FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ALFRED W. HEBNER, 

No. 06-16533 Petitioner-Appellant,

D.C. No.

v.  CV-00-02907-VRW

JOE MCGRATH,* Warden, OPINION Respondent-Appellee. 

Appeal from the United States District Court

for the Northern District of California

Vaughn R. Walker, Chief District Judge, Presiding

Argued and Submitted

April 14, 2008—San Francisco, California

Filed September 16, 2008

Before: Ronald M. Gould, Richard R. Clifton, and

N. Randy Smith, Circuit Judges.

Opinion by Judge Clifton

*We retain in the caption the name of the original custodian of Alfred

W. Hebner, Warden Joe McGrath. Should the parties desire that the caption reflect his current custodian, they may file a motion requesting such

a change, supported by documentation identifying the current custodian.

12983
COUNSEL

George C. Boisseau and Dena Meirhenry (argued), Santa

Rosa, California, for the appellant. 

Nanette Winaker (argued) , Deputy Attorney General, State of

California, San Francisco, California, for the appellee. 

OPINION

CLIFTON, Circuit Judge:

Alfred W. Hebner seeks to challenge his California state

conviction with a petition for habeas corpus under 28 U.S.C.

§ 2254. The primary question presented by this appeal is

whether a new argument contained within a proposed

amended habeas corpus petition, filed by Hebner after the

one-year limitations period imposed by 28 U.S.C.

§ 2244(d)(1), part of the Antiterrorism and Effective Death

Penalty Act (AEDPA), related back to his timely filed original

petition. The district court denied Hebner’s motion for leave

to file the amended petition, concluding that the new claim

was untimely. We agree and answer the question posed above

in the negative. 

Federal Rule of Civil Procedure 15(c)(2) provides that an

amended complaint, in this case an amended habeas corpus

petition, relates back to the original pleading when it “[arises]

out of the same conduct, transaction, or occurrence.”

Although this court interpreted the relation-back provision

broadly in the past, the Supreme Court’s decision in Mayle v.

Felix, 545 U.S. 644 (2005), instructs us that the interpretation

12986 HEBNER v. MCGRATH
must be constrained. Under Mayle, a new claim in an

amended petition relates back to avoid a limitations bar, when

the limitations period has run in the meantime, only when it

arises from the same core of operative facts as a claim contained in the original petition. It is not enough that the new

argument pertains to the same trial, conviction, or sentence.

The new argument added in Hebner’s amended petition

regarding a jury instruction did not arise from the same core

of facts as any of the claims asserted in his original petition.

We thus affirm the district court’s denial of Hebner’s motion

to amend. Because Hebner’s other habeas argument on

appeal, a claim of ineffective assistance of counsel, is no more

successful, we affirm the district court’s denial of his habeas

corpus petition. 

I. Background 

Hebner was convicted after a jury trial in California state

court of four counts of forcible rape and one count each of

attempted rape, assault by force likely to produce great bodily

injury, and false imprisonment. The victim, named Kim, positively identified Hebner, testified that she was certain that he

was the man who raped her, and denied ever having consented to sexual intercourse with him. A hospital nurse testified that during an examination of Kim she discovered

secretions on Kim’s inner thighs, fingernail-shaped marks on

her left hand, and two bruises on her right arm. Kim told her

the man’s name was “Al” and that he had threatened to kill

her. A forensic expert testified that there was sperm present

in the vaginal smear from Kim and on the swab from her

inner thighs and clothing.

The evidence against Hebner also included testimony about

another sexual offense allegedly committed by Hebner. That

was presented in the form of testimony by Penelope, who

identified Hebner as the man who raped her seven years

before. The court admitted Penelope’s testimony under CaliHEBNER v. MCGRATH 12987
fornia Evidence Code § 11081

 as proof of the defendant’s

“propensity” to commit sexual offenses and under California

Evidence Code § 1101(b)2 as proof of intent and common

plan. At the close of evidence, the court provided the jury

with an instruction based upon a standard form then in common use, which stated in part that “if you find that the defendant did commit another sexual assault crime . . . you may

infer that . . . he also committed the charged sexual offenses

in this case.” The jury was also instructed, as was then customary, that it could find that the defendant committed the

other uncharged sexual offense based upon a preponderance

of the evidence.

