ORDER

MIRANDA M. DU, District Judge.

I. INTRODUCTION

Before the Court are the second amended petition for writ of habeas corpus (ECF No. 23), respondents' motion to dismiss (ECF No. 34), petitioner's opposition (ECF No. 47), and respondents' reply. (ECF No. 52.) The Court finds that some of petitioner's grounds are untimely. The Court grants the motion in part.

II. RELEVANT BACKGROUND

On October 12, 2009, the state district court entered a judgment of conviction for one count of robbery with the use of a deadly weapon, one count of first-degree kidnaping with the use of a deadly weapon, and one count of sexual assault with the use of a deadly weapon. (Exh. 58 (ECF No. 13-19).) Petitioner appealed, and the Nevada Supreme Court affirmed on November 8, 2010. (Exh. 66 (ECF No. 13-27).) The judgment of conviction became final with expiration of the time to petition for a writ of certiorari, on February 7, 2011.

Petitioner filed a post-conviction habeas corpus petition in the state district court on January 21, 2011. (Exh. 68 (ECF No. 13-29).) This petition immediately tolled the federal one-year period upon the period's commencement. The state district court quashed the petition. (Exh. 70 (ECF No. 13-31).) On appeal, the Nevada Supreme Court remanded for an evidentiary hearing on the claim that trial counsel provided ineffective assistance by not investigating and not objecting to the admission of a photographic lineup. (Exh. 74 (ECF No. 13-35).) Petitioner filed a supplemental petition. (Exh. 77 (ECF No. 14).) The state district court held an evidentiary hearing. (Exh. 79 (ECF No. 14-2).) The state district court then denied the petition. (Exh. 80 (ECF No. 14-3).) Petitioner appealed, and the Nevada Supreme Court affirmed. (Exh. 84 (ECF No. 14-7).) The Nevada Supreme Court denied rehearing on April 10, 2014. (Exh. 86 (ECF No. 14-9).) The Nevada Supreme Court denied en banc reconsideration on June 20, 2014. (Exh. 88 (ECF No. 14-11).) Remittitur issued on July 15, 2014. (Exh. 89 (ECF No. 14-12).)

III. DISCUSSION

Congress has limited the time in which a person can petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254:

28 U.S.C. § 2244(d)(1). If the judgment is appealed, then it becomes final when the Supreme Court of the United States denies a petition for a writ of certiorari or when the time to petition for a writ of certiorari expires. Jimenez v. Quarterman, 555 U.S. 113, 119-20 (2009). See also Sup. Ct. R. 13(1). Any time spent pursuing a properly filed application for state post-conviction review or other collateral review does not count toward this one-year limitation period. 28 U.S.C. § 2244(d)(2). The period of limitation resumes when the post-conviction judgment becomes final upon issuance of the remittitur. Jefferson v. Budge, 419 F.3d 1013, 1015 n.2 (9th Cir. 2005).

Petitioner effectively commenced this action on June 12, 2015, when he mailed his initial petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 (ECF No. 4) to the Court.1 This petition was filed 332 non-tolled days after the judgment of conviction became final, and it was timely. The amended petition (ECF No. 11) and the second amended petition (ECF No. 23) were filed after expiration of the one-year period. The grounds in the second amended petition need to relate back to grounds in the initial petition to be timely, under Rule 15(c) of the Federal Rules of Civil Procedure. An amended habeas corpus petition "does not relate back (and thereby escape [28 U.S.C. § 2244(d)(1)'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." Mayle v. Felix, 545 U.S. 644, 650 (2005). Relation back is allowed "[s]o long as the original and amended petitions state claims that are tied to a common core of operative facts . . . ." Id. at 664.

