Noor v. State

This opinion is subject to revision before final
publication in the Pacific Reporter
2019 UT 3IN THE
SUPREME COURT OF THE STATE OF UTAH
STATE OF UTAH,
Appellee,
v.
OSMAN MOHAMMED NOOR,
Appellant.
No. 20160797
Filed January 18, 2019
On Direct Appeal
Third District, Salt Lake
The Honorable Vernice S. Trease
No. 09195211
Attorneys:
Sean D. Reyes, Att’y Gen., Daniel W. Boyer, Asst. Solic. Gen.,
Salt Lake City, for appellee
Samuel Alba, Robert T. Denny, Salt Lake City, for appellant
CHIEF JUSTICE DURRANT authored the opinion of the Court, in which
JUSTICE HIMONAS and JUSTICE PEARCE joined.
ASSOCIATE CHIEF JUSTICE LEE and JUSTICE PETERSEN joined in the
majority as to Section I.
ASSOCIATE CHIEF JUSTICE LEE filed a dissenting opinion in which
JUSTICE PETERSEN joined.
CHIEF JUSTICE DURRANT, opinion of the Court:
Introduction
¶1 Osman Mohammed Noor, a pro se petitioner and Somalian
refugee, timely filed a petition under the Post-Conviction Remedies
Act (PCRA) seeking relief from his convictions. In his original
petition, he claimed that relief under the PCRA was warranted
because, among other reasons, his trial counsel was ineffective in
STATE v. NOOR
Opinion of the Court
failing to alert the district court to his lack of fluency with the
English language and his cultural background. Before the district
court determined the merits of his petition, the court appointed
Mr. Noor pro bono counsel, but only after the one-year statute of
limitations period on his PCRA petitions had expired. With
permission from the court, pro bono counsel amended his petition
by removing all previous claims from the original petition and
replacing them with a claim that Mr. Noor’s trial counsel was
ineffective for (1) failing to secure competent interpreters for
Mr. Noor at trial, (2) failing to allow him to participate in his own
defense, and (3) failing to inform him that he would be deported if
convicted.
¶2 The State moved to dismiss the allegations raised in the
amended petition, arguing that they were time-barred under the
PCRA’s statute of limitations and that the amended claim in the
amended petition did not arise out of the same conduct, transaction,
or occurrence as the original claims, as required by rule 15(c) of the
Utah Rules of Civil Procedure. The district court agreed with the
State and held that the amended petition was time-barred under the
PCRA.
¶3 On appeal, Mr. Noor argues that the district court erred in
applying rule 15(c) to his amended petition because (1) the court had
sufficient discretion to review his amended petition irrespective of
whether the petition was filed after the one-year limitations period,
and (2) rule 15(c) does not apply to amendments to PCRA petitions.
Alternatively, he argues that if rule 15(c) does apply, his claim in the
amended petition arises from the same conduct, transaction, or
occurrence as the claim set forth in the original petition, and so his
new claim is not time barred but instead relates back to the date of
the original petition.
¶4 We hold that the district court did not err in concluding that
rule 15(c) applies to proposed amendments made to PCRA petitions.
Both the PCRA’s language and Utah caselaw support applying rule
15(c)’s relation-back test to the PCRA and its procedural companion,
rule 65C. This is consistent with recent amendments to the PCRA
and rule 65C, which removed exceptions for time-barred petitions.
¶5 The district court did err, however, in concluding that the
claim in Mr. Noor’s amended petition did not satisfy rule 15(c) and
so was time barred under the PCRA. Mr. Noor’s amended petition
did satisfy rule 15(c). He did not assert a new or different claim in his
amended pleading and, under a liberal reading of the amendment,
the State received notice of the factual grounds for his amended
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claim. Accordingly, we reverse and remand for proceedings
consistent with this opinion.
Background1
¶6 Osman Mohammed Noor, a Somalian immigrant, entered
his apartment manager’s dwelling without her permission. He did so
after an altercation with the manager. Once inside, Mr. Noor
removed his clothing, pulled the manager on top of him, and
attempted to kiss her repeatedly. He also simulated oral sex over her
clothing and touched her genitals under her pants. He performed all
of these acts against her will. During the incident, the manager
repeatedly demanded that Mr. Noor stop his advances and leave her
apartment. She also called the police, who arrived just as the
manager broke free from Mr. Noor and ran from her apartment.
¶7 Mr. Noor was arrested and subsequently charged with one
count each of burglary, forcible sexual abuse, and lewdness. Because
he had difficulty understanding and communicating in English, he
was provided with several interpreters to assist him throughout the
course of his criminal proceedings. He was also appointed counsel
from the legal defender’s office, who communicated to Mr. Noor
through the same interpreters.
¶8 In January 2011, Mr. Noor was tried by a jury on the three
charges. He once again received assistance from two interpreters and
representation by appointed counsel during the trial. At trial, the
State put on two witnesses—the manager and the police officer who
responded to her emergency call. After the State’s case in chief,
Mr. Noor’s counsel moved for a directed verdict based on
insufficient evidence, which motion the district court denied. The
jury found Mr. Noor guilty on all three charges. The district court
subsequently sentenced Mr. Noor to concurrent one- to fifteen-year
prison terms for burglary and forcible sexual abuse, and the court
ordered credit for time served on his lewdness conviction.
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1 “In reviewing a jury verdict, we view the evidence and all
reasonable inferences drawn therefrom in a light most favorable to
the verdict.” State v. Honie, 2002 UT 4, ¶ 2, 57 P.3d 977 (citation
omitted). While here we are asked to review a district court’s denial
of post-conviction relief, and not a jury verdict, we view the facts
through the same lens.
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STATE v. NOOR
Opinion of the Court
¶9 Following his conviction and sentence, Mr. Noor appealed
the jury’s determination to the Utah Court of Appeals, again through
his appointed counsel.2 On appeal, he argued that “the State failed to
present sufficient evidence to prove that he had the requisite intent
to commit lewdness or forcible sexual abuse.” 3 Specifically, he
argued that “subjugation and domination of women is acceptable
and even encouraged in the highly patriarchal Somali culture” and
that because of this “his actions should be viewed only as a
misguided attempt to express love and affection and that he had no
intent to commit forcible sexual abuse or lewdness.” 4 He also
claimed that his “lack of fluency in the English language and his
intoxication impaired his ability to understand [the manager’s]
demands that he stop his advances and leave her apartment.”5
¶10 The court of appeals held that Mr. Noor had failed to
preserve these arguments for appeal. It noted that Mr. Noor’s motion
for directed verdict never mentioned the arguments he raised on
appeal, and instead merely “move[d] for a directed verdict of
acquittal based on insufficiency of evidence,“which the district court
immediately denied.6 “This exchange,” the court reasoned, “did not
apprise the district court that Noor was asserting that his cultural
background, intoxication, and difficulties understanding English
rendered him unable to form the requisite intent as to the crimes
charged against him.”7 The court therefore declined to address the
merits of these arguments and affirmed all three convictions on
July 12, 2012.8
¶11 Mr. Noor thereafter petitioned this court for certiorari,
which we denied on October 17, 2012.9 He did not pursue an
additional appeal to the United States Supreme Court. On
_____________________________________________________________
2 State v. Noor, 2012 UT App 187, 283 P.3d 543.
3 Id. ¶ 4.
4 Id. ¶ 6.
5 Id.
6 Id. ¶ 7.
7 Id.
8 Id. ¶ 8.
9 State v. Noor, 288 P.3d 1045 (Table) (Utah 2012), 2012 WL
5544861.
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November 5, 2013, Mr. Noor—this time without the assistance of
counsel—filed a petition (Original Petition) for relief under the
PCRA. He also simultaneously filed a request for court-appointed
counsel to help him in pursuing his PCRA claims, which the district
court denied on December 30, 2013. In his Original Petition, he made
three claims for post-conviction relief, one of which is relevant to this
dispute: “[d]enial of effective assistance of trial counsel” for his
appointed counsel’s failure to “br[ing] to the trial court’s attention
that [Mr. Noor’s] lack of fluency in English . . . impaired his ability to
understand the victim’s demands that he stop his advances” and for
counsel’s failure to “br[ing] to the trial court’s attention the fact that
[Mr. Noor’s] cultural background prevented him from forming the
requisite intent” in this case. It is undisputed that Mr. Noor’s
Original Petition was filed two months before the PCRA’s statutory
deadline of January 15, 2014.10
¶12 In response to the Original Petition, the State filed its initial
motion for summary judgment. Before filing an opposition to the
State’s motion, Mr. Noor wrote the district court explaining his
difficulty reading and writing in English and requested that the
court appoint counsel to assist him with his PCRA claims. In
response, on April 7, 2014, the court ordered that Mr. Noor be
appointed pro bono counsel and requested the Utah State Bar’s
assistance in making that appointment. On October 7, 2014, the first
pro bono counsel entered an appearance on Mr. Noor’s behalf, but,
due to a conflict, was allowed to withdraw as Mr. Noor’s counsel by
the district court on December 8, 2014. Mr. Noor was then appointed
his current pro bono counsel, Sam Alba, on March 4, 2015. At a
status conference on April 27, 2015, the district court asked Mr. Alba
if he “wanted time to file a supplemental or amended petition as
counsel for Mr. Noor.” Mr. Alba responded that he believed the
Original Petition was not “adequate” and that he “need[ed] an
opportunity to try and put some substance to it.” The State did not
object and the district court granted leave to amend the Original
Petition.
¶13 Mr. Noor filed his amended petition (Amended Petition) on
August 28, 2015—more than a year and seven months after the
PCRA’s statute of limitations had run. The Amended Petition
omitted all three claims for relief listed in the Original Petition. In
their place, Mr. Noor asserted a per se ineffective assistance of
_____________________________________________________________
10 See UTAH CODE § 78B-9-107(1).
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STATE v. NOOR
Opinion of the Court
counsel claim for his counsel’s alleged failure to “seek a competent
interpreter for Mr. Noor at trial.” He also alleged three other
grounds for ineffective assistance of counsel, asserting that his
counsel was ineffective in (1) failing to carry out his “obligation to
make sure that Mr. Noor understood what was happening at
trial,”(2) “not let[ting] Mr. Noor aid in his own defense prior to
trial”; and (3) “failing to advise Mr. Noor of the risk of deportation if
a jury found him guilty.”
¶14 The State filed a motion for summary judgment seeking to
dismiss all of Mr. Noor’s allegations in the Amended Petition on the
basis that, in addition to other grounds, they were time-barred under
the PCRA’s one-year statute of limitations and did not relate back to
the claims in the Original Petition. In response, Mr. Noor did not
dispute that the Amended Petition was filed after the one-year
deadline, but instead argued that the amendments should be
deemed timely because the district court, pursuant to its authority,
granted him leave to amend the Original Petition at the status
conference. Alternatively, he argued that the claims in the Amended
Petition related back to the claims in the Original Petition.
¶15 The district court disagreed with Mr. Noor on both
arguments. The court first rejected his argument that the court’s
grant of leave to amend excused him from the PCRA’s one-year time
bar, noting that when it had granted leave to Mr. Noor’s counsel at
the status conference “the limitations period was not raised by the
parties or addressed [by] the Court.” The court further stated that
“even if the statute of limitations issue would have been raised, it is
doubtful that the Court had any authority to extend the limitations
period at the time of the status conference” because “the legislature
has sharply restricted a district court’s ability to consider an
untimely petition for postconviction relief.”
¶16 The court also rejected Mr. Noor’s alternative argument—
that the claims raised in the Amended Petition related back to the
Original Petition. The court determined that amendments to
post-conviction petitions are governed by rule 15(c) of the Utah
Rules of Civil Procedure—so that in order for a new claim filed after
the one-year bar to be declared timely “the new claim must ‘ar[i]se
out of the conduct, transaction, or occurrence set forth . . . in the
original pleading.” The court then held that “even the most liberal
reading of the allegations in the Original and Amended Petition
cannot sustain a reasonable inference that the claims in the Amended
Petitions arise from the same factual allegations as the claims in the
Original Petition.” The district court therefore granted summary
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judgment in favor of the State and dismissed all of the claims raised
by Mr. Noor in the Amended Petition.
