United States District Court, D. Nevada
KEITH G. SMITH, Petitioner,
ROBERT LeGRAND, et al., Respondents.
MIRANDA M. DU, UNITED STATES DISTRICT JUDGE.
the Court is the amended petition for writ of habeas corpus.
(ECF No. 15.) Respondents move to dismiss
(“Motion”). (ECF No. 29.) The Court has reviewed
petitioner's opposition (ECF No. 44) and respondents'
reply (ECF No. 49). The Court grants the Motion in part
because some grounds are not timely and some grounds are not
argue that parts of Ground 6 of the amended petition are
untimely. Petitioner filed his initial, proper-person
petition on time. He filed his counseled amended petition
after expiration of the one-year period of limitation of 28
U.S.C. § 2244(d). The grounds of the amended petition
are timely if they relate back to the initial petition. Under
Rule 15(c), a claim in an amended petition relates back to a
claim in a timely-filed petition if the claim in the amended
petition “arose out of the conduct, transaction, or
occurrence set out” in the previous petition.
Fed.R.Civ.P. 15(c)(1)(B). As the Supreme Court explained in
Mayle v. Felix, 545 U.S. 644 (2005), Rule 15(c)
permits relation back only when new claims “arise from
the same core facts as the timely filed claims, and not when
the new claims depend upon events separate in both time and
type from the originally raised episodes.”
Mayle, 545 U.S. at 657 (internal quotation marks
omitted). The question, then, is whether Ground 6 of
Irive's amended petition shares “a common core of
operative facts” with a timely-filed claim in his
6(a) is a claim that trial counsel provided ineffective
assistance because trial counsel failed to make the
recordings of petitioner's statements to police, and the
transcripts of those recordings, part of the record on
appeal. Petitioner argues that ground 6(a) relates back to
grounds 2 and 6 of the original petition. The Court
disagrees. Ground 2 of the original petition is a claim that
appellate counsel failed to make the recordings and
the transcripts part of the record. (ECF No. 1-1 at
35-37.) This ground differs with Ground 6(a) in
the key operative fact of which counsel failed to act. Ground
6 of the original petition is a claim that the trial court
erred in refusing to play the recordings for the jury. This
ground differs with Ground 6(a) in the key operative facts of
what the error was, who committed the error, and when the
error occurred. Ground 6(a) does not relate back to the
initial petition. See Schneider v. McDaniel, 674
F.3d 1144, 1150-1152 (9th Cir. 2012).
6(b) is a claim that trial counsel  failed to have
petitioner testify in his own defense,  failed to consult
with petitioner regarding his right to testify, and 
failed to secure a waiver of that right. Petitioner did not
break Ground 6(b) into three separate parts. Respondents have
done that, with the numbers that the Court has placed in
brackets, and petitioner has objected to respondents
re-writing his petition. Respondents then argue that the
claim that trial counsel failed to consult with petitioner
about his right to testify does not relate back to any claim
in the initial petition. The Court disagrees. Ground 15 of
the initial petition is a claim that trial counsel failed to
have petitioner testify. (ECF No. 1-2 at 33-37.) It is true
that petitioner does not allege in that ground that counsel
failed to consult with petitioner about his right to testify,
but the Court does not see that as an operative fact.
Consultation, or the lack of consultation, is inherent in any
ineffective-assistance claim regarding a person's right
to testify. Ground 6(b) relates back to the initial petition.
6(c) is a claim that trial counsel failed to seek testing of
a blood sample of the victim. Respondents argue that although
petitioner did raise in the initial petition a claim that
trial counsel failed to seek testing of the blood sample, the
reasons why petitioner suffered prejudice have changed. In
ground 18 of the initial petition, petitioner argues,
“If the alleged victim was more than double the legal
limit to drive a car based upon her blood alcohol content
combined with her abuse of methamphetamine, the jury would
have recognized her impaired perceptions.” (ECF No. 1-3
at 11.) In Ground 6(c) of the amended petition, petitioner
argues, “Methamphetamine is a stimulant, and would have
counteracted the effects of alcohol.” (ECF No. 15 at
30.) The operative facts in both grounds are the same-counsel
failed to seek testing of the blood sample of the victim.
Relation back is proper even if the consequences argued from
those facts are different. See Felix, 545 U.S. at
664 n.7. Ground 6(c) relates back to the initial petition.
6(d) is a claim that counsel failed to obtain the
victim's criminal record. In ground 1 of the initial
petition, petitioner alleged:
It was also determined, and never investigated, that the
victim had a criminal history for drug convictions, and more
importantly perjury. These facts were never investigated by
Mr. Avants [trial counsel].
(ECF No. 1-1 at 34.) Ground 6(d) might be more specific than
what petitioner alleged in the initial petition, but it still
shares the common operative fact that trial counsel did not
investigate the victim's criminal ...