The Court agrees with respondents that Claims One, Two, Seven, Eight, and Nine do not relate back to the initial petition. None of the facts in these claims appear in the body of the initial petition. The Court is not persuaded that the attachments to the initial petition, which contain some of the facts alleged in these claims, are incorporated by reference. Rule 10(c) of the Federal Rules of Civil Procedure states:

It does not matter whether the documents to which petitioner now refers are "written instruments" within the meaning of the rule or whether they simply are exhibits. A rule that allows incorporation of documents by reference necessarily requires the pleader to actually refer to those documents. Petitioner made no reference to the documents attached to the initial petition. Petitioner's argument would mean that the Court would need to construct grounds for relief on petitioner's behalf. Rule 10(c) does not require that, and the Court will not do it.

Claim Three alleges that trial counsel provided ineffective assistance because trial counsel did not retain an expert witness on eyewitness testimony. Petitioner argues that this claim relates back to Ground One of the initial petition. In that ground, petitioner alleged:

(ECF No. 1 at 3-4.) The only similarity that Claim Three has with Ground One is the photographic identification array. Nothing in Ground One of the initial petition hints at the existence of an expert witness on eyewitness identification, let alone the findings that the expert would have made. The failure to call an expert witness to testify about the infirmities of eyewitness identification is different from the failure to move to exclude the photographic identification array. See Felix, 545 U.S. at 650. Claim Three does not relate back, and it is untimely.

Claim Four and Five are related. Claim Four alleges that trial counsel provided ineffective assistance because trial counsel failed to move to preclude admission of the photographic identification array. Claim Five alleges that the trial court erred in admitting the photographic identification array. Claims Four and Five of the second amended petition share a common core of operative fact with Ground One of the initial petition, quoted above, and they relate back. See Ha Van Nguyen v. Curry, 736 F.3d 1287, 1296-97 (9th Cir. 2013). However, to the extent that Claims Four and Five refer to the untimely Claim Three, as discussed below, respondents need not answer those parts of Claims Four and Five.

Claim Six of the second amended petition alleges that the trial court erred when it rejected a jury instruction proffered by the defense regarding eyewitness identification. Petitioner unpersuasively argues that this claim relates back to Ground One of the initial petition. However, Claim Six differs from Ground One both in time and type. Admission of the photographic lineup into evidence is not the same as the trial court's rejection of a proffered instruction that occurred after the close of evidence. Claim Six does not relate back.

In Claim Ten of the second amended petition, petitioner argues that the prosecution failed to collect DNA evidence from petitioner's body, which he claims would have shown that he had no contact with the victim. The Court is not persuaded that this claim relates back to Ground One of the initial petition. In Ground One, petitioner claims that his DNA was not found on the victim. (ECF No. 4 at 4.) The DNA, the person, and the location all differ from the facts alleged in Claim Ten. The Court also is not persuaded that this claim relates back to Ground Two of the initial petition. In Ground Two, petitioner alleged that "ample DNA and forensic evidence existed to rebut, or put the states case of a meaningful adversarial challenge." Id. at 8. Petitioner did not allege what that DNA evidence was, nor did he allege how that evidence would have rebutted or challenged the prosecution's case. Petitioner is asking the Court to rule that a detailed claim in the second amended petition regarding the failure to take a DNA sample from petitioner relates back to the mere mention of DNA in the initial petition. Such a ruling would make Mayle v. Felix a nullity, because it would allow anything to relate back to vague statements in an earlier petition, and the more vague the statement, the more expansive it would be for relation back purposes. The Court would not hesitate to rule that a claim of ineffective assistance of counsel filled with detailed facts does not relate back to a bare claim of ineffective assistance in an earlier petition. See Schneider v. McDaniel, 674 F.3d 1144, 1151-52 (9th Cir. 2012). The same rule applies in this situation. Claim Ten does not relate back to the initial petition.

Claim Eleven alleges that evidence was insufficient to support the verdicts. Petitioner presented an insufficient-evidence claim in Ground Two of the initial petition, but it did not include all the facts that he now presents in Claim Eleven. Specifically, petitioner includes the facts that he includes in Claims Nine and Ten, which do not relate back to the initial petition and are untimely. Claim Eleven does not relate back to the initial petition.2

Petitioner argues that the Court should excuse the operation of the statute of limitations because he is actually innocent. That argument is, in full:

(Opposition at 24 (ECF No. 47 at 32).)