¶17 Mr. Noor timely appealed the district court’s decisions and
the court of appeals certified this case to us. We have jurisdiction
pursuant to Utah Code section 78A-3-102(3)(b).
Standard of Review
¶18 Mr. Noor effectively raises two issues on appeal: (1)
whether the relation-back doctrine provided in rule 15(c) of the Utah
Rules of Civil Procedure must be satisfied when a petitioner amends
his or her PCRA petition after the expiration of the one-year statute
of limitations set forth in Utah Code section 78B-9-107(1); and, (2) if
so, whether the district court erred in dismissing the claims raised in
Mr. Noor’s Amended Petition on the ground that they did not relate
back to the claims in his Original Petition. “We review an appeal
from an order dismissing or denying a petition for post-conviction
relief for correctness without deference to the lower court’s
conclusions of law.”11 Similarly, “[w]e review the district court’s
decision to grant summary judgment for correctness, granting no
deference to the [district] court.”12 We likewise have held that “[a]
district court’s interpretation of a statute is a question of law, which
we also review for correctness.”13
Analysis
¶19 On appeal, Mr. Noor first argues that the district court erred
in holding that it lacked authority to allow him to add new claims to
his Original Petition after the one-year statute of limitations had run.
He argues that both the PCRA and Rule 65C of the Utah Rules of
Civil Procedure14 grant the court discretion to allow amended PCRA
petitions even when they raise claims unrelated to claims filed in a
petitioner’s original petition, and even after the statute of limitations
_____________________________________________________________
11 Taylor v. State, 2012 UT 5, ¶ 8, 270 P.3d 471 (citation omitted).
12 Alliant Techsystems, Inc. v. Salt Lake Cty. Bd. of Equalization, 2012
UT 4, ¶ 17, 270 P.3d 441 (citation omitted) (second alteration in
original).
13 Id.14 Rule 65C sets forth the procedural rules that “govern[]
proceedings in all petitions for post-conviction relief filed under the
Post-Conviction Remedies Act.” UTAH R. CIV. P. 65C(a).
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STATE v. NOOR
Opinion of the Court
in section 78B-9-107(1) has expired. He further argues that the
district court has sufficient discretion to allow new claims in PCRA
petitions, even when the new claims fail to satisfy rule 15(c)’s
relation-back test.15
¶20 But Mr. Noor fails to account for language within the PCRA
which explicitly states that the rules of civil procedure apply. He
likewise ignores our recent case, Gordon v. State,16 where we held that
rule 7(e) is implicitly incorporated into rule 65C. Additionally, as
noted by the district court, amendments made to both the PCRA and
Rule 65C show that district courts’ discretion to grant time-barred
petitions has been restricted. Accordingly, we hold that the district
court correctly concluded it lacked discretion to allow new claims
that do not meet rule 15(c)’s relation-back test after the limitations
period had run.
¶21 In the alternative, Mr. Noor argues that even if the district
court lacked authority to allow the new claims raised in the
Amended Petition, these new claims satisfy rule 15(c)’s relation-back
test. He asserts that his Original Petition contained claims for
ineffective assistance of counsel, mentioned the fact that he had
trouble understanding English, and noted his cultural background.
He argues that these arguments were “the core of [his] amended
claims.” He also contends that rule 15(c) should be liberally
construed given rule 15(a)’s mandate and in light of the fact that he
filed his Original Petition pro se. We agree.
¶22 The district court erred in holding that Mr. Noor’s amended
claims did not relate back to his Original Petition. The allegations
raised in his Amended Petition did not involve “new and different
cause[s] of action,” which are prohibited under our relation-back
jurisprudence.17 Instead, the amendments merely expanded the
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15 Rule 15(c) of the Utah Rules of Civil Procedure provides that
“[a]n amendment to a pleading relates back to the date of the
original pleading when . . . the amendment asserts a claim or defense
that arose out of the conduct, transaction, or occurrence set out—or
attempted to be set out—in the original pleading.”
16 2016 UT 11, ¶ 39 n. 17, 369 P.3d 1255.
17See Behrens v. Raleigh Hills Hosp., Inc., 675 P.2d 1179, 1182 (Utah
1983).
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claims Mr. Noor pled in his Original Petition. We reverse on this
ground.
I. The District Court Correctly Held That It Did Not Have Discretion
to Allow an Amendment to Mr. Noor’s PCRA Petition Filed After
the One-Year Statute of Limitations Unless the Amendment Met the
Relation-Back Test of Rule 15(c)
¶23 Mr. Noor first argues that the district court had sufficient
discretion to allow him to amend his PCRA petition after the statute
of limitations had expired, regardless of whether his allegations in
the Amended Petition related back to the Original Petition under
rule 15(c). Specifically, he asserts that rule 65C exclusively governs
PCRA petitions, and amendments to petitions, and that rule 15(c)
does not apply to PCRA amendments filed after the one-year statute
of limitations, because rule 65C makes no mention of rule 15(c). For
support, he points to language within the PCRA, which states that
“[p]rocedural provisions for filing and commencement of a petition
are found in Rule 65C, Utah Rules of Civil Procedure.”18 According
to Mr. Noor, this language indicates that the legislature intended
rule 65C to exclusively govern PCRA claims.
¶24 He also points to two provisions within rule 65C that deal
with amendments to PCRA petitions. First, he points to subsection
(h)(3), which provides that when a claim is “deficient due to a
pleading error or failure to comply with the requirements of [rule
65C], the court shall return a copy of the petition with leave to
amend within 21 days,” and that the “court may grant one
additional 21-day period to amend for good cause shown.”19
Mr. Noor argues that “[t]his provision places no restriction on the
claims that may be raised in the amended petition” and “does not
suggest that such claims must be the same or relate back to the
original petition.” Second, he cites subsection (k), which sets out the
requirements for answers and other responses and states that “[n]o
further pleadings or amendments will be permitted unless ordered
by the court.”20 He asserts that “[t]his provision leaves it within the
trial court’s discretion as to whether to allow amended PCRA
petitions.” Accordingly, Mr. Noor believes these two provisions
_____________________________________________________________
18 UTAH CODE § 78B-9-102(1)(a).
19 UTAH R. CIV. P. 65C(h)(3).
20 Id. 65C(k).
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STATE v. NOOR
Opinion of the Court
show that the trial court has discretion when determining whether to
allow a petitioner to file an amended petition, “even if it raises new
claims and even after the statute of limitations has expired.”
¶25 In response, the State argues the district court correctly
concluded that amended petitions filed after the statute of
limitations are subject to rule 15(c). It asserts that while rule 65C
generally governs PCRA petitions, “when rule 65C does not
specifically address a procedural issue, the remainder of the rules of
civil procedure govern.” In support, the State cites to language in
section 78B-9-102(1)(a), which provides that “[p]roceedings under
[the PCRA] are civil and are governed by the rules of civil
procedure.” The State also argues that while rule 65C does contain
provisions governing amended petitions, these provisions are silent
on whether claims are time barred when raised in an amended
petition that falls outside of the PCRA’s statute of limitations. We
agree with the State on this point.
¶26 The district court correctly held that, for several reasons,
PCRA petitions are governed by rule 15 of the Utah Rules of Civil
Procedure. First, the language of the PCRA supports this conclusion.
Section 78B-9-102 provides in relevant part:
This chapter establishes the sole remedy for any person
who challenges a conviction or sentence for a criminal
offense and who has exhausted all other legal
remedies, including a direct appeal except as provided
in Subsection (2). This chapter replaces all prior
remedies for review, including extraordinary or
common law writs. Proceedings under this chapter are
civil and are governed by the rules of civil procedure.
Procedural provisions for filing and commencement of a
petition are found in Rule 65C, Utah Rules of Civil
Procedure.21
As shown above, the legislature expressly stated that the rules of
civil procedure will govern “[p]roceedings” in PCRA claims.
Although the statute provides that “[p]rocedural” requirements to
PCRA petitions are “found in Rule 65C,” this line cannot be read in
isolation. When both provisions are read together, it appears the
legislature intended PCRA claims to be governed by all of the rules
of civil procedure and that a court should make “procedural”
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21 UTAH CODE § 78B-9-102(1)(a) (emphasis added).
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departures from the rules only when expressly called for in rule 65C.
Because rule 65C does not explicitly address new claims in amended
petitions filed after the one-year statute of limitations, other rules of
civil procedure, including rule 15(c), should be used to fill in the
gaps.
¶27 Second, our caselaw supports an incorporation of rule 15(c)
into rule 65C. Recently, in Gordon v. State, we reviewed a district
court’s failure to allow a PCRA petitioner an opportunity to reply to
the State’s response to his petition.22 After reviewing the petitioner’s
motion for reconsideration on this matter, the district court denied
the petitioner’s motion on the ground that “the PCRA does not
explicitly give a petitioner a right to reply to a response by the
State.”23 On appeal, we held that, even absent such explicit language,
the petitioner had a right to file a reply under the PCRA pursuant to
the rules of civil procedure.24 Specifically, we stated that “[c]ivil rule
65C(k) does not expressly call for a reply, but we find such a right
incorporated in rule 7(e)” and that “rule 65C’s reference to
disposition by ‘hearing or otherwise’ [was] an incorporation of other
rules of civil procedure.”25
¶28 Gordon may very well signal an express adoption of “other
rules of civil procedure” into the PCRA by this court. At a minimum,
our holding in Gordon shows our willingness to use “other rules of
civil procedure” to answer questions raised by the text of rule 65C.
We expressed no reservation in incorporating rule 7(e) into rule 65C,
despite the lack of any express language indicating that we should.
Incorporating rule 15(c) into rule 65C for claims in amended
petitions filed after the one-year deadline therefore is consistent with
our jurisprudence.
¶29 Finally, amendments to the PCRA and rule 65C support the
district court’s reading of rule 65C to include rule 15(c)’s
relation-back test. In 2008, the legislature substantially altered the
language and structure of the PCRA. Prior to 2008, the PCRA was
considered only “a substantive legal remedy” for a petitioner
_____________________________________________________________
22 2016 UT 11, 369 P.3d 1255.
23 Id. ¶ 8.
24 Id. ¶ 39.
25 Id. ¶ 39 nn. 17–18.
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STATE v. NOOR
Opinion of the Court
challenging a conviction or sentence.26 After 2008, the legislature
reformed the PCRA to make it the “sole legal remedy” for such
challenges.27 We noted that these changes to the PCRA worked to
limit our courts’ ability to review the merits of statutorily-barred
petitions.28
¶30 The most important of these amendments, for the purposes
of this case, was the removal of an explicit exception to the one-year
time bar under the PCRA. The pre-2008 PCRA expressly permitted a
district court to excuse the one-year time bar if justice required: “If
the court finds that the interests of justice require, a court may
excuse a petitioner’s failure to file within the time limitations.”29 The
2008 amendment to the PCRA removed this “interests of justice”
exception entirely and instead replaced it with three limited
circumstances where the limitations period would be tolled: when
“the petitioner was prevented from filing a petition” (1) “due to state
action in violation of the United States Constitution”; (2) “due to
physical or mental incapacity”; or (3) “due to force, fraud, or
coercion.”30
¶31 The removal of the “interests of justice” exception in the
2008 PCRA amendments curtailed a district court’s discretion to
_____________________________________________________________
26 UTAH CODE § 78-35a-102 (1996).
27 Id. § 78B-9-102(1) (2008).
28 For example, we have acknowledged that the 2008 amendment
“appears to have extinguished our common law writ authority” to
review the merits of certain time-barred petitions. Peterson v.