Hebner was convicted and the trial court sentenced him to

forty-eight years in prison. The California Court of Appeal

affirmed the judgment, and the California Supreme Court

denied review. Hebner unsuccessfully sought post-conviction

1Cal. Evid. Code § 1108(a) provides that: “In a criminal action in which

the defendant is accused of a sexual offense, evidence of the defendant’s

commission of another sexual offense or offenses is not made inadmissible

by Section 1101, if the evidence is not inadmissible pursuant to Section

352.” Section 1101 provides that “evidence of a person’s character or a

trait of his or her character (whether in the form of an opinion, evidence

of reputation, or evidence of specific instances of his or her conduct) is

inadmissible when offered to prove his or her conduct on a specified occasion,” with specified exceptions, including the exception set forth in Section 1108. Section 352 provides that: “The court in its discretion may

exclude evidence if its probative value is substantially outweighed by the

probability that its admission will (a) necessitate undue consumption of

time or (b) create substantial danger of undue prejudice, of confusing the

issues, or of misleading the jury.” 

2Cal. Evid. Code § 1101(b) provides that: “Nothing in this section prohibits the admission of evidence that a person committed a crime, civil

wrong, or other act when relevant to prove some fact (such as motive,

opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident, or whether a defendant in a prosecution for an unlawful

sexual act or attempted unlawful sexual act did not reasonably and in good

faith believe that the victim consented) other than his or her disposition to

commit such an act.” 

12988 HEBNER v. MCGRATH
relief in California state court. The California Supreme Court

denied his final petition on April 26, 2000.

On August 15, 2000, Hebner filed pro se a petition for

habeas corpus under 28 U.S.C. § 2254 in federal district court.

The district court originally dismissed the petition as untimely

under 28 U.S.C. § 2244(d), and Hebner appealed. This court

reversed the dismissal and remanded the case after determining that the petition was timely in light of a decision rendered

in the meantime, Bunney v. Mitchell, 262 F.3d 973 (9th Cir.

2001).

In his original habeas petition, Hebner made several claims.

One was that the admission of propensity and character evidence, specifically the evidence regarding the alleged sexual

assault on Penelope, denied him due process and equal protection. In presenting the argument, Hebner’s original petition

stated that “the prior offense only needed to be proved by a

preponderance of the evidence” and that “there was a very

real possibility that the jury simply convicted petitioner of the

charged offense, not because they thought he was guilty, but

instead to ensure that he would be punished for the uncharged

offense.” Other claims were that California Evidence Code

§ 1108 was an ex post facto law, that the evidence was insufficient thus depriving him of due process, and that his trial

counsel rendered ineffective assistance in several ways,

including in failing to object to the admission of the evidence

concerning the sexual assault on Penelope.

On July 10, 2003, nearly three years after filing his original

petition in district court and long after the one-year AEDPA

limitations period had expired, Hebner filed a motion requesting leave to amend his original petition. He sought to add a

claim that the trial court’s jury instruction violated his right to

due process because “[t]he trial court instructed the jury that

they could convict [him] of the present offense merely

because of a preponderance of evidence that [he had] committed a similar offense.” The district court denied Hebner’s

HEBNER v. MCGRATH 12989
motion to amend, finding that his new claim was untimely

and did not relate back to his original petition.

Subsequently, the district court denied Hebner’s habeas

petition on all claims of relief.3 Hebner timely appealed. 

II. Discussion 

Hebner pursues two arguments on appeal. The first is that

his trial counsel was ineffective for failing to challenge the

admission of the prior sexual offense evidence. The second is

that he should have been permitted to amend his petition to

include a claim of jury instruction error, and that the argument

he sought to add was meritorious.

The district court’s denial of Hebner’s § 2254 petition is

reviewed de novo. Arnold v. Runnels, 421 F.3d 859, 862 (9th

Cir. 2005). The district court’s denial of a motion to amend

a pleading is reviewed for abuse of discretion. Pierce v. Multnomah County, 76 F.3d 1032, 1043 (9th Cir. 1996). 

Under AEDPA, we review a state court’s decisions under

a “highly deferential” standard. Woodford v. Visciotti, 537

U.S. 19, 24 (2002) (per curiam) (citation omitted). A habeas

petition cannot be granted unless the state court decision was:

(1) “contrary to, or involved an unreasonable application of,

clearly established Federal law, as determined by the Supreme

Court of the United States;” or (2) “based on an unreasonable

determination of the facts in light of the evidence presented

in the State court proceeding.” 28 U.S.C. § 2254(d). 

