh pleading.” claim, alleged which additional claim new prisoner’s concluding that pro- to due right court violated state or oc transaction same of the out arises right Amendment Fifth and his cess because as his currence into admitting against self-incrimination issue in occurrence transaction or involuntary statements allegedly evidence Ellzey conviction. trial and state police inter- during a made that Felix had (7th Cir. States, rec- accepted the court The district view. under back 2003).1 thus relates claim judge finding magistrate ommended reverse 15(c)(2). accordingly Rule did claim confession the coerced holding Felix’s court ruling the district Rule back under relate time- to be confession coerced claim core facts” “same from the arise did not barred. claim. Clause Confrontation as the confes- the coerced held accordingly court the district argues Felix also by AEDPA’s time-barred claim to be sion dismissing his Confrontation erred limitation. one-year find no merits. We on the Clause appeal notice of timely dis- filed a accordingly affirm error, we a certificate court issued the district the Confrontation dismissal trict confession coerced for the appealability claim. to cases reasoning applies equally their but later from Ellzey discussed and cases challenge convictions state Ellzey arose like Felix’s conflict other circuits § convic- challenges federal 28 U.S.C. under the context § U.S.C. under 28 sentences tions or and Confrontation Clause claims. We dreds of individual occurrences. The Sev- jurisdiction § have under 28 U.S.C. 2253 enth explained Circuit that in such ap- an and we proach: review district court’s decision Murphy,
de novo. See Clark v. step trial, [e]ach and each legal Cir.2003). 1062, 1067(9th argument, becomes a transac- tion or occurrence. Yet this is not how DISCUSSION phrase or oc- currence” practice. is used civil That A phrase up sums the “same transaction” 15(c) applies to federal habeas (and approach to the preclusion law of *4 Cambra, corpus Anthony cases. See v. joinder): thus to compulsory all legal (9th 568, Cir.2000). 236 F.3d That issues and claims for relief arising out of provides, among things: (and single may transaction often amendment of a pleading [a]n must) 15(c) together, be raised and Rule back to the date of the original pleading specifies that anything that would be when ... the claim or defense in the barred, if now, not brought may be add- pleading amended arose out of the con- litigated. ed and duct, transaction, or occurrence set forth Ellzey, 324 F.3d at agree 526. We attempted or origi- be set forth Ellzey proper “conduct, that the transac- pleading. nal tion, or occurrence” in a habeas context is 15(c)(2). Fed.R.Civ.P. In other civ the trial and conviction under attack. litigation, il required we have relation-back 15(c)(2) The language of Rule supports arising new claims from the same “con our provides conclusion. It for the rela- duct, transaction, or occurrence” as the tion back of a “claim” by added amend- claim in the original complaint, even when ment if the new claim arises from the same the new claims are based on a different transaction or occurrence set legal theory of which there warning was no forth in original pleading. A new original pleading. See Kern Oil & “claim” nearly always will legal rest on a Co., Co. v. Tenneco Oil 840 F.2d Ref. theory, and often on a subset of facts (9th Cir.1988). fail to why We see larger within the transaction or occur- application literal of Rule should not rence, that differs from underlying those apply to corpus habeas proceedings. original asserted pleading. The Confrontation Clause claim asserted That is the reason that an amendment by Felix in federal necessary. becomes But if such differ- arose from the trial that ended with his ences are sufficient to prevent relation conviction in state court. His coerced con- 15(c)(2), back under Rule that provision of fession claim arises from the same transac- the Rule will be virtually rendered mean- tion—his trial and conviction in state court. ingless in the habeas context. Both claims assert that the conviction was tainted unconstitutional evidence accordingly intro- disagree, respectfully, We duced at his trial. fact that the claims with the decisions of several circuits that they differ does not mean that deny arise from relation back under Rule different It unduly occurrences. strains when a new claim theory rests on a “conduct, meaning transaction, usual facts within trial not raised in the origi- or occurrence” to regard a criminal trial nal petition. habeas See United States v. conviction as a series of perhaps (D.C.Cir.2002); hun- 283 F.3d Fed.R.Civ.P. has filed.3 See States, pleading been 217 F.3d v. United