Kennard, 2008 UT 90, ¶ 16 n.8, 201 P.3d 956; see also Gardner v. State,
2010 UT 46, ¶ 91, 234 P.3d 1115. While our common law writ
authority appears to have been eliminated, we have suggested,
although we have not reached the question, that this court may have
ongoing constitutional authority to review the merits of such
petitions. See Winward v. State, 2012 UT 85, ¶ 28, 293 P.3d 259;
Gardner, 2010 UT 46, ¶ 93. But because Mr. Noor has not argued that
this court has constitutional authority to review the merits of a
petition that is time-barred under the PCRA, we offer no opinion on
whether such authority exists.
29 UTAH CODE § 78-35a-107(3) (1996).
30Id. § 78B-9-107(3) (2016). The third circumstance listed above
was not part of the original 2008 amendment but was added later.
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review time-barred PCRA petitions. Instead of granting a district
court discretion to allow a petitioner to file a late claim where the
court believed that the interests of justice require, the legislature
limited the court’s ability to allow time-barred petitions to three
specific circumstances. The legislature therefore effectively limited
the district court’s broad discretion in hearing time-barred petitions.
And by removing the interests of justice exception, along with the
common law writs for post-conviction relief, the legislature indicated
its intent that the PCRA, and its limitations period, be strictly
followed.
¶32 In light of these changes, it seems highly unlikely that the
legislature intended to grant a district court complete discretion to
hear what would otherwise be time-barred claims in amended
petitions filed after the limitations period had expired. Such a
reading would undermine these amendments to the PCRA—a
petitioner could simply rely on the broad discretion of the district
court by amending its original petition and asserting new claims
instead of filing a new petition that would ultimately be barred.
Accordingly, holding that district courts do not have discretion to
review new claims in amended petitions, unless these claims relate
back to a claim filed in a timely original petition, gives effect to these
amendments.
¶33 Amendments to rule 65C further illustrate that a district
court’s discretion to review barred claims under the PCRA has been
statutorily curtailed. In 2009, this court amended rule 65C of the
Utah Rules of Civil Procedure.31 Prior to these amendments, rule 65C
permitted a petitioner to file, in addition to claims asserted in the
original petition, “[a]dditional claims relating to the legality of the
conviction or sentence” when “good cause [is] shown.” 32 This
exception was removed by the 2009 amendments. The advisory
committee notes state that this was done to “embrace Utah’s
Post-Conviction Remedies Act as the law governing post-conviction
_____________________________________________________________
31 The 2009 amendments did not actually take effect until January
2010. However, because the advisory committee notes to rule 65C
refer to these amendments as the “2009 amendments,” we refer to
them in the same manner.
32 UTAH R. CIV. P. 65C(c) (2009).
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STATE v. NOOR
Opinion of the Court
relief,”33 or, in other words, to give effect to the PCRA’s statement
that it is the “sole legal remedy” for post-conviction relief. We
therefore removed the good cause exception from rule 65C to
embrace the changes made to the PCRA that limited a district court’s
discretion for review of time-barred petitions. Removing the “good
cause” exception in rule 65C therefore illustrates our intention to
align our rules with the amended PCRA and thus shows our
intention to strictly enforce its one-year statute of limitations.
Because district courts’ discretion was also limited by rule 65C, it
follows that the district court does not have broad discretion to
review new claims in amended petitions after the limitations period
has expired.
¶34 Here, Mr. Noor argued to the district court that it had
authority to review the claims in the Amended Petition without
engaging in a relation-back analysis and that it had granted
Mr. Noor leave to amend pursuant to that authority at the status
conference. The district court determined, however, that it could not
review the merits of Mr. Noor’s claims in the Amended Petition
unless those claims satisfied the relation-back test set forth in rule
15(c). In its memorandum decision, the court stated that it was
“doubtful that the Court had any authority to extend the limitations
period at the time of the status conference,” reasoning that, through
the amendments to the PCRA, “the legislature has sharply restricted
a district court’s ability to consider an untimely petition for
post-conviction relief.” Because of this restriction, the court
concluded that “it does not appear that the Court had authority to
extend the limitations period when it granted Mr. Noor’s leave to
amend the Original Petition.” This conclusion was correct.
¶35 As stated above, the amendments to the PCRA and rule 65C
work to restrict a district court’s discretion to hear time-barred
petitions. Of course, this restriction would likewise extend to a
court’s ability to hear amended petitions after the limitations period
has run. Otherwise, the amendments would be useless, as petitioners
would merely amend their original petitions in order to bring new
time-barred claims before the court. So the district court correctly
held it was precluded from reviewing the merits of the Amended
_____________________________________________________________
33 UTAH R. CIV. P. 65C (2010) (advisory committee notes to the
2009 amendments).
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Petition unless the claims listed therein satisfied rule 15(c)’s
relation-back test.34
¶36 Accordingly, because the language of the PCRA, our
caselaw, and the amendments to the PCRA and rule 65C support the
district court’s application of rule 15(c) in this case, we hold that the
district court correctly concluded that it did not have discretion to
review Mr. Noor’s claims in his Amended Petition unless the claims
related back to the claims in the Original Petition under rule 15(c).
II. The PCRA’s Statute of Limitations Did Not Bar Mr. Noor’s
Claims in His Amended Petition Because These Claims
Relate Back To His Original Petition
¶37 Having established that rule 15(c) applies to PCRA petitions,
we now turn to whether the district court erred in determining that
Mr. Noor’s claims in his Amended Petition did not relate back to his
Original Petition. We hold that the court erred by applying an
overly-narrow interpretation of rule 15(c)’s relation-back test. The
proper test under Utah law is whether, under a liberal reading, the
amended pleading imports “a new and different cause of action” or
whether the amended pleading merely “expands or modifies” the
same causes of action originally pled. Because Mr. Noor’s Amended
Petition permissibly expands upon the cause of action (ineffective
assistance of counsel) he pled in the Original Petition, we hold that
his claims in the Amended Petition relate back to the date his
Original Petition was filed and therefore are not barred by the
PCRA’s statute of limitations.
¶38 Under Utah law, when “a new claim relates back to the date
of the original pleading, a party may include it even when the statute
_____________________________________________________________
34 Mr. Noor’s other arguments in regard to the district court’s
authority are also unpersuasive. Mr. Noor cites Gregg v. State, 2012
UT 32, 279 P.3d 396, for the notion that our caselaw implies that a
district court’s authority to allow an amendment under rule 65C also
includes the power to allow an untimely filing of a new claim. But no
one raised the time-bar argument in Gregg and therefore his reliance
is misplaced. Likewise, Mr. Noor cites Benvenuto v. State, 2007 UT 53,
165 P.3d 1195, for the same proposition. But Benvenuto dealt with a
PCRA petition under the pre-2008 PCRA, and we explicitly
dismissed the petitioner’s claim there because he failed to meet the
“‘interests of justice’ exception to the PCRA time bar.” Id. ¶ 27. So
Benvenuto also does not support Mr. Noor’s argument.
15
STATE v. NOOR
Opinion of the Court
of limitations has otherwise run on that claim.”35 Rule 15(c) of the
Utah Rules of Civil Procedure governs when a claim “relates back.”36
It provides that “[a]n amendment to a pleading relates back to the
date of the original pleading when . . . the amendment asserts a
claim or defense that arose out of the conduct, transaction, or
occurrence set out—or attempted to be set out—in the original
pleading.”37 Thus, in order for his claims in the Amended Petition to
survive, Mr. Noor must show that they originated out of the same
“conduct, transaction, or occurrence” set out (or attempted to be set
out) in the Original Petition.
¶39 While this court has never explicitly defined the meaning of
the terms “conduct, transaction, or occurrence,” we have consistently
held that, for purposes of rule 15(c), claims in an amended pleading
relate back to the date of the original pleading when the
“amendment . . . does not import into a case a new and different
cause of action”38 and “does not introduce a substantially new
issue.”39
_____________________________________________________________
35 James v. Galetka, 965 P.2d 567, 575 (Utah Ct. App. 1998) (Bench,
J., concurring); see also Wilcox v. Geneva Rock Corp., 911 P.2d 367, 369
(Utah 1996) (“When the statute of limitations has expired before an
amendment to a pleading is made, the amendment must relate back
to the date of the original complaint if the amendment is to be
effective.”).
36 UTAH R. CIV. P. 15(c).
37 Id.38 Behrens v. Raleigh Hills Hosp., Inc., 675 P.2d 1179, 1182 (Utah
1983).
39 Meyers v. Interwest Corp., 632 P.2d 879, 881 & n.2 (Utah 1981).
The dissent takes issue with the cases we have relied upon, arguing
that this court has never made a ruling on rule 15(c), and so, in its
view, the case before us presents a matter of first impression. While
we acknowledge that this court has never expressly defined the
meaning of the words “conduct, transaction, or occurrence,” we
certainly have established a standard as it relates to rule 15(c). As
Justice Lee notes, in Behrens, we explicitly cited to rule 15(c) in
holding that an amendment relates back when it “does not import
into a case a new and different cause of action.” 675 P.2d at 1182.
Similarly, in Hjorth v. Whittenberg, we cited to the Utah Rules of Civil
(Continued)
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¶40 But this does not mean that an amended pleading cannot
relate back when the amendment differs from the original pleading.
Relation back is proper under rule 15(c) “[w]here the amendment . . .
expands or amplifies what is alleged in the original [pleading], even
though imperfectly, in support of the cause of action.”40 In fact, we
Procedure, which had been in existence for two years at that time,
for the exact same proposition—that an amendment to a complaint
relates back when it “d[oes] not import into the case a new and
different cause of action.” 241 P.2d 907, 908 (Utah 1952). And in
Meyers, we again spoke of rule 15(c) (although we mistakenly called
it rule 15(e), which has never existed) in describing the relation back
doctrine. There, we stated that an “amendment is allowed if it does
not introduce a substantially new issue” because “[i]f no new issue is
involved[,] the notice received . . . in the original complaint is
deemed sufficient to alert [the defendant] to the need for gathering
his evidence and preparing his case.” Meyers at 881 & n.2. And
Meyers is a case we have subsequently relied upon in our discussion
of rule 15(c). See Russell v. Standard Corp, 898 P.2d 263, 265 (Utah
1995) (citing Meyers, after quoting the language of rule 15(c), for the
proposition that rule 15(c) “allows a plaintiff to cure defects in his or
her original complaint despite the intervening running of a statute of
limitations”). These cases show that rule 15(c) has been interpreted
by this court for many years, so we are not interpreting it here as a
matter of first impression.
40 Peterson v. Union Pac. R.R. Co., 8 P.2d 627, 630 (Utah 1932). The
dissent argues that our reliance on Peterson is misplaced. It first
contends that the language in Peterson we cite today has no
application to the question before us, because Peterson was decided
before Utah adopted its rules of civil procedure. See infra ¶ 76 (Lee,
A.C.J., dissenting). But the dissent misinterprets our caselaw. While
it is true Peterson was decided before rule 15(c) was formally adopted
in Utah, this court has relied upon Peterson for our interpretation of
the relation back doctrine under rule 15(c) after its adoption. See
Behrens, 675 P.2d at 1182–83 (citing both rule 15(c) and Peterson for
the assertion that an amended pleading survives a statute of
limitations bar if it does not import into the case “a new or different
cause of action” than the original pleading); Hjorth, 241 P.2d at 908
(citing Hartford Accident & Indemnity Co. v. Clegg, 135 P.2d 919, 922
(Utah 1943), which in turn cites Peterson, in addressing the relation
back doctrine under our rules of civil procedure). So we have
(Continued)
17
STATE v. NOOR
Opinion of the Court
have stated that a pleading may relate back even when the
amendment provides an additional ground for the same claim
consistently held that Peterson correctly reflects our relation back
standard under rule 15(c).
