Ross v. Williams

• Decision Date: 24 February 2020
• Docket Number: No. 16-16533,16-16533
• Citation: 950 F.3d 1160
• Parties: Ronald ROSS, Petitioner-Appellant, v. WILLIAMS, Warden; Attorney General for the State of Nevada, Respondents-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

950 F.3d 1160

Ronald ROSS, Petitioner-Appellant,

v.WILLIAMS, Warden; Attorney General for the State of Nevada, Respondents-Appellees.

No. 16-16533

United States Court of Appeals, Ninth Circuit.

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

Filed February 24, 2020

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.

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";

(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

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 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 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 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...