Davenport 15(a); at 527. Cir.2000); Ellzey, v. 324 F.3d (11th United States 1344-45 317-18(4th Pittman, Cir. 209 F.3d that, if here even argues The State Duffus, 174 F.3d 2000); term, Fe- given usual definition (3rd Cir.1999); United States 337-38 arise from the same claims do not lix’s two 451, 457 Cir. or occurrence” with- 1999). these cases in distinguished 15(c)(2). The State of Rule meaning neither en at but Anthony, 236 F.3d confession claim that the coerced argues we rejected their rule because nor dorsed interrogation of Felix out of an con- arises “determine here unnecessary to found 28, 1993,while by police on October ducted 15(c)(2)’s] applica scope [Rule the full claim is based on the Confrontation petitions.” of habeas tion to amendments voluntarily made a witness statements distinguish Today we cannot Id. at 576. argu- later. This than three months more reject their rule in cases, we and so these however, ment, ignores the nature Fe- Ellzey. that of favor of bring- Felix is not challenge. lix’s expressed in some concerns One of the damages recover ing a civil action to here is dissent of these cases *5 police exerted alleged coercion the “conduct, transaction, or interpreting confession, and they the time secured usual, less restrictive occurrence” claim certainly no based the asserts the effectiveness manner would erode per- another by made voluntary statement one-year statute of limitations. challenging He is the son at another time. AEDPA, See, F.3d at 388. e.g., subject petition-the a habeas cus- usual however, the requires still results from his conviction and tody that (with one-year period filed within the to be trial. His coerced confession here). Giving ef- exceptions not relevant claim assert Confrontation 15(c)(2) therefore, not, does fect to Rule by the introduc- Constitution was violated one-year period.2 On the nullify AEDPA’s and the witness’s tion of his confession hand, relation back precluding Except for the use statement at his trial. Rule effectively nullifies claims new trial, at his of these statements can 15(c)(2) We de- proceedings. in habeas claim. therefore re- state no habeas We 15(c)(2) way in a Rule cline to read that we should ject the State’s contention ordinary meaning of its contravenes trial to events of the find beyond look meaningless in the it language and renders or occurrence” As the Seventh Circuit habeas context. subject of Felix’s claims. that is the out, can of Rule 15 be pointed abuses reject contention also the State’s We sub- by the district court under controlled claims to relate permitting Felix’s (a), requires leave of section which purpose Rule responsive back will frustrate after file an amendment petition, and the on the asserting "obliterates entered unamended that our decision In limitation,” year certainly prisoner statute of be unable AEDPA’s one will almost Judge undervalues the strict Tallman’s dissent requirements for a the strict second meet original federal habeas requirement that the claim. petition to the additional address petition be filed that time. The dissent within 2244(b)(2). § 28 U.S.C. very account of the also to take consider- fails prisoner to file all for a able incentive state however, freely general, shall be "leave original petition or his or her claims justice requires.” given when so Fed.R.Civ.P. possible. as as soon thereafter If amendment 15(a). judgment may prisoner delays, final be 15(c)(2) give non-moving notice to the contends that the state court violated his party might that such an amendment right to confront by admitting witnesses that, contemplated. It is true in Anthony, portions into evidence of a in- 576-77, we held that the given by key State terview prosecutorial wit- clearly sought ness, had notice claims to be though even any witness denied only added amendment. But that was memory of the interview at trial. The way rejecting argument one the State’s circumstances strongly indicated that the in Anthony beyond that notice identity of witness’s loss of memory feigned. was Fe- “conduct, transaction, or occurrence” was argues lix right that his to cross-examine required. rejected long ago argu- We was effectively nullified.