The dissent also contends that we incorrectly state the “operative
legal test” in Peterson, and so our opinion, in its view, “finds no
footing in the Peterson opinion.” See infra ¶ 74 (Lee, A.C.J.,
dissenting). Specifically, it states that the legal test set forth by the
Peterson court did not focus on whether the amended pleading
invoked a new or different cause of action or whether the
amendment merely expanded or amplified what was alleged in the
original complaint. We are perplexed by this assertion. In
determining whether Mr. Peterson’s amended complaint related
back to the date of the original complaint, we expressly defined the
legal question in the case: “[t]he question . . . is whether or not the
amended complaint states a new or different cause of action so that
the limitation intervenes and cuts off the right.” Peterson, 8 P.2d at
630. We provided that “[i]t is well established that a new or different
cause of action may not be alleged under the guise of an amendment,
. . . and also that an amendment which does not set up a new cause
of action relates back to the commencement of the action.” Id.
(citation omitted). We continued by stating that “[w]hen a cause of
action set forth in an amended pleading is new, different, and
distinct from that originally set up, there is not relation back, and the
amendment is the equivalent to the filing of a new action,” but
“[w]here the amendment merely expands or amplifies what is
alleged in the original complaint, even though imperfectly, in
support of the cause of action, it is properly allowed.” Id. And in our
conclusion, we stated that “[w]hen we compare the amendment with
the original complaint in the light of the foregoing rules, we think
there is such an identity of the cause of action as justifies us in
holding that the amendment does not state a new or different cause of
action, and therefore the limitation of time has not run against the
cause of action stated therein.” Id. (emphasis added). Clearly the
operative test in Peterson was whether an amended pleading set forth
a new cause of action or whether it was merely an expansion of the
original claim. And the fact that the Peterson court admitted that this
test is sometimes difficult to apply does not, as the dissent suggests,
mean that the court invoked a different test. So Peterson does support
our holding today.
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resulting from the same injury.41 Thus, when the issue presented in
the amendment is sufficiently related to the issue presented in the
first claim so as to be reasonably construed as an expansion or
modification of the first claim, rule 15(c) is satisfied.
¶41 Prohibiting new causes of action, while at the same time
permitting expansions and modifications in amendments, gives
effect to rule 15(c)’s general purpose. Rule 15 “provides liberally for
[the] amendment of pleadings and supplemental pleadings to the
end that litigation may be disposed of on the merits.”42 In this vein,
rule 15(c) “allows a plaintiff to cure defects in his or her original
complaint despite the intervening running of a statute of
limitations.”43 This means that we will liberally construe
amendments to pleadings when conducting our relation-back
analysis in order to “permit[] a complete adjudication of the matters
in controversy.”44 This is especially true “where there is reasonable
ground for holding that the amendment is an amplification of
allegations already stated.”45
¶42 Additionally, “[t]he rationale of . . . Rule 15(c) is that a party
who has been notified of litigation concerning a particular
occurrence has been given all the notice that statutes of limitations
_____________________________________________________________
41 See Behrens, 675 P.2d at 1182 (“Even the setting forth of ‘an
additional ground of negligence as the cause of the same injury’ is
not a new cause of action.” (citation omitted)).
42 Behrens, 675 P.2d at 1182 (citation omitted); see also Peterson, 8
P.2d at 630 (“[A] pleading should be liberally construed with a view
to substantial justice between the parties.”); Johnson v. Brinkerhoff, 57
P.2d 1132, 1136 (Utah 1936) (holding that the relation back doctrine
works “toward liberality in allowance of amendments to pleadings
for the purpose of permitting a complete adjudication of the matters
in controversy and in furtherance of justice”) (overruled on other
grounds by statue as stated in Allred v. Educators Mut. Ins. Ass’n of Utah,
909 P.2d 1263 (Utah 1996)).
43Donjuan v. McDermott, 2011 UT 72, ¶ 14, 266 P.3d 839 (quoting
Russell v. Standard Corp., 898 P.2d 263, 265 (Utah 1995)).
44 Johnson, 57 P.2d at 1136.
45 Peterson, 8 P.2d at 630.
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STATE v. NOOR
Opinion of the Court
were intended to provide.”46 So analysis under rule 15 also typically
involves an “inquir[y] into whether the opposing party has been put
on notice regarding the [amended] claim.”47 This means that an
amended pleading may relate back as long as the parties in an action
have been reasonably put on notice of the new claims before the
statute of limitations has expired.48 This is done to “safeguard the
rights of the other party to have a reasonable time to meet a new
issue if he so requests.”49 Accordingly, rule 15(c) works to “strike a
balance between the policy of deciding a case on its merits and
allowing a party to enjoy the benefits [(notice)] of the statute of
limitations.”50
¶43 Below, the district court did not rely on our caselaw in its
rule 15(c) determination. Instead, it relied on federal law interpreting
rule 15(c)’s relation-back test.51 Citing Mayle v. Felix,52 the court held
that a new pleading relates back under rule 15(c) only when both
“the original and [new claims] are tied to a common core of
operative facts.”53 The court reasoned that the new claims in the
_____________________________________________________________
46 2010-1 RADC/CADC Venture, LLC v. Dos Lagos, LLC, 2017 UT
29, ¶ 18, 408 P.3d 313 (citation omitted).
47 6A Charles Alan Wright et al., Federal Practice & Procedure
§ 1497 (3d ed. 2010).
48 Cheney v. Rucker, 381 P.2d 86, 91 (1963) (“What [parties] are
entitled to [under our rules] is notice of the issues raised and an
opportunity to meet them. When this is accomplished, that is all that
is required.”).
49 Id.50 Dos Lagos, 2017 UT 29, ¶ 18.
51 The dissent’s opinion likewise suffers from this same
shortcoming. Although the dissent argues extensively that our
caselaw does not support the legal standard we articulate today, it
does not make any attempt to square its own proposed standard
with that caselaw. Instead, the dissent eschews the standard we have
employed for nearly seventy years—since the codification of rule
15(c) in 1950—in favor of a federal standard that did not exist, even
in federal courts, at the time of the rule’s adoption.
52 545 U.S. 644 (2005).
53 Id. at 664.
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Amended Petition did not arise from the same factual allegations as
the Original Petition, noting that “[w]hile the Original Petition does
mention Mr. Noor’s difficulty speaking and understanding English,
the Original Petition does not discuss any problems with the
interpreters at trial or in Mr. Noor’s communication with counsel.”
And it explained that “the Original Petition only alludes to
Mr. Noor’s difficulty with the English language in connection with
the claim that Mr. Noor could not have formed the intent necessary
to have committed the underlying crimes.” Operating under this
standard, the court concluded that “it cannot reasonably be inferred
that the allegations and claims in the Amended Petition are based on
the same operative facts and claims as the Original Petition.”
¶44 Mr. Noor claims this was error. He asserts that the district
court should have interpreted rule 15(c) more liberally because he
filed his petition pro se and rule 15(a) provides that courts “should
freely give permission” to parties to amend their pleadings “when
justice requires.”54 He additionally argues that the district court’s
narrow interpretation of a “transaction” or “occurrence” under rule
15(c) in this circumstance would “hobbl[e] counsel” and would
unfairly harm “poor prisoners who need appointed counsel,” but do
not receive counsel until after the limitations period has run.55
¶45 Alternatively, he argues that his claims in the Amended
Petition relate back even if Mayle does reflect the relation-back test
under Utah law. Specifically, he contends that his claims in both the
Original and Amended Petitions arise from a common core of
operative facts because the “lack of English Fluency and his
counsel’s failure to adequately address this language barrier is the
core of the ineffective assistance of counsel claims in his original and
amended petition.” He therefore claims that had the district court
construed the factual allegations in his Original Complaint liberally,
as required under rule 15, it would have allowed the amended
claims to be heard.
¶46 Conversely, the State argues that rule 15(c) should be
interpreted narrowly. Like the district court, it relies on the majority
opinion in Mayle v. Felix, which interpreted the federal analog to rule
15(c) to allow relation back only when the claims added by
amendment “arise from the same core facts as the timely filed
_____________________________________________________________
54 See UTAH R. CIV. P. 15(a).
55 See Mayle, 545 U.S. at 675–76 (Souter, J., dissenting).
21
STATE v. NOOR
Opinion of the Court
claims,” and not when “the new claims depend upon events separate
in ‘both time and type’” from the original episode.56 The State argues
that Mr. Noor’s amended claims “shared no common core of
operative facts with the claims raised in his original petition.” We
disagree.
¶47 While the standard articulated in Mayle may be
informative,57 as discussed above, we have consistently held that for
purposes of rule 15(c) new claims in an amended pleading relate
back to the date of the original pleading when the “amendment . . .
does not import into a case a new and different cause of action,” 58
_____________________________________________________________
56 Id. at 656–57 (citation omitted).
57 In Mayle, a majority of the United States Supreme Court
rejected the Seventh and Ninth Circuits’ interpretation of “conduct,
transaction, or occurrence” as meaning the new claim must stem
from the same “trial, conviction, or sentence,” and adopted the rule
in the majority of jurisdictions that interpret the language of rule
15(c) of the Federal Rules of Civil Procedure as allowing relation
back “only when the claims added by the amendment arise from the
same core facts as the timely filed claims.” 545 U.S. at 657. We have
not expressly adopted the “common core of operative facts”
provision from Mayle and we do not do so here. While we have
stated that “[i]nterpretations of the Federal Rules of Civil Procedure
are persuasive where the Utah Rules of Civil Procedure are
‘substantially similar,’” Tucker v. State Farm Mut. Auto. Ins. Co., 2002
UT 54, ¶ 7 n.2, 53 P.3d 947, we have not stated that such
interpretations are dispositive. Because it is well established in our
caselaw that we look to the cause of action, and whether, under a
liberal reading, the amendment can be said to expand or modify the
original cause of action stated, there is no need to import this
interpretation into our caselaw.
58 Behrens, 675 P.2d at 1182. The dissent asserts that Behrens does
not support the standard we articulate today. Specifically, it argues
the Behrens court did not endorse a standard that focuses on whether
the cause of action in the amended pleading is generally the same as
in the original pleading in order for an amendment to relate back. See
infra ¶ 79 (Lee, A.C.J., dissenting). But that is exactly what Behrens
said. There, the defendant argued that “the claim for punitive
damages is a new claim for relief that is barred by the statute of
limitations.” 675 P.2d at 1182 (emphasis added). Rather than dismiss
(Continued)
22
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but instead “merely expands or amplifies what is alleged in the
original [pleading].”59 This means that the cause of action or claim
the defendant’s argument for failing to focus on the “correct” legal
standard, as the dissent suggests it did, the court clearly accepted
this test as the operative legal test for relation back under rule 15(c),
holding that “an amendment to include damages does not import into
a case a new and different cause of action.” Id. (emphasis added). It then
went on to note that even the setting forth of “an additional ground
of negligence as the cause of the same injury is not a new cause of
action.” Id. (emphasis added) (internal quotation marks omitted).
And because it concluded that the punitive damages claim was not a
new or different cause of action than the one asserted in the original
pleading, it held that the statute of limitations did not apply. Id. So
contrary to what the dissent argues, the Behrens court did focus on
whether the amended complaint asserted a new or different cause of
action, or whether it instead merely asserted the same cause of
action.
