Jose Irael Alvarez v. DWIGHT NEVEN, Warden; ATTORNEY GENERAL FOR THE STATE OF NEVADA

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOSE IRAEL ALVAREZ,
Petitioner-Appellant,
v.
DWIGHT NEVEN, Warden; ATTORNEY
GENERAL FOR THE STATE OF
NEVADA,
Respondents-Appellees.
No. 18-15516
D.C. No.
3:15-cv-00363-RCJ-WGC
MEMORANDUM*
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.
FILED
OCT 21 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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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

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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.

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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.

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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.

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Alvarez v. Neven, No. 18-15516
BAKER, Judge, concurring in part and dissenting in part:
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,
FILED
OCT 21 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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recognized in Ross, that courts of appeals generally do not decide in the first
instance questions otherwise reserved for trial courts.

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