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Hebner v. McGrath, No. 06-16533 (9-16-08). What does it take for a new argument to relate back to a claim previously filed in habeas? Under the Supremes's decision in Mayle v. Felix, 545 US 644 (2005), the claim has to arise from the operative facts so as to avoid a statute of limitations bar. It isn't enough that it relates to the same trial, conviction, or sentence. The original claims by petitioner concerned propensity evidence, and ex post facto and constitutional claims related to uncharged conduct. Three years after the original petition was filed, and long after the AEDPA statute of limitations had run, petitioner tried to amend the petition to include a claim that the jury instruction violated due process by supposedly allowing the jury to convict him of the present sexual offense because of a prior one. The 9th (Clifton) upheld the denial as not relating back because the original claims went to evidence, while this new one went to jury instructions, and differed in time and character. It isn't enough that both raised constitutional claims, or even referenced arguably the same evidence.

U.S. v. Gianelli, No. 07-10233 (9-17-08). The 9th allows the seeking of restitution for a victim under the Federal Debt Collection Procedures Act of 1990. This was for restitution arising from a 1987 action. Because the defendant failed to appeal the restitution order then, he has waived the right to challenge the amount.

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