The dissent also asserts that the operative test provided by the
Behrens court was whether the proposed amendment to the
complaint “raise[s] no new legal issues” and “does not refer to new
or different acts of misconduct.” Infra ¶ 78 (Lee, A.C.J., dissenting)
(quoting id.). But the Behrens court looked only at whether there were
different acts of misconduct for purposes of the notice of intent to
sue, a prerequisite to sue a healthcare provider under the
predecessor to Utah Code section 78B-3-412. That statute states that a
plaintiff must provide a healthcare provider with notice that he or
she intends to sue 90 days before commencing a formal action. As
part of this requirement, a plaintiff must include within the notice
“specific allegations of misconduct on the part of the prospective
defendant.” UTAH CODE § 78B-3-412(2)(e). In Behrens, the defendant
argued, in addition to his rule 15(c) argument, that the plaintiff had
failed to satisfy the statutory notice of intent to sue requirement. It
was only in reviewing this second argument that the court stated
that “[t]he proposed amendment to the complaint does not refer to
new or different acts of misconduct.” Behrens, 675 P.2d at 1183. So
the court’s focus on the “misconduct” asserted in the original
complaint pertained only to the notice requirement under the Utah
Code, not rule 15(c). The “misconduct” standard the dissent relies
upon from Behrens was not the operative legal standard for rule
15(c).
59 Peterson, 8 P.2d at 630.
23
STATE v. NOOR
Opinion of the Court
asserted must generally be the same in both pleadings, and the issue
presented in the amendment must factually relate to the issue
presented in the first pleading.60 We reaffirm this standard as our
relation-back test. Thus, an amendment arises out of the same
“conduct, transaction, or occurrence” when it arises out of the same
cause of action and alleges the same kind of factual basis as the
original allegation.61 Under a liberal reading of the Amended
Petition, Mr. Noor meets this test.
_____________________________________________________________
60 See, e.g., Dos Lagos, 2017 UT 29, ¶ 18 (“Rule 15(c) is based on the
notion that once litigation involving particular conduct or a given
transaction or occurrence has been instituted, the parties are not
entitled to the protection of the statute of limitations against the later
assertion by amendment of defenses or claims that arise out of the
same conduct, transaction, or occurrence as set forth in the original
pleading.” (citation omitted)); Johnson, 57 P.2d at 1137 (holding that
relation back was proper when the plaintiffs changed the instrument
it relied upon for its water right claim from a contract to a deed in
the amended petition because “[b]oth pleadings relate to the same
subject-matter [(water)], the same transaction, and damages for the
same wrong.”).
61 The dissent takes issue at length with the language we invoke
in our articulation of the relation back standard—particularly with
our assertions that rule 15(c) requires the issue presented in the
amendment to be “based on factual allegations that ‘expanded upon
the factual basis’ of the original pleading.” See infra ¶ 68 (Lee, A.C.J.,
dissenting). In the dissent’s view, our standard is “incompatible”
with the text of Rule 15(c). Infra ¶ 69 (Lee, A.C.J., dissenting). So, in
order to avoid our “fuzzy standard,” Infra ¶ 99 (Lee, A.C.J.,
dissenting), the dissent chooses to “focus on the factual
circumstances giving rise to the claim,” infra ¶ 105 (Lee, A.C.J.,
dissenting), and endorse a line of federal cases holding that “relation
back is allowed ‘only when the claims added by amendment arise
from the same core of facts as the timely filed claims.’” Infra ¶¶ 94
(Lee, A.C.J., dissenting) (citation omitted). But the dissent has
essentially endorsed the same standard we set forth today. There is
little, if any, distinction between requiring an amendment to
“allege[] the same kind of factual basis as the original petition” and
requiring that the amendment “arise from the same core of facts.”
This is just a preference in word choice. Both standards contain the
(Continued)
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¶48 Here, Mr. Noor did not assert a new or different cause of
action in his Amended Petition. In his Original Petition, he listed
“[d]enial of effective assistance of trial counsel” as the first of three
claims for which he believes he was entitled to post-conviction relief.
Then, in his Amended Petition, he alleged his trial counsel’s
ineffectiveness as his sole claim (although with different variations
of grounds for that claim) for relief. But in changing the grounds, he
did not change the legal theory asserted in his Original Petition, nor
did he introduce a substantially different legal issue. He therefore
has not asserted a new or different cause of action.62
¶49 But this is not enough to satisfy rule 15(c). Mr. Noor must
also show that his amendment may be reasonably construed as an
expansion or modification of the original claim brought. In other
words, he must show that the factual basis of the amended claim is
sufficiently similar to the factual basis of the claim brought in the
first case. And he has.
same requirement that we focus on the factual circumstances giving
rise to the claim.
Here, Mr. Noor has asserted the same core fact in both his
Petitions—that his counsel failed to present argument based on his
inability to understand English. The dissent parses this fact further,
drawing a distinction between how counsel’s failure to argue that
Mr. Noor’s inability to understand English affected his interactions
with the victim, as opposed to his interactions with his counsel. Infra
¶¶ 64–65 (Lee, A.C.J., dissenting). This core fact could, no doubt, be
parsed even further. But this is not what rule 15(c), nor our caselaw,
demands. Rather, these authorities mandate that we read
amendments liberally. See supra ¶¶ 41–45.
62 The dissent also criticizes our focus on whether a “new and
different cause of action” is asserted in the amended pleading.
Specifically, it argues that we are incorrectly limiting amendments
permissible under rule 15(c) to those that assert the same “legal
theory” as the original pleading. See infra ¶¶ 68 n. 73, 101 (Lee,
A.C.J., dissenting). But we have not suggested this. Rather, we view
the demand that the cause of action be the same in both pleadings as
a practical, rather than literal, requirement. This means an amended
pleading need not contain the exact same legal theory to relate back
to the date of the original pleading. But we note that when the
amended pleading contains an identical legal theory as the original,
this certainly weighs in favor of relation back.
25
STATE v. NOOR
Opinion of the Court
¶50 Mr. Noor’s amended claim, when construed liberally,
expands and amplifies the claim brought in the Original Petition. In
his Original Petition, he identified several grounds for his ineffective
assistance of counsel claim. Specifically, he claimed that his trial
counsel was ineffective because, among other reasons, counsel did
not “br[ing] to the trial court’s attention the fact that [Mr. Noor’s]
cultural background prevented him from forming the requisite
intent,” and counsel failed to “br[ing] to the court’s attention that
[Mr. Noor’s] lack of fluency of English impaired his ability to
understand the victim’s demands that he stop his advances.” In his
Amended Petition he altered these grounds, alleging that trial
counsel was ineffective because counsel “fail[ed] to seek a competent
interpreter for Mr. Noor at trial” and failed to “let Mr. Noor aid in
his own defense.”63 In raising these new grounds, he argued that he
“had a difficult time understanding the translation at trial,” that he
“did not even understand his accuser’s testimony against him,” and
that his counsel “should have . . . ma[d]e sure that Mr. Noor
understood” both “the police report” and “what was happening at
trial . . . so that Mr. Noor could aid in his own defense.”
¶51 While the new grounds listed in the Amended Petition are
not identical to those in the Original, when read liberally,64 they are
sufficiently related to the grounds set forth in the Original.
Mr. Noor’s focus in his Amended Petition on counsel’s failure to
obtain a competent translator and failure to ensure Mr. Noor
understood those speaking at trial can be reasonably construed as an
expansion of his allegation in the Original Petition that his counsel
_____________________________________________________________
63 Mr. Noor also claimed in his Amended Petition that trial
counsel was ineffective because he “fail[ed] to advise Mr. Noor of
the risk of deportation if a jury found him guilty.” But he conceded
at oral argument that this ground does not relate back under rule
15(c). We therefore do not address it here.
64 A liberal reading of Mr. Noor’s claims is not only supported by
rule 15, but is also supported by the fact that he is pro se. We have
stated that a party acting pro se “should be accorded every
consideration that may be reasonably indulged” because “of his lack
of technical knowledge of law and procedure.” State v. Winfield, 2006
UT 4, ¶ 19, 128 P.3d 1171 (citation omitted). “Accordingly, this court
generally is lenient with pro se litigants.” Lundahl v. Quinn, 2003 UT
11, ¶ 4, 67 P.3d 1000.
26
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was ineffective in failing to alert the court to his lack of fluency of
English. Mr. Noor’s claim in the Original Petition focused on trial
counsel’s failure to present an adequate defense on his behalf, a
defense that hinged in large part on his inability to understand
English and upon his cultural differences. In his Amended Petition,
he expanded upon this factual basis, arguing that his counsel should
have secured competent interpreters so that he could effectively
defend against the allegations he faced. The State was therefore
placed on notice that Mr. Noor was alleging ineffective assistance of
counsel based upon counsel’s failure to appreciate and highlight
Mr. Noor’s inability to understand English. Because Mr. Noor’s
amended claim, when construed liberally, is reasonably related to
the claim he asserted in the Original Petition, it relates back for
purposes of rule 15(c).
¶52 The dissent believes that the claim Mr. Noor raised in his
Amended Petition did not arise out of the conduct, transaction, or
occurrence alleged in the Original Petition. Instead, it contends that
Mr. Noor’s new claims “arose from an occurrence that was ‘distinct
in time and place’ from that alleged in the [original] petition” and
dealt with a different “actor.”65 We disagree. In both petitions,
Mr. Noor alleged that his trial counsel was ineffective at trial for
failing to argue the significance of his inability to understand
English. In other words, Mr. Noor alleged in both petitions the same
actor (his trial counsel), the same cause of action (ineffective
assistance of counsel), the same time and place (his trial), and the
same grounds for his cause of action (his inability to understand
English). His amended claim was not distinct in time, place, or actor.
So even under the dissent’s proposed standard Mr. Noor’s claims
survive.
¶53 Further, the dissent completely fails to take into account the
full language of rule 15(c). Rule 15(c) states that not only will an
amendment relate back to the date of the original pleading when the
amendment asserts a claim that arose out of the conduct, transaction,
or occurrence set out in the original pleading, but that an
amendment will also relate back when the claim asserted “arose out
of the conduct, transaction, or occurrence . . . attempted to be set out . . .
in the original pleading.”66 The dissent does not adequately account
_____________________________________________________________
65 Infra ¶¶ 67–68 (Lee, A.C.J., dissenting).
66 Utah R. Civ. P. 15(c)(2) (emphasis added).
27
STATE v. NOOR
Opinion of the Court
for this language in its opinion.67 But this language is as much a part
of the rule as the “set out” language the dissent relies upon for its
argument. The inclusion of the words “attempted to be set out”
suggests that a party need not perfectly set out the conduct,
transaction, or occurrence at issue in the original complaint, but
must show only that the conduct, transaction, or occurrence
referenced in the original petition was an attempt to set out the
occurrence pled in the amended petition. In other words, the
language of rule 15(c) itself requires a liberal reading of an
amendment.
¶54 Here, Mr. Noor clearly “attempted to . . . set out” that his
counsel was deficient at trial for failing to present argument based
upon his inability to understand English. While the Original Petition
may not have perfectly “set out” the conduct, transaction, or
occurrence he would later set out in his Amended Petition, it seems a
stretch to argue that he (as a pro se litigant who does not understand
English) failed to even “attempt to . . . set out” the conduct,
transaction, or occurrence set forth in his Amended Petition. His
Original Petition contained the same actor, the same legal theory, the
same time and place, and the same underlying basis for that theory.
So when the rule is read in its entirety, Mr. Noor’s claim in his
Amended Petition relates back.
¶55 We have repeatedly reinforced this liberal reading
requirement. We have stated that “Rule 15 provides liberally for
amendment of pleadings and supplemental pleadings to the end that
litigation may be disposed of on the merits.”68 We have also held
that “rule 15 should be interpreted liberally so as to allow parties to
have their claims fully adjudicated.”69 We have therefore made it
clear that we should read both rule 15 and the amendments made
thereunder liberally.
¶56 But the dissent fails to do so. Instead, it reads rule 15(c)
strictly, arguing that because Mr. Noor did not specifically affix the
fact that he did not understand English to his trial counsel’s
_____________________________________________________________
67 See infra ¶¶ 61, 76, 99 (Lee, A.C.J., dissenting).
68 Behrens, 675 P.2d at 1182 (citation omitted); see also Peterson, 8
P.2d at 630 (“[A] pleading should be liberally construed with a view
to substantial justice between the parties.”).