A. Ineffective Assistance of Counsel

We first consider whether the determination by the state

3The disposition of the petition by the district court was delayed in part

by the need for Hebner to exhaust one of his claims in state court, during

which time the federal proceeding was stayed. 

12990 HEBNER v. MCGRATH
court that Hebner’s attorney was not ineffective for failing to

object to the prior sexual misconduct on due process grounds

was contrary to, or an unreasonable application of, clearly

established federal law, or involved an unreasonable determination of the facts. See 28 U.S.C. § 2254(d). We conclude that

it was not and affirm the district court’s denial of Hebner’s

petition on that ground.

[1] A meritorious ineffective assistance of counsel claim

has two components. First, the petitioner must demonstrate

that counsel’s performance was deficient and “fell below an

objective standard of reasonableness.” Strickland v. Washington, 466 U.S. 668, 688 (1984). Second, the petitioner must

establish prejudice by demonstrating that “there is a reasonable probability that, but for counsel’s unprofessional errors,

the result of the proceeding would have been different.” Id. at

694.

[2] The state court of appeals rejected Hebner’s ineffective

assistance claim, concluding that the evidence would have

been admitted even if trial counsel had objected. Hebner concedes on appeal that, even if Hebner’s trial counsel succeeded

in challenging the admission of Penelope’s testimony under

California Evidence Code § 1108 for the purpose of showing

propensity to commit a sexual offense, the jury would have

heard the evidence anyway, because the trial court would

have admitted Penelope’s testimony under the wellestablished rule permitting evidence regarding common plan

or intent, Cal. Evid. Code § 1101(b). Under the circumstances, Hebner cannot establish the prejudice required by

Strickland to make out a successful claim of ineffective assistance of counsel.

B. Denial of Motion for Leave to Amend

Hebner moved for leave to file an amended petition which

sought to add a claim that the jury instructions given by the

trial court violated due process by opening the door to convicHEBNER v. MCGRATH 12991
tion by the jury based on a standard of proof lower than “beyond a reasonable doubt.” Hebner argues now that the jury

instructions expressly permitted the jury to find that Hebner

had committed a previous sexual assault based on “a preponderance of the evidence,” and that the jury could infer from

the previous crime that he had also committed the sexual

offenses in this case. We need not elaborate on that argument,

because the State of California concedes that our decision in

Gibson v. Ortiz, 387 F.3d 812, 822-23 (9th Cir. 2004), would

apply in this case to compel the granting of Hebner’s habeas

petition, if that claim was presented by Hebner on a timely

basis. The issue on appeal thus centers squarely on whether

Hebner asserted that claim in a way that fell within the oneyear limitations period. The district court denied Hebner’s

motion for leave to file an amended petition, concluding that

the new claim was untimely.

[3] Congress enacted AEDPA to advance the finality of

criminal convictions by imposing “a tight time line” in the

form of a one-year time limit on state prisoners seeking to

challenge their convictions in federal court. Mayle, 545 U.S.

at 662; 28 U.S.C. § 2244 (d)(1). The statute allows for a

habeas petition to be amended “as provided in the rules of

procedure applicable to civil actions.” 28 U.S.C. § 2242. Rule

15 of the Federal Rules of Civil Procedure, the applicable

civil rule on amended pleadings, provides that amendments

made after the statute of limitations has run may “relate back”

to the date of the original pleading when the amended pleading arises “out of the conduct, transaction, or occurrence set

out—or attempted to be set out—in the original pleading.”

Fed. R. Civ. P. 15 (c)(1). There is no dispute that Hebner’s

original petition did not contain this new claim and that his

amended petition was not offered until after the one-year limitations period had run, so the question is whether the claim at

issue related back.

[4] This court previously interpreted broadly “conduct,

transaction, or occurrence” to allow the relation back of an

12992 HEBNER v. MCGRATH
amended claim as long as it stems from the same trial, conviction, or sentence as the original. In Mayle, the Supreme Court

rejected our construction as “boundless,” because “[u]nder

that comprehensive definition, virtually any new claim introduced in an amended petition will relate back, for federal

habeas claims, by their very nature, challenge the constitutionality of a conviction or sentence.” Mayle, 545 U.S. at 656-

57, 661. An amended habeas petition “does not relate back

(and thereby escape AEDPA’s one-year time limit) 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.” Id. at 650. The original and amended claims must,

instead, be “tied to a common core of operative facts.” Id. at

664. 