Actual innocence can excuse operation of the statute of limitations. McQuiggin v. Perkins, 133 S.Ct. 1924, 1928 (2013). "`[A] petitioner does not meet the threshold requirement unless he persuades the district court that, in light of the new evidence, no juror, acting reasonably, would have voted to find him guilty beyond a reasonable doubt.'" Id. (quoting Schlup v. Delo, 515 U.S. 298, 329 (1995)). "`[A]ctual innocence' means factual innocence, not mere legal insufficiency." Bousley v. United States, 523 U.S. 614, 623 (1998). Regarding competency, petitioner appears to be referring at what would have been the sentencing hearing on April 9, 2007, when his statements to the court flew into fantasy. (Exh. 29 at 6-10 (ECF No. 12-7 at 7-11).)

The most favorable interpretation for petitioner that the Court could give would be that petitioner was not competent at the time of sentencing. However, incompetence at sentencing does not mean that petitioner did not commit the crimes. Petitioner also argues that the eyewitness testimony was weak, but that only is an argument that the jury should find him not guilty. Petitioner's conclusory argument does not show that the eyewitness testimony was so weak that no reasonable juror would find him guilty. See Lorentsen v. Hood, 223 F.3d 950, 954 (9th Cir. 2000). Petitioner has not demonstrated actual innocence.

Respondents argue that petitioner has not exhausted his state-court remedies for all of the claims in the second amended petition. Before a federal court may consider a petition for a writ of habeas corpus, the petitioner must exhaust the remedies available in state court. 28 U.S.C. § 2254(b). To exhaust a ground for relief, a petitioner must fairly present that ground to the state's highest court, describing the operative facts and legal theory, and give that court the opportunity to address and resolve the ground. See Duncan v. Henry, 513 U.S. 364, 365 (1995) (per curiam); Anderson v. Harless, 459 U.S. 4, 6 (1982).

The Court will not address the arguments that Claims One, Two, Six, Seven, Eight, Nine, Ten, and Eleven are unexhausted. The Court already is dismissing those claims because they are untimely. As for Claims Four and Five, the additional facts that petitioner presents in the second amended petition do not fundamentally alter the claims that petitioner presented to the state courts. See Vasquez v. Hillery, 474 U.S. 254, 260 (1986). Respondents also argue that Claim Four is not exhausted to the extent that petitioner claims that the Fifth Amendment was violated, because petitioner never mentioned the Fifth Amendment in the state-court proceedings. The Court accepts petitioner's representations that he is invoking only the due process clause of the Fifth Amendment, which is the same legal theory as the due process clause of the Fourteenth Amendment. (Opposition at 28 (ECF No. 47, at 36).) Claims Four and Five are exhausted.

Respondents also argue that Claims Nine and Ten are procedurally defaulted. The Court will not address this argument because the Court already is dismissing these claims as time-barred.

Respondents have filed a motion to file pleading in excess of pages (ECF No. 51). The Court grants this motion. Furthermore, a little more than a month after respondents filed their motion, the Court amended the local rules to put a limit of 30 pages on reply briefs in non-capital habeas corpus cases. LSR 3-2(b). Respondents' reply (ECF No. 52) complies with the new page limit.

IV. CONCLUSION

It is therefore ordered that respondents' motion to dismiss (ECF No. 34) is granted in part. Claims One, Two, Three, Six, Seven, Eight, Nine, Ten, and Eleven of the second amended petition (ECF No. 23) are dismissed with prejudice because they are untimely.

It is further ordered that respondents' motion to file pleading in excess of pages (ECF No. 51) is granted.

It is further ordered that respondents will have forty-five (45) days from the date of entry of this order to file and serve an answer, which must comply with Rule 5 of the Rules Governing Section 2254 Cases in the United States District Courts. Petitioner will have forty-five (45) days from the date on which the answer is served to file a reply.