69 Timm v. Dewsnup, 851 P.2d 1178, 1183 (Utah 1993).
28
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interaction with himself, but instead affixed it to his interaction with
the victim of his crime, he cannot meet rule 15(c)’s standard. In so
doing, the dissent contradicts our caselaw and the liberal reading
requirement mandated by rule 15 itself.70
¶57 The dissent also fails to assign any weight to the fact that
Mr. Noor is a Somalian immigrant who has difficulty understanding
English, that he filed his Original Petition pro se, and that, despite
his best efforts to alert the court to his inability to read and write in
English, he was unable to secure counsel until well after the
limitation period had run on his PCRA claim. As mentioned above,
we have always been lenient to pro se litigants because of their lack
of knowledge of law and procedure.71 We accordingly grant pro se
litigants “every consideration that may reasonably be indulged.”72
This is particularly true where the party amending the original
pleading cannot even understand the language needed to effectively
represent him or herself. So under our lenient pro se standard
Mr. Noor’s new claims should likewise survive.
¶58 Because a liberal reading of his Amended Petition is
mandated by rule 15(c), our caselaw, and Mr. Noor’s pro se status,
we should not read rule 15(c) in the overly-narrow fashion suggested
by the dissent. Instead, we should read it liberally. And under such a
reading, his new claims arise out of the conduct, transaction, or
occurrence he attempted to set forth in his Original Pleading. His
claim therefore relates back to the date of his Original Pleading
under rule 15(c).73
¶59 Accordingly, we remand this case to the district court for
further proceedings consistent with our ruling.
_____________________________________________________________
70See UTAH R. CIV. P. 15(a)(2) (stating that a “court should freely
give permission [to a party to amend his or her petition] when justice
requires”).
71 See Lundahl, 2003 UT 11, ¶¶ 3–4.
72 Winfield, 2006 UT 4, ¶ 19 (citation omitted).
73 In its final critique, the dissent argues that our holding today
“sets a new course for our law under rule 15(c)” and is “sure to bring
unrest and uncertainty to this important area of Utah procedure.”
Infra ¶ 104 (Lee, A.C.J., dissenting). But we have merely applied to
the case at hand the standard our court has used for almost a
century. See Behrens, 675 P.2d at 1182; Peterson, 8 P.2d at 630.
29
STATE v. NOOR
A.C.J. Lee, dissenting
Conclusion
¶60 We hold that rule 15(c) of the Utah Rules of Civil Procedure
applies to amended PCRA petitions filed after the one-year
limitations period. Both the language of the PCRA and our caselaw
support such a reading. Further, the amendments to the PCRA and
rule 65C illustrate that a district court’s broad discretion to grant
amendments to PCRA petitions has been limited. Additionally, we
hold that the district court erred in its rule 15(c) determination.
Mr. Noor did not allege a different cause of action in his Amended
Petition. Rather, when his Amended Petition is viewed liberally, it is
clear that he merely expanded on his claim that counsel was
ineffective for not presenting argument based on his inability to
understand English. We therefore reverse the district court’s
relation-back determination and remand for proceedings consistent
with this opinion.
ASSOCIATE CHIEF JUSTICE LEE, dissenting:
¶61 Rule 15(c) states that “[a]n amendment to a pleading relates
back to the date of the original pleading when . . . the amendment
asserts a claim or defense that arose out of the conduct, transaction,
or occurrence set out . . . in the original pleading.” UTAH R. CIV. P.
15(c)(2). The key question presented here concerns the meaning of
“conduct, transaction, or occurrence.” The majority treats this
question as a matter dictated by our precedent, particularly Behrens
v. Raleigh Hills Hosp., Inc., 675 P.2d 1179 (Utah 1983), and Peterson v.
Union Pac. R.R. Co., 8 P.2d 627 (Utah 1932). See supra ¶¶ 39–40, 47. It
says that these cases call for relation back of an amended claim when
it is based on the same legal theory as that alleged in an earlier
pleading and “expand[s] upon [the] factual basis” giving rise to that
complaint. Supra ¶¶ 47, 51.
¶62 I disagree. The cited cases do not support the standard
announced by the majority. None of our cases attempt to interpret—
or even quote or paraphrase—the operative text of rule 15(c). So the
question presented here is a matter of first impression. And the
standard called for by the text of the rule is different from that
adopted by the court.
¶63 I would interpret the “conduct, transaction, or occurrence”
standard in light of a body of federal case law clarifying the meaning
of this legal term of art (which our Utah rule borrowed from the
Federal Rules of Civil Procedure). And I would affirm the district
court’s decision granting the State’s motion to dismiss Osman Noor’s
30
Cite as: 2019 UT 3A.C.J. Lee, dissenting
amended PCRA petition because his new claim for ineffective
assistance of counsel arises out of an entirely distinct transaction or
occurrence from that which gave rise to his initial set of claims.
¶64 The claim in Noor’s original petition arose out of the
allegation that his Somali background and “lack of fluency in
English” “prevented him from forming the requisite intent to
commit lewdness or forcible sexual abuse” and “impaired his ability
to understand the victim’s demands that he stop his advances.”
Noor asserted that no reasonably competent attorney would have
failed to assert a mens rea defense in these circumstances. So the
relevant “transaction” giving rise to Noor’s earlier claim was his
lawyer’s failure to appreciate the culture and language barriers to
Noor’s interactions with the victim of his crimes.
¶65 This was not the “transaction” giving rise to Noor’s
amended claim. That claim arose out of his counsel’s failure to
appreciate the language barriers to Noor’s interactions with his
attorney. That is a distinct transaction. It may arise out of “expanded”
factual circumstances related to the earlier claim. But rule 15(c)
requires more than a vague notion of factual expansion. It calls for
relation back only where both sets of claims arise out of the same
conduct, transaction, or occurrence set forth in the original
complaint.
¶66 I respectfully dissent because I think the district court was
right to deny Noor’s motion for leave to amend. And I write
separately to highlight some problems that will result from the
majority’s reformulation of the standard that governs relation back
under civil rule 15(c).
I. The Majority’s Standard
¶67 The majority seeks to trace its relation back standard to a
“consistent[]” line of precedent from this court. Supra ¶ 47. Citing
Behrens v. Raleigh Hills Hosp. Inc., 675 P.2d 1179 (Utah 1983), and
Peterson v. Union Pac. R.R Co., 8 P.2d 627 (Utah 1932), the court says
that “it is well established in our caselaw that we look to the cause of
action” stated in the original pleading and ask “whether, under a
liberal reading,” a proposed amendment “can be said to expand or
modify the original cause of action stated.” Supra ¶ 47 n.57.
¶68 Based on these cases, the majority holds that an amendment
relates back to the date of an original pleading “when the
31
STATE v. NOOR
A.C.J. Lee, dissenting
‘amendment . . . does not import into a case a new and different
cause of action,’ but instead ‘merely expands or amplifies what is
alleged in the original [pleading].’”74 Supra ¶ 47 (alterations in
original). And it states that “an amendment arises out of the same
‘conduct, transaction, or occurrence’ when it arises out of the same
cause of action,” supra ¶ 47, as that alleged in the original pleading
and is based on factual allegations that “expanded upon the factual
basis” of the original pleading. Supra ¶ 51.
¶69 I disagree with the majority’s standard and its application of
our case law. Our cases have never interpreted the language of rule
15(c). So we should begin by interpreting the operative text. That text
is incompatible with the majority’s standard. Instead of asking
whether the amended pleading “expand[s] upon [the] factual basis”
of the earlier one, the rule requires that both claims arise from the
same “conduct, transaction, or occurrence.” The majority’s standard
is likewise incompatible with our case law. And the cases cited by
the majority do not support its proposed standard.
A. Peterson v. Union Pacifiic Railroad Co.
¶70 The seminal Utah case is Peterson v. Union Pacific Railroad
Co., 8 P.2d 627 (Utah 1932). The Peterson case involved tort claims
asserted by the estate of John Peterson against his employer, Union
Pacific Railroad Company. Peterson was killed while working to
clear rocks off of a railroad track. Id. at 628. His estate filed a
complaint asserting negligence claims under the Federal Employers’
Liability Act, 45 U.S.C. §§ 51-59. Id. The original complaint was
timely—within the two-year statute of limitations set forth in the
federal statute. Id. But the estate later sought to file an amended
complaint beyond the limitations period. Id. Union Pacific sought
_____________________________________________________________
74 The majority seems to try to walk this back at a couple of places
in the opinion. In footnote 62, for example, the court says that it has
“not suggested” that it is “limiting amendments permissible under
rule 15(c) to those that assert the same ‘legal theory’ as the original
pleading.” Supra ¶ 48, n.62. Fair enough. The court doesn’t strictly
limit amendments under rule 15 to those based on the same legal
theory. But it certainly highlights this as a factor of relevance to its
analysis. See supra ¶ 48 (noting Noor “did not change the legal
theory” from his original petition); id. ¶ 54 (listing “same legal
theory” as a factor weighing in favor of relation back). And I see no
basis for that in rule 15(c).
32
Cite as: 2019 UT 3A.C.J. Lee, dissenting
dismissal of the amended pleading on the ground that it “set[] out an
entirely new act of negligence or cause of action,” and was therefore
time-barred. Id. at 628.
¶71 We concluded that the amended negligence claim related
back to the date of the original complaint. And in so doing we stated,
as the majority notes, that an amendment that “merely expands or
amplifies what is alleged in the original complaint” is “properly
allowed.” Id. at 630 (citations omitted). But this was not the
articulation of an operative legal test (and it could not have been an
interpretation of rule 15(c), which was not in existence at the time of
this decision).75 It was merely a statement of the court’s holding. The
court emphasized, moreover, that “[t]he cases are in considerable
conflict” in their attempt to articulate a governing standard for
distinguishing new claims from mere expansions of existing ones. Id.
And the court’s ultimate holding turned on the fact that both sets of
negligence claims arose out of the same transaction or occurrence. Id.
at 630-31.
¶72 Peterson was killed by a rock that fell from a cliff or ledge
above the part of the track where he was clearing rocks. That much
was undisputed. But the precise source of the falling rock was
unknown. The initial (timely) “complaint proceeded on the theory
that the rock fell from the overhanging ledge left upon excavation of
the right of way out of the mountain side.” Id. at 629. The amended
(untimely) complaint, on the other hand, “proceeded upon the
theory that the rock rolled down the mountain side from above the
precipitous ledge.” Id. And this difference yielded somewhat
different sets of allegations of the nature of the railroad’s
negligence—with the original complaint focusing on an alleged
“failure to provide a safe place to work” and failure to inspect or
warn of falling rocks or that no inspection had been made, and the
_____________________________________________________________
75 The “conduct, transaction, or occurrence” test was first
introduced as a matter of federal procedure in 1937, when the
Federal Rules of Civil Procedure were adopted. FED. R. CIV. P.,
Historical Note (2012). And the test was first imported into Utah law
in 1950, when we adopted the first version of our Utah Rules of Civil
Procedure. See UTAH R. CIV. P. 15(c) (1950) (“Whenever the claim or
defense asserted in the amended pleading arose out of the conduct,
transaction, or occurrence set forth or attempted to be set forth in the
original pleading, the amendment relates back to the date of the
original pleading.”).
33
STATE v. NOOR
A.C.J. Lee, dissenting
amended complaint abandoning the “acts of negligence respecting
the ledge” while “retain[ing] and amplif[ying]” the failure to warn
allegation as “applied to rocks rolling down the mountain side.” Id.
at 630.
¶73 We concluded that the amended complaint asserted a claim
that “merely expand[ed] or amplifie[d] what [was] alleged in the
original complaint.” Id. But we emphasized the “difficulty” of
distinguishing new claims from mere expansions of existing ones. Id.
