An amendment to a habeas petition is one of those procedural things that brings into play a bunch of these different areas of law. And because it concerns a habeas petition there are various, unique complications.
There are various reasons why a request to an amend a petition may come up, I mean beyond the obvious ones. For example, it can often happen when a court grants a pro se petitioner’s request for the assignment of counsel and the attorney comes in and decides that certain claims should have been raised in the original petition. So this concept is not just important for pro se petitioners who struggle to properly plead a petition. It is just as important for practitioners.
So what exactly is the standard for amending a petition?
The answer to this below the fold . . .
So the amendment rules are pretty liberal overall. But nothing is ever that liberal in habeas proceedings. There are unique aspects to habeas cases that impact on whether amendments will be allowed.
Obviously, for habeas cases, the pleading referenced in Rule 15 is the habeas petition. And unlike a regular old complaint, that only needs to give “fair notice” of the claims, the habeas rules require that the petitioner provide a specify the grounds for relief as well as state the “facts supporting each ground.” This is a much higher pleading requirement than in a “run-of the-mine” civil case. By the way, I am not too familiar with the odd adjective “run-of-the-mine.” I use it here since Justice Ginsburg used it in this context in Mayle, discussed later. It’s a real word, but it usually shows up as “run-of-the-mill.” Outside of being the more common usage, run-of-the-mill just sounds better. Maybe it’s a generational thing, like washing your teeth.
Due to the higher pleading requirement, a court may ask that a petition be amended to conform with those requirements. I have seen that in a few cases recently.
But otherwise the request to amend is obviously instigated by the petitioner. But not the same standard applies to all requests to amend. This depends on when the request is made. And here is where the habeas statute comes into play. Specifically, the one-year statute of limitations. Just because an original petition is timely filed does not mean that a petitioner is free to continue to amend it once the one-year limitations period has expired. So here's the big question that must be asked: is the request for leave to amend within the one-year limitations period?
If a request is made before the limitations period has expired, the liberal “where justice so requires” standard is used. From the Weekly Reviews, I can say that they are typically granted. But not all of them are. Recently, requests have been denied where the judge looks at the merits of the issue and decides that they are losers, so they shouldn’t be added. But, for the most part, so long as the statute of limitations has not yet run, the request to amend will usually be granted.
What happens when the one-year statute of limitations has run by the time the request to amend the petition has been made? In such a situation, Rule 15(c) requires that the petitioner show that the amendments “relate back” to the claims in the original petition. Under that rule, an amendment relates back if the new claim “arose out of the conduct, transaction, or occurrence set forth” in the original petition. Fed. R. Civ. P. 15(c)(2).
And here is where the liberal amendment rules meets the general restrictions on habeas petitioners. It has to do with the meaning of “conduct, transaction or occurrence.” Courts had split on how to define these terms. Some courts read these words as referring to the same “trial, conviction, or sentence” as the claims in the original petition. That would have been most generous and, actually, easiest way to read these terms. But of course the Supreme Court did not go that way. This is habeas after all. Instead, in Mayle v. Felix, 545 U.S. 644 (2005), the Court severely restricted the definition of “conduct, transaction, or occurrence” to mean that the proposed claim must be tied to a "common core of operative facts" as a claim set forth in the original petition. Mayle, 545 U.S. at 659. Looked at another way, a proposed amendment 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.” Mayle, 545 U.S. at 657.
And what makes this so oppressive in habeas cases is the higher pleading requirements. The petitioner is required to be very specific in the petition as to the claim itself and the facts in support of the particular claims. Due to this heightened need to be specific as to the facts, this reading of the statute severely restricts the range of possible issues that could potentially relate back to those operative facts.
The Supreme Court justified this restrictive approach on the ground that habeas is supposed to be oppressive – it’s exactly what the AEDPA is all about, don’t you know? Once again, thanks, Bob Barr.
Under this limited relation-back concept, it really does force the petitioner to thread a needle. A microscopic needle with a tiny eye. Same common core of operative facts, huh? How many constitutional claims can be squeezed out of a single set of facts? Not many. Well, I can see IAC and IAAC claims layered on top of a procedurally defaulted claim potentially meeting that standard. I guess that’s something. There may also be some situations where a claim wasn’t fully pled, like a Brady claim where the petitioner only focused on the suppression of one document but failed to mention another. But, beyond that, I don’t see many other claims squeezing into that tiny eye of that microscopic needle.