United States District Court, D. Nevada
C. JONES, UNITED STATES DISTRICT JUDGE
pro se habeas matter under 28 U.S.C. § 2254 is
before the court on respondents' motion to dismiss
petitioner Oscar Uribe's amended petition (ECF No. 24).
Uribe opposed (ECF No. 25), and respondents replied (ECF No.
Procedural History and Background
October 25, 2010, Uribe pleaded guilty to second-degree
murder with use of a firearm (exhibit 28). The state
district court sentenced him to a term of 10 to 25 years with
a consecutive term of 60 to 150 months for the deadly weapon
enhancement. Exh. 37. The judgment of conviction was filed on
December 17, 2010. Id.
Nevada Supreme Court affirmed Uribe's conviction on July
15, 2011, and remittitur issued on August 11, 2011. Exhs. 59,
state district court conducted an evidentiary hearing on
Uribe's counseled, state postconviction petition and
subsequently denied the petition. Exhs. 64, 79, 65. The
Nevada Supreme Court affirmed the denial of the petition on
November 12, 2014, and remittitur issued on December 8, 2014.
Exhs. 75, 76.
dispatched his federal habeas petition for filing on or about
April 1, 2015 (ECF No. 7). He filed an amended petition on
May 22, 2017 (ECF No. 23). Respondents have filed a motion to
dismiss some grounds in the petition as untimely or
unexhausted (ECF No. 24).
Legal Standards & Analysis Relation Back
argue that grounds 1.2, 1.3, 2, 3, and 5 of the amended
petition do not relate back to a timely-filed petition and
should thus be dismissed as untimely (ECF No. 24, pp. 5-8). A
new claim in an amended petition that is filed after the
expiration of the Antiterrorism and Effective Death Penalty
Act ("AEDPA") one-year limitation period will be
timely only if the new claim relates back to a claim in a
timely-filed pleading under Rule 15(c) of the Federal Rules
of Civil Procedure, on the basis that the claim arises out of
"the same conduct, transaction or occurrence" as a
claim in the timely pleading. Mayle v. Felix, 545
U.S. 644 (2005). In Mayle, the United States Supreme
Court held that habeas claims in an amended petition do not
arise out of "the same conduct, transaction or
occurrence" as claims in the original petition merely
because the claims all challenge the same trial, conviction
or sentence. 545 U.S. at 655-64. Rather, under the
construction of the rule approved in Mayle, Rule
15(c) permits relation back of habeas claims asserted in an
amended petition "only when the claims added by
amendment 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." 545 U.S. at 657. In this regard, the
reviewing court looks to "the existence of a common
'core of operative facts' uniting the original and
newly asserted claims." A claim that merely adds "a
new legal theory tied to the same operative facts as those
initially alleged" will relate back and be timely. 545
U.S. at 659 and n.5; Ha Van Nguyen v. Curry, 736
F.3d 1287, 1297 (9th Cir. 2013).
Uribe timely filed his original petition. The AEDPA one-year
limitation period expired about October 30, 2015. This court
granted Uribe's motion for leave to file an amended
petition; however, the claims in the amended petition still
must relate back to his timely, original federal pro
se petition in order to be deemed timely. 28 U.S.C.
§ 2244(d); Lott v. Mueller, 304 F.3d 918, 920
(9th Cir. 2002).
1.2 and 3
alleges ineffective assistance of plea counsel in violation
of Uribe's Sixth Amendment rights. He asserts that
counsel failed to explain the proper standard of proof for a
criminal conviction before advising him to plead guilty to
second-degree murder with use of a deadly weapon and accept a
sentence of 10 to 25 years in prison with the weapon
enhancement free to argue (ECF No. 23, p. 4; see
also exh. 77, p. 11)).
ground 3 Uribe contends that he did not knowingly and
voluntarily plead guilty in violation of his Fifth, Sixth and
Fourteenth Amendment rights (ECF No. 23, p. 4, 7-8). He
states that counsel failed to adequately review the discovery
with him, including the testimony of some witnesses, so that
he could have understood the possible defenses, especially
that he acted in self-defense or that he had committed
Uribe's original petition, he states that he did not
knowingly and voluntarily plead guilty but he bases this
claim on his arguments that he was not mentally competent at
the time to enter into the plea agreement (ECF No. 7, p. 9).
Mental incompetence as the basis for a guilty plea that is
not voluntary is a different core of alleged facts-and, in
fact, a contradictory set of alleged facts-than the assertion
that Uribe was not adequately apprised of the discovery and
of possible defenses. Mental incompetence is also a different
set of alleged facts than the assertion that ...