And we based our decision on the fact that “the transaction alleged
in the amendment is the same as in the original complaint”—in that
“[t]he accident is the same, the person killed [is] the same, the
manner in which the rock struck the deceased is the same, the time
and circumstances the same except that in the first complaint it was
alleged that the rock fell from the top or face of the cliff rather than
farther up the mountain side.” Id. In other words, we said that a
mere change in theory as to the “place from which” the rock fell
“does not essentially change the character of the action, nor state a
new or different cause of action.” Id. at 631. We held that “[i]t would
be too narrow and technical a construction to hold that this is an
entirely new and different cause of action from the one stated in the
original complaint.” Id.
¶74 The majority opinion accordingly finds no footing in the
Peterson opinion. Peterson does not say that an amended claim relates
back when it “arises out of the same cause of action” and “expand[s]
upon th[e] factual basis” of the original pleading. Supra ¶¶ 47, 51. It
requires that both claims arise out of the same transaction. Peterson, 8
P.2d at 630 (noting that “an amplification of allegations already
stated” may be permitted “where the transaction alleged in the
amendment is the same as in the original complaint”) (emphases
added)).
¶75 The Peterson opinion admittedly speaks in terms of a
distinction between “new” claims and those that merely “expand”
on existing ones. But it also emphasizes that line-drawing in this area
is “difficult.” And its holding ultimately turns on the fact that the
two sets of claims in the case arise out of the same transaction or
occurrence (and not merely that they make factual allegations that
expand on the original pleading).
¶76 To the extent Peterson articulates a test that speaks of new
claims versus existing ones, it is at odds with the text of Rule 15(c).
Peterson was handed down well before our adoption of the Utah
Rules of Civil Procedure. And the question presented in this case
concerns the meaning of the “conduct, transaction, or occurrence”
34
Cite as: 2019 UT 3A.C.J. Lee, dissenting
test set forth in Rule 15(c). Because that rule was adopted well after
Peterson, we cannot cite that case as establishing a controlling
precedent under the rule.76
B. Behrens v. Raleigh Hills Hospital, Inc.
¶77 The next case cited by the majority is Behrens v. Raleigh Hills
Hospital, Inc., 675 P.2d 1179 (Utah 1983). Behrens is a wrongful death
case against a hospital. The decedent was admitted for treatment for
alcohol abuse at the defendant hospital and was given a razor when
he asked to be allowed to shave. Id. at 1181. He then killed himself
with the razor. His estate sued the hospital for wrongful death and
received a judgment for $100,000 in a jury trial. Id. The trial court
granted a motion for new trial, however, based on the failure to give
a jury instruction for comparative negligence. Id. At that point the
plaintiff sought to amend the complaint to add a claim for punitive
damages. Id. The defendant asserted “that the claim for punitive
damages [was] a new claim for relief that [was] barred by the statute
of limitations.” Id. at 1182.
¶78 This court rejected that argument. We held that “an
amendment to include damages does not import into a case a new
and different cause of action,” and thus concluded that the punitive
damages claim related back to the date of the original complaint. Id.
(citations omitted). In so holding we cited rule 15(c), which was then
in effect. See id. at 1183. But we did not quote the operative language
of the rule or offer any interpretation of it. Instead we relied on
precedent in Utah and elsewhere holding that a request for punitive
_____________________________________________________________
76 The majority seeks to avoid this problem by asserting that our
subsequent cases have somehow transformed the Peterson standard
into an interpretation of a rule promulgated decades later. See supra
¶ 39 nn.38,39 (citing Behrens v. Raleigh Hills Hosp., Inc., 675 P.2d 1179,
1182 (Utah 1983); Hjorth v. Whittenburg, 241 P.2d 907, 908 (Utah
1952)). But I see nothing in the cited cases to support that view. In
Behrens we made no attempt to analyze Peterson. See Behrens, 675
P.2d at 1183. Nor did we engage with—much less analyze—the text
of Rule 15(c). Id. So I see no way to read our passing reference to
Peterson as a decision to “rel[y] upon Peterson for our interpretation”
of rule 15(c). The Hjorth case provides even less support for the
majority’s view. I find no reference to Peterson whatsoever in Hjorth.
35
STATE v. NOOR
A.C.J. Lee, dissenting
damages relates back where it “raise[s] no new legal issues” and
“does not refer to new or different acts of misconduct.” Id.
¶79 Behrens does not support the majority’s new standard.
Nowhere does the court endorse the view that a claim in an
amended pleading relates back when it “arises out of the same cause
of action” and is a factual expansion of allegations in that pleading.
Supra ¶ 47. The two claims in Behrens, in fact, were in some sense
distinct: “The proposed amendment to the complaint [did] not refer
to new or different acts of misconduct; rather, the amendment
relie[d] upon a different legal characterization of the same
conduct”—in extending the initial allegation that the defendant’s
conduct was “negligent” to include an allegation that it was also
“‘grossly negligent’ or reckless.” 675 P.2d at 1183.
II. My Approach
¶80 For reasons explained above this case presents a question of
first impression. Because our cases have never interpreted the
“conduct, transaction, or occurrence” standard in rule 15(c) we
should start with first principles. Those principles begin with the
language of the rule. See Olsen v. Eagle Mountain City, 2011 UT 10,
¶ 9, 248 P.3d 465. And the operative text says that an amended claim
relates back when it arises out of the same “conduct, transaction, or
occurrence” set forth in the original complaint. UTAH R. CIV. P. 15(c).
¶81 The quoted language was imported from rule 15(c) of the
Federal Rules of Civil Procedure. FED. R. CIV. P. 15(c)(1)(B); see also
UTAH R. CIV. P. 15(c) & Foreword (1950). Our adoption of Utah Rule
15(c) was accordingly an adoption of the cluster of principles
embedded in federal law.77 And I would thus start with the body of
case law interpreting the federal rule in seeking to understand the
meaning of “conduct, transaction, or occurrence.”
_____________________________________________________________
77 See Tucker v. State Farm Mut. Ins. Co., 2002 UT 54, ¶ 7 n.2, 53
P.3d 947 (noting that precedent interpreting federal rules “are
persuasive where the Utah Rules of Civil Procedure are
‘substantially similar’”); Drew v. Lee, 2011 UT 15, ¶ 16, 250 P.3d 48(“Because the Utah Rules of Civil Procedure are patterned after the
Federal Rules of Civil Procedure, where there is little Utah law
interpreting a specific rule, we may . . . look to the Federal Rules of
Civil Procedure for guidance.”) (citation omitted).
36
Cite as: 2019 UT 3A.C.J. Lee, dissenting
¶82 I am not saying that we are required to follow the federal
case law. See supra ¶ 47 n.57. The federal standard is in no way
binding on this court. The applicable rule is a Utah Rule of Civil
Procedure. So it is ours to interpret. But the question of
interpretation presented in this case is a matter of first impression.
Our cases have never interpreted the operative “conduct,
transaction, or occurrence” standard in rule 15(c). We should offer an
interpretation of that language now. And the starting point for our
interpretation should be the text of that rule.
¶83 This text incorporates a longstanding legal term of art. And
we should thus interpret the rule’s language by reference to the body
of case law establishing the meaning of these terms. Maxfield v.
Herbert, 2012 UT 44, ¶ 31, 284 P.3d 647 (“[W]hen a word or phrase is
‘transplanted from another legal source . . . it brings the old soil with
it.’”(citation omitted)).
¶84 I would do so here. In light of a longstanding, settled body
of cases under federal rule 15(c) I would hold that the “conduct,
transaction, or occurrence” test means what it says—it has reference
to the factual circumstances giving rise to a set of claims. Thus, I
would hold that an amended claim relates back to an original
complaint when the new claim arises from the same set of factual
circumstances alleged in the earlier complaint.78
_____________________________________________________________
78 The majority seeks to rehabilitate its approach—and to criticize
mine—by pointing to a different clause in rule 15(c). It notes that rule
15(c) “states that not only will an amendment relate back to the date
of the original pleading when the amendment asserts a claim that
arose out of the conduct[,] transaction[,] or occurrence set out in the
original pleading, but that an amendment will also relate back when
the claim asserted ‘arose out of the conduct, transaction, or
occurrence . . . attempted to be set out . . . in the original pleading.’”
Supra ¶ 53 (alteration in original). The majority chides me for failing
to consider this language. And it asserts that the “attempted to be set
out” language “requires a liberal reading” of the rule that supports
its approach. Id.
I beg to differ. The quoted language does not enlarge the scope of
what counts as the relevant “conduct, transaction, or occurrence.” It
just says that an amendment should relate back even if the original
complaint was inartfully drafted in its attempt to lay out the relevant
facts. It is thus inconsistent with the text of the rule to read the
(Continued)
37
STATE v. NOOR
A.C.J. Lee, dissenting
¶85 This standard is easy to state in the abstract but sometimes
difficult to articulate with particularity—and occasionally difficult to
apply. But this case is an easy one. The transaction alleged in the
original petition is quite distinct from that set forth in the amended
pleading. In the first petition Noor focused on his trial lawyer’s
failure to appreciate the culture and language barriers to Noor’s
interactions with the victim of his crime. He alleged ineffective
assistance of counsel in his trial lawyer’s failure to assert a mens rea
defense in light of these problems—a defense based on the idea that
Noor’s cultural background (Somali) and “lack of fluency in
English” “prevented him from forming the requisite intent to
commit lewdness or forcible sexual abuse” and “impaired his ability
to understand the victim’s demands that he stop his advances.” But
Noor changed the subject in his amended petition. He abandoned
the focus on his lawyer’s failure to appreciate the culture and
language barriers to Noor’s interactions with the victim of his
crimes. Instead he asserted a claim arising from his lawyer’s failure
to appreciate the language barriers to Noor’s interactions with his
attorney. This claim asserted ineffective assistance in failing to engage
an interpreter at trial, as allegedly necessary to allow Noor to
communicate with his lawyer concerning his defense and strategy at
trial.
¶86 The two petitions accordingly arise from distinct
transactions. I would affirm the district court on this basis. I would
conclude that Noor’s amended claim for ineffective assistance of
counsel cannot be viewed as arising from the same “conduct,
transaction, or occurrence” set forth in the original complaint.
A. The Standard in Rule 15(c)
¶87 The standard in rule 15(c) is straightforward. It says that an
amended claim relates back when it arises from the same “conduct,
transaction, or occurrence” alleged in the original complaint. The
rule is accordingly focused on the factual circumstances giving rise
to the plaintiff’s claims. Courts have long held that an amended
claim relates back if it arises out of the same factual circumstances—
or the “conduct, transaction, or occurrence”—set forth in the original
“attempted to be set out” language as mandating a liberal reading of
what was attempted to be set out. This requires leniency only in
assessing how it was set out.
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complaint.79 And that holds regardless of whether the plaintiff’s
theory of recovery (or nature of the “cause of action,” to use the
majority’s term) is distinct.80
¶88 The courts have sometimes struggled to state a
comprehensive test delineating the scope of the relevant “conduct,
transaction, or occurrence.”81 But the factual relationship between
_____________________________________________________________
79 See, e.g., United States v. Craycraft, 167 F.3d 451, 457 (8th Cir.
1999) (“If the ineffective conduct alleged by [petitioner] in his first
petition cannot be said to have arisen out of the same set of facts as
his amended claim, his amendment cannot relate back . . . .”); Holmes
v. Greyhound Lines, Inc., 757 F.2d 1563, 1566 (5th Cir. 1985)
(concluding that an amended claim did not relate back because that
claim was “based on entirely different facts”); Santana v. Holiday Inns,
Inc., 686 F.2d 736, 739 (9th Cir. 1982) (“Once the defendant is in court
on a claim arising out of a particular transaction or set of facts, he is
not prejudiced if another claim, arising out of the same facts, is
added.”); Wiren v. Paramount Pictures, 206 F.2d 465, 468 (D.C. Cir.