ment
relation back under Rule
Felix is entitled to relief from
required
warning”
a “fair
of the
state court conviction only if the
beyond
amendment
state
warning
inherent
in,
ruling
contrary to,
“was
or
required by,
involved
language
an
Oil,
of,
unreasonable application
clearly
rule. Kern
es
U.S. TALLMAN, Judge, concurring Circuit (1965), Supreme Court in which the dissenting part: part a statement prior held that admission trial, who, claimed a Fifth at
a witness
I
respond, violated
right not to
Amendment
petition-
that the
Today the court holds
Douglas is distin-
Amendment.
the Sixth
untimely-raised
newly-minted and
er’s
however,
was
there
no
guishable,
by the
confession claim is saved
coerced
who
the witness
had
way to cross-examine
of Fed.R.Civ.P.
“relation back” doctrine
sub-
the Fifth Amendment
invoked
from the same
because it “arises
Owens,
inas
ject.
present
In the
trial and conviction”
transaction' —Ms
the wit-
free
cross-examine
Felix was
timely-filed Confrontation
petitioner’s
bias,
as the witness’
on “such matters
ness
“conduct, trans-
By defining
claim.
attentiveness,
poor
care and
his lack of
action,
broadly
any
so
or occurrence”
(what
prime
is often
and even
eyesight,
motions, the
stemming
pre-trial
from
...)
cross-examination
objective of
trial,
sentencing relates back to time-
or
memory.”
a bad
very fact
that' he has
petition, the court obliter-
ly-filed habeas
Owens,
108 S.Ct.
484 U.S.
year
statute of limita-
ates
one
contrary
was not
ruling
The state
tion.
of, ei-
to,
application
nor an unreasonable
nor did it
circuits to consid
Douglas,
majority
involve
of those
ther Owens
of Rule
an unreasonable determination
er the intersection
Con
affirm the district
of limitation have more
gress’
therefore
strict statute
facts. We
claim.6
narrowly interpreted
of this
transac
court’s dismissal
*7
tion,
to mean that in order
or occurrence”
CONCLUSION
back,
untimely claim must
to relate
“the
set of
as
have arisen from the ‘same
facts’
Felix’s coerced confession
claim,
separate
timely filed
not from
of Civil Proce-
under Federal Rule
back
separate
occurrence
conduct or
‘both
timely original
to his
dure
”
type.’
Davenport
v. United
the same
time
it
out of
arose
(11th
States,
1341,
217 F.3d
1344
Cir.
set forth
or occurrence
2000).1 I would
this better reasoned
his state trial
follow
original pleading-namely,
pays proper respect
rule because
reverse
conviction. We
by AEDPA.
limitation
established
period
claim and remand
court’s dismissal of that
Hicks,
United States v.
283 F.3d
rejection
1. Accord
6. Our
of Felix's Confrontation
Pittman,
(D.C.Cir.2002);
makes it unneces-
Clause claim on the
United States v.
merits
389
sary
(4th Cir.2000);
State’s alternative
for us to
address
209 F.3d
318
United
seeking
the benefit
(3d
contention that Felix is
Duffus,
Cir.
174 F.3d
337
applied retroac-
a new rule
not be
that could
1999);
States v.
Lane,
Teague
tively
to his case.
451, 457 (8th Cir.1999).
1060,
court that the petitioner’s Confrontation Rejecting this interpretation Clause claim fails on the merits. “conduct, transaction, or occurrence” as too expansive, our sister circuits have ob-
II served: The “relation back” easily doctrine is not
applied to
corpus petitions.
habeas
Yet
Habe-
holding
views “occurrence” at
corpus litigation is,
definition,
as
a col
too high a
of generality.
level
The fact
lateral
finality
attack on the
of a criminal
that amended claims arise from the
judgment following
appeal
direct
or a con
same trial and sentencing proceeding scious decision
forgo
direct attack. Al
the original motion does not mean that
though we have held that
applies
Rule 15
the amended claims relate
pur-
back for
petitions,
Cambra,
habeas
Anthony v.