In Mayle, the Supreme Court concluded that the petitioner’s amended complaint, which raised a Fifth Amendment self

incrimination objection regarding pretrial statements, did not

relate back to his original complaint, which raised a Sixth

Amendment confrontation clause objection regarding the

admission of videotaped witness testimony. Id. at 648-49. The

two claims were “separated in time and type” because the

amendment arose from a pretrial event and the original petition arose from the trial. Id. at 657; see also United States v.

Ciampi, 419 F.3d 20, 24 (1st Cir. 2005) (holding that pro se

petitioner’s ineffective assistance of counsel claim based upon

his counsel’s failure to inform petitioner of his appeal rights

before the plea did not relate back to his initial claim alleging

a due process violation based on the court’s failure to advise

the petitioner of the same consequences because the claims

did not arise from the same core facts). Therefore, the original

and amended petitions did not arise from the same “transaction.”

[5] The new claim advanced in Hebner’s proposed

amended petition did not relate back to his original complaint,

because it was “separated in time and type.” Mayle, 545 U.S.

at 657. In his original petition, Hebner asserted a claim that

HEBNER v. MCGRATH 12993
the admission of Penelope’s testimony violated his due process rights. Although Hebner made reference to the “preponderance of the evidence” standard which applied to the prior

sexual offense, he did so only to further his argument that the

admission of Penelope’s testimony could have led the jury to

find him guilty because they wanted to punish him for the

crime against Penelope, without regard to whether the jury

believed that he was actually guilty of the charged crimes

against Kim. A complete reading of the initial petition makes

clear that Hebner’s challenge was to the admission of Penelope’s testimony. The jury instruction itself was not at issue.

[6] In comparison, the claim Hebner sought to add in his

amended petition was that the trial court’s instructions effectively lowered the burden of proof required to convict him of

the charged offenses. Hebner’s original claim related to the

evidence admitted at trial, while his later claim was directed

at the jury instructions given by the trial court.

[7] Those two claims are not sufficiently related, under

Mayle. The Court specifically noted that Rule 2(c) of the

Rules Governing Section 2254 Cases in the United States District Courts (the Habeas Rules) requires a petitioner to “specify all [available] grounds for relief” and to “state the facts

supporting each ground.” Id. at 645. Under that rule, Hebner,

like the petitioner in Mayle, was required to state his two

claims separately. Each would have been supported by “separate congeries of facts,” the first claim focusing on the admission of evidence and the later claim on the instructions given

to the jury, suggesting that they were separate occurrences. Id.

at 646.

What can qualify as a related claim was illustrated by the

discussion in Mayle of the Court’s prior decision in Tiller v.

Atlantic Coast Line Railroad, 323 U.S. 574, 580-581 (1945).

That case involved a railroad worker who was struck and

killed by a railroad car. To recover for his wrongful death his

widow sued under the Federal Employers’ Liability Act, 45

12994 HEBNER v. MCGRATH
U.S.C. § 51 et seq., and alleged various negligent acts. Later

she added a claim under the Federal Boiler Inspection Act for

failure to provide the train’s locomotive with a rear light. The

Court held that the amendment related back, and therefore

avoided a statute of limitations bar, even though the amendment invoked a legal theory not suggested by the original

complaint and relied on facts not originally asserted, because

there was only one “episode-in-suit in Tiller, a worker’s death

attributed from the start to the railroad’s failure to provide its

employee with a reasonably safe place to work.” Mayle, 545

U.S. at 660. There was but one “single ‘occurrence,’ an accident resulting in her husband’s death.” Id.

[8] In contrast, here there are at least two discrete occurrences upon which Hebner bases his claims: the admission of

evidence during trial and the instructions charged to the jury

after the close of evidence. The two claims depend upon separate transactions and do not share a common core of operative

fact. The district court did not abuse its discretion in denying

Hebner’s motion requesting leave to amend his habeas petition, because the claim which he proposed to add by his

amendment did not relate back to the claims contained in his

original petition. 

III. Conclusion 

The district court correctly rejected Hebner’s original claim

of ineffective assistance of counsel, since he could not demonstrate prejudice. The jury instruction claim presented in

Hebner’s amended petition did not relate back to his original

petition because it arose from a different core of operative

facts, so it was untimely under the statute of limitations.

Accordingly, we affirm the denial by the district court of Hebner’s habeas corpus petition. 

AFFIRMED.

HEBNER v. MCGRATH 12995