NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS OCT 21 2021

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

JOSE IRAEL ALVAREZ, No. 18-15516

Petitioner-Appellant, D.C. No. 3:15-cv-00363-RCJ-WGC v.

DWIGHT NEVEN, Warden; ATTORNEY MEMORANDUM*

GENERAL FOR THE STATE OF

NEVADA,

Respondents-Appellees.

Appeal from the United States District Court for the District of Nevada Robert Clive Jones, District Judge, Presiding

Submitted October 19, 2021** San Francisco, California

Before: WATFORD and HURWITZ, Circuit Judges, and BAKER,*** International Trade Judge. Partial Concurrence and Partial Dissent by Judge BAKER.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). *** The Honorable M. Miller Baker, Judge for the United States Court of International Trade, sitting by designation. Page 2 of 5

Jose Alvarez appeals from the district court’s order dismissing his petition

for a writ of habeas corpus. He argues that the district court incorrectly concluded

that certain claims raised in his untimely second amended petition did not relate

back to his original, timely petition. We reverse and remand.

The district court found that Claims 2, 4, and 5 in Alvarez’s amended

petition did not relate back to his original petition because the original petition did

not contain sufficient operative facts to support relation back. Alvarez attached to

his original petition twelve documents related to his direct appeal and state habeas

petition, and he argued that these exhibits supplied the facts necessary to support

the grounds for relief asserted in the original petition. But the district court ruled

that these exhibits were not part of the petition for purposes of Rule 2(c) of the

Rules Governing Section 2254 Cases in the United States District Courts because

Alvarez merely attached the documents and did not specifically refer to them in the

petition itself.

When the district court issued its order, it did not have the benefit of this

court’s decision in Ross v. Williams, 950 F.3d 1160 (9th Cir. 2020) (en banc).

There, we held that “[i]f a petitioner attempts to set out habeas claims by

identifying specific grounds for relief in an original petition and attaching a court

decision that provides greater detail about the facts supporting those claims, that

petition can support an amended petition’s relation back.” Id. at 1167. We Page 3 of 5

explained that Habeas Rule 2(c) establishes only a pleading standard for habeas

petitions and that the more generous standards for relation back in Federal Rule of

Civil Procedure 15(c)(1)(B) can be satisfied by attaching an exhibit that sets out

the underlying facts. Id. at 1170.

The State attempts to distinguish Ross by pointing out that the petitioner in

that case filed an affidavit with his original petition stating that the attached

exhibits were incorporated by reference, while Alvarez did not make any explicit

statement of incorporation. But there is no suggestion in Ross that a formal

statement incorporating exhibits by reference is required. Ross did not rely on the

petitioner’s affidavit in holding that attached documents can provide the facts

necessary to support relation back, and we explicitly rejected the argument that a

petitioner must make “clear and repeated references” to an exhibit for it to be part

of a petition. Id. at 1169. Thus, the documents attached to Alvarez’s original

petition can supply the facts necessary for relation back.

When the attached exhibits are considered part of Alvarez’s original petition,

it is clear that Claims 2, 4, and 5 of the amended petition relate back to claims in

the original petition.1 The central question in this analysis is “whether the

amended and original petitions share a common core of operative facts, as those

1 We therefore need not consider whether, without the exhibits, amended Claims 2, 4, and 5 would nonetheless relate back because they assert the same grounds for relief set forth in the original petition. See Ross, 950 F.3d at 1167 n.4. Page 4 of 5

facts are laid out in the amended petition and attempted to be set out in the original

petition.” Id. at 1168 (internal quotation marks omitted).

First, Claim 2 of the second amended petition asserts that appellate counsel

was ineffective for failing to challenge the sufficiency of the evidence with respect

to the four counts of allowing a child to be present during the commission of drug-

related offenses. This legal claim is contained in Ground 3 of the original petition,

which alleged violation of Alvarez’s right to “effective counsel on appeal” as a

result of “appellate counsel Martin Crowley failing to raise the issue of the

insufficiency of the evidence . . . relative to [the same four counts].” The facts

underlying amended Claim 2 are set forth in Alvarez’s state habeas corpus

appellate brief, which addressed the same issue and was attached to the original

petition.

Second, amended Claim 4 asserts that trial counsel was ineffective for

failing to move for the suppression of evidence based on the alleged invalidity of

an anticipatory warrant. Ground 1 of the original petition claimed that Alvarez’s

rights were violated by trial counsel’s “failure to file a single motion to suppress

evidence based on the . . . [invalid] warrant.” Alvarez raised this same claim in his

state habeas petition, and the operative facts are described in the Nevada district

court’s order denying that petition, which was also attached to the original federal

petition. Page 5 of 5

Finally, amended Claim 5 asserts that trial counsel was ineffective for failing

to object to inappropriate statements made by the prosecutor during closing

arguments, including statements allegedly suggesting that the prosecutor had

personal knowledge of the investigation. In Ground 2 of the original petition,

Alvarez claimed that trial counsel was ineffective for not moving to disqualify the

prosecutor “for being involved in the investigation” and offering “indirect

testimony in petitioner’s closing arguments.” The details supporting this claim are

also contained in the Nevada district court order attached to the original petition.

Claims 2, 4, and 5 of the second amended petition all share a common core

of operative facts with claims that Alvarez attempted to set out in his original

petition. These claims relate back to the original petition and are therefore timely.

REVERSED and REMANDED.

FILED

Alvarez v. Neven, No. 18-15516 OCT 21 2021

MOLLY C. DWYER, CLERK

BAKER, Judge, concurring in part and dissenting in part: U.S. COURT OF APPEALS

I join the Court’s memorandum disposition insofar as it reverses the district

court based on our intervening decision in Ross v. Williams, 950 F.3d 1160 (9th

Cir. 2020) (en banc). I respectfully dissent, however, from reaching out to also

decide whether, when the exhibits attached to Mr. Alvarez’s original petition are

considered part of that petition as Ross requires, Claims 2, 4, and 5 of the amended

petition relate back to claims in his original petition.

Although presumably we have the discretion to decide whether the claims

relate back, I would instead follow the example set by Ross, which—rather than

deciding the identical question in the first instance—remanded to the district court

to make that determination, save for one claim that we discussed to illustrate

application of the legal framework announced in that decision. See id. at 1173–74;

see also id. at 1168 (applying Ross’s framework to the “obvious example” of one

claim in Mr. Ross’s amended petition) (emphasis added).

If deciding the relation-back question allowed us to avoid further district

court proceedings altogether by resolving the case, my conclusion might differ, but

because we are remanding to the district court to consider the merits of Mr.

Alvarez’s petition regardless, any marginal judicial economy gains from our

deciding that issue now are outweighed by our encroachment upon the principle, Page 2 of 2

recognized in Ross, that courts of appeals generally do not decide in the first

instance questions otherwise reserved for trial courts.