15(c).
poses of Rule
If we were to craft
Cir.2000),
236 F.3d
we have
rule,
such a
it would mean that amend-
never considered the limits of
such
how
ments ... would almost invariably be
amendments interact with the limitation
allowed even after the statute of limita-
period.
so,
doing
In
keep
we must
in mind
tions
expired,
had
because most [habeas]
enacting strict time restrictions on
claims arise from a criminal defendant’s
filing
petitions, Congress
underlying conviction and sentence.
obviously
expedite
intended to
process
Such a broad view of “relation back”
ing of collateral attacks.
See United
would undermine the limitations period
(D.C.Cir.
States v.
set
Congress in the AEDPA.
2002).
Pittman,
In this
there have
been
already
several rounds of criminal and civil collat-
The better rule is that
enunciated
eral review at all levels of the California
Eleventh Circuit in Davenport:
trial
appellate
court system, which
spanned
years.
three
The petitioner time-
back,
order
relate
untimely
ly
filed his
pro
se habeas
claim must have arisen
from
“same
8, 1998,
in federal
May
court on
within the
timely
claim,
set of facts” as the
filed
limitation period. Although well
aware
from
conduct
separate
oc-
the facts supporting his coerced confession
type.”
currence
“both time and
claim when he
original petition,
filed this
217 F.3d at
point
1344. The
whole
he waited nine months to amend it and add
enacting AEDPA was to eliminate drawn-
*8
the new claim. Petitioner is
enti-
certainly
out and unlimited collateral attacks on
tled to continue testing
validity
the
of his
judgments.
criminal
See
otherwise final state first-degree murder
389; Pittman,
eral
the
circuits.
by our sister
Ill
suffi-
lack of
relied
the
Eighth Circuit
did
that an amendment
notice to find
cient
fact that
the
over
glosses
court
not relate back:
doctrine in
back”
“relation
applying the
circumstances,
original petition
alleged
complaint
these
Craycraft’s original
to
fair notice
give
distinctly
utterly failed
representation
of
deficiencies
claim. The
petitioner’s new
in
deficiency alleged
of the
State
separate from
Refining
&
Co.
on Kern Oil
ap-
relies
to file an
court
Failing
his amendments.
Co.,
Cir.
in both
Tenneco Oil
occurrence
a
peal is
civil action
1988),
typical
a
involved
a
pursue
which
a
type
from failure
time
fraud, for the
object
of contract and
for breach
or failure to
departure
downward
How
is irrelevant.
that notice
can-
proposition
at issue. We
type
drugs
of
to the
Cambra,
exchange testimony peti- tainted the trial).3
tioner’s
V While an amendment clarify offered to UNITED America, STATES or amplify already the facts alleged Plaintiff-Appellee, back, of a support timely may claim relate an legal amendment introduces a new SCHIFF; Cynthia Neun; Irwin A. Law theory based on facts different from those Cohen, Larry rence N. aka D.C. No. underlying timely may not. See Cohen, individually, doing and all 283 F.3d at principles 388. “These www.livetaxfree.com, Books, business as Freedom are faithful both to underlying pur- www.pay poses of Rule and to the concerns noincometa www.ischiff.com, x.com and about Defen drawn-out and unlimited collateral dants-Appellants. attacks on ... criminal judgments evinced passage They of AEPDA. ensure No. 03-16319. relation back will only be allowed Appeals, United States Court of where the original provides motion ade- Ninth Circuit. quate notice of [petitioner’s] claims and proposed amendment would neither Argued and Submitted Feb. 2004. change the fundamental nature of those Filed Aug. nor prejudice claims defense the[State’s] by requiring it to prepare its case anew.”
Id. at 389.
Davenport,
(claim
(newly
fus,
See also
at