1953) (concluding that an amended claim did not arise out of the
same conduct, transaction, or occurrence even though the
subsequent conduct “grew out of” the original pleading because it
was “independent and distinct”).
80 See, e.g., Idaho Power Co. v. United States, 105 Fed. Cl. 141, 146
(2012) (“[I]t does not matter whether the new claim is premised on a
legal theory different from the one set out in the original complaint.”
(citations omitted)); Kuba v. Ristow Trucking Co., Inc., 811 F.2d 1053,
1055 (7th Cir. 1987) (concluding that an amendment to include treble
damages related back to the original negligence claim because res
judicata would preclude the prosecution of both claims in separate
actions); Johansen v. E.I. Du Pont De Nemours & Co., 810 F.2d 1377,
1380 (5th Cir. 1987) (concluding that the amended complaint for
breach of implied and express warranty related to the original
products liability claim even though the theory of recovery was
wholly different); White v. Holland Furnace Co., 31 F. Supp. 32, 34
(S.D. Ohio 1939) (“To give effect to Rule 15(c), . . . the Court should
allow an amendment of a pleading where the factual situation was
not changed though a different theory of recovery is presented.”).
81 6A CHARLES ALAN WRIGHT ET AL., FEDERAL PRACTICE AND
PROCEDURE § 1497 (3d ed. 2018) (noting that “[j]udicial opinions
occasionally have recited mechanical tests in an attempt to determine
whether a particular amendment should relate back,” such as by
(Continued)
39
STATE v. NOOR
A.C.J. Lee, dissenting
the original and amended petition has always required more than
expansion on the facts in the initial pleading. Both sets of claims
must arise from the same set of factual circumstances. And an
amended claim—even one based on the same legal theory or cause
of action as that set forth in the original complaint—does not relate
back where it arises from conduct, a transaction, or an occurrence
that was “distinct in time and place” from that alleged in the first
pleading.82
¶89 The mere existence of factual expansion has never been
sufficient. I am not aware of a single case prior to this one in which a
court has concluded that a claim relates back so long as it expands
upon the facts of an earlier pleading.83 The majority nowhere
asking whether a “judgment on the claim set forth in either
pleading” would “bar an independent action on the other,” whether
“the same evidence” would “support both the original and amended
pleadings,” and whether the “measure of damages” is “the same in
each case”; and concluding that “[a]lthough each of these
formulations expresses a relevant factor, none of them fully
embraces the philosophy of Rule 15(c)” (citations omitted)).
82 Oja v. U.S. Army Corps of Eng’rs, 440 F.3d 1122, 1134 (9th Cir.
2006) (concluding that the amended complaint does not relate back
to the earlier complaint because the acts of disclosure were “distinct
in time and place”); see also Phelan v. City of Chicago, 125 F. Supp. 2d
870, 877 (N.D. Ill. 2000), aff’d, 347 F.3d 679 (7th Cir. 2003) (concluding
that “separate employment actions at different times by different
City departments involving different jobs do not constitute the ‘same
conduct, transaction or occurrence’ under Rule 15(c)(2)”); United
States v. Hicks, 283 F.3d 380, 388 (D.C. Cir. 2002) (holding that “Rule
15(c) does not apply where the [petitioner’s] proposed amendment
makes claims or is based on occurrences ‘totally separate and
distinct, “in both time and type” from those raised in his original
motion’” (quoting United States v. Espinoza-Saenz, 235 F.3d 501, 505
(10th Cir. 2000) & Craycraft, 167 F.3d at 457)); Nat’l Distillers & Chem.
Corp. v. Brad’s Mach. Prods., Inc., 666 F.2d 492, 496 (11th Cir. 1982)
(concluding that the additional claims in the amendment did not
relate back to the original complaint because the allegations “were
separate and distinct from the price fixing violations alleged in the
original complaint”).
83The majority does not cite such a case—or any support for this
notion. Instead it seeks to frame my proposed standard as the
(Continued)
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explains how much “expansion” would be allowed under its novel
standard. Such a standard, moreover, will undermine the notice
rationale of rule 15(c). See supra ¶ 42 (highlighting this rationale). A
standard allowing mere factual expansion to relate back will always
beg the question of how much expansion is too much. And the
arbitrary nature of that inquiry means that a defendant will have no
notice of the range of claims that may later be deemed to relate back
to an earlier pleading.
¶90 The way to provide notice is to adhere to the text of the rule.
That text suggests that “a party who has been notified of a litigation
concerning a particular occurrence has been given all the notice that
statutes of limitations were intended to provide.” Supra ¶ 42 (citation
omitted). I would stick to that standard. I believe that doing so is the
only way to advance the notice rationale highlighted by the majority.
B. Mayle v. Felix
¶91 The United States Supreme Court’s analysis in Mayle v. Felix,
545 U.S. 644 (2005), though not binding on this court, is also
instructive. In Mayle the court was presented with a federal analogue
to the question presented here—the standard for relation back under
federal rule 15(c) for an amended claim for post-conviction review
under the Antiterrorism and Effective Death Penalty Act of 1996
(AEDPA). 545 U.S. at 648. That statute imposes a one-year limitation
period for federal habeas petitions. 28 U.S.C. § 2244(d)(1). And, as in
this case, the petitioner in Mayle asserted a timely post-conviction
claim but then later sought to amend the petition by adding a new
claim. The timely claim in Mayle asserted that “the admission into
evidence of videotaped testimony of a witness for the prosecution
violated his rights under the Sixth Amendment’s Confrontation
substantial equivalent of the one it applies—asserting that “[t]here is
little, if any” real distinction between our standards except perhaps
“word choice.” Supra ¶ 47, n.61. I see the matter differently. My
approach admittedly looks at “the factual circumstances giving rise
to the claim.” Id. But the factual circumstances I would consider are
set forth in the text of rule 15(c)—the “conduct, transaction, or
occurrence” giving rise to the claim. UTAH R. CIV. P. 15(c)(2). The
majority’s test is much broader, and less definite. And it considers
(in some unspecified way) whether the proposed amendment
“expand[s] or modif[ies] the original cause of action stated.” Supra
¶ 47 n.57. This is a far less determinate inquiry than the one I would
embrace.
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STATE v. NOOR
A.C.J. Lee, dissenting
Clause.” 545 U.S. at 648. The untimely claim, alleged in an amended
pleading filed five months after the expiration of AEDPA’s time
limit, asserted that “in the course of pretrial interrogation, the police
used coercive tactics to obtain damaging statements from him, and
that admission of those statements at trial violated his Fifth
Amendment right against self-incrimination.” Id. at 649.
¶92 The district court in Mayle denied the petitioner’s motion for
leave to amend to add this claim, holding that petitioner’s “allegedly
involuntary statements to police d[id] not arise out of the same
conduct, transaction or occurrence as the videotaped interrogation”
of the prosecution witness. Id. at 652 (alteration in original). The
Ninth Circuit reversed. It held that the relevant “transaction” under
federal rule 15(c) was petitioner’s “trial and conviction in state
court.” Id. at 653 (citation omitted).
¶93 The Supreme Court reversed, in an opinion by Justice
Ginsburg. It noted that “[t]he key words are ‘conduct, transaction, or
occurrence.’” Id. at 656. And it explained that the Ninth Circuit’s
“comprehensive definition” of those words would allow “virtually
any new claim introduced in amended petition” under AEDPA to
“relate back.” Id. at 656–57. After all, Justice Ginsburg explained,
“federal habeas claims, by their very nature, challenge the
constitutionality of a conviction or sentence, and commonly attack
proceedings anterior thereto.” Id. at 657 (citations omitted).
¶94 The Mayle Court also noted that a “majority” of federal
circuit courts had adopted a much narrower standard than that
embraced by the Ninth Circuit. Id. Under the majority view, relation
back is allowed “only when the claims added by amendment arise
from the same core facts as the timely filed claims, and not when the
new claims depend upon events separate in ‘both time and type’
from the originally raised episodes.” Id. (citation omitted).
¶95 Justice Ginsburg’s opinion for the Court embraced this
majority view. It held that “relation back depends on the existence of
a common ‘core of operative facts’ uniting the original and newly
asserted claims.” Id. at 659 (citations omitted). And it emphasized
that the rule 15(c) standard must be defined in a way that “relaxes,
but does not obliterate, the statute of limitations” in the operative
statute (AEDPA). Id. (citation omitted).
¶96 The Mayle Court also connected its “common core of
operative facts” test to longstanding federal case law. It cited a long
string of federal court of appeals cases requiring an amended claim
to arise from a single episode identified in the original complaint. See
id. at 657–60. And it explained that its approach was likewise
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consonant with the standard set forth in Tiller v. Atlantic Coast Line
Railroad Co., 323 U.S. 574 (1945).
¶97 Tiller is a counterpart to our Peterson case. It involved a tort
claim against a railroad under the Federal Employers’ Liability Act.
The plaintiff “initially alleged various negligent acts,” but then
sought to file an amended pleading adding “a claim under the
Federal Boiler Inspection Act for failure to provide the train’s
locomotive with a rear light.” Mayle, 545 U.S. at 659. Tiller “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.” Id. But the Federal Boiler Inspection Act claim
nonetheless related back because “[t]here was but 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 reasonable safe
place to work.” Id. at 660. Thus, the plaintiff in Tiller “based her
complaint on a single ‘occurrence,’ an accident resulting in her
husband’s death.” Id. But the Mayle Court emphasized that that
standard was not met in the case before it, given that the petitioner
“targeted separate episodes, the pretrial police interrogation of [a]
witness . . . in [the] original petition” and the petitioner’s “own
interrogation at a different time and place in [the] amended
petition.” Id. And it declined to find relation back under federal rule
15(c).
¶98 In so doing the Mayle Court also highlighted the effects of a
contrary conclusion on the one-year limitations period set forth in
AEDPA. It noted that “AEDPA’s limitation period would have slim
significance” under the Ninth Circuit’s standard. Id. at 662 (citations
omitted). And it emphasized that “it would be anomalous to allow
relation back under” federal rule 15(c) “based on a broader reading
of the words ‘conduct, transaction, or occurrence’ in federal habeas
proceedings than in ordinary civil litigation.” Id. at 663.
¶99 These are all salient points. And in my view they cut
strongly against the majority’s fuzzy standard and in favor of a
standard based on the plain language of rule 15(c). First and
foremost, the Mayle opinion reinforces the fact that the settled,
majority interpretation of “conduct, transaction, or occurrence” is
incompatible with the approach adopted by our court today.
Nobody in Mayle was arguing for a “same cause of action” test or a
hazy “factual expansion” qualifier. Certainly none of the lower
federal courts had embraced such a standard. Everyone understood
the “conduct, transaction, or occurrence” test to require a focus on
43
STATE v. NOOR
A.C.J. Lee, dissenting
the specific factual circumstances set forth in the original complaint.
The only question was how to define the relevant set of factual
circumstances.
¶100 The Mayle Court, moreover, emphasizes the need to assure
that the rule 15(c) standard does not override the operative statute of
limitations. And it shows how the standard approach to “conduct,
transaction, or occurrence” preserves a role for a statute of
limitations applicable to post-conviction review claims.
¶101 The majority’s standard here is perhaps narrower than
that embraced by the Ninth Circuit in Mayle. But the court never
clearly identifies the “conduct, transaction, or occurrence” that is
relevant to our inquiry.84 Instead it says that what really matters is
that the new claim be the same “cause of action” (meaning the same
legal theory of relief) as that asserted in the original complaint. And
where that is so (as it often will be under the PCRA, in that the core
claim arising under the PCRA is a claim for ineffective assistance of
counsel), the court merely requires that the new claim be rooted in
the “same kind of factual basis” as that set forth in the original
petition. Supra ¶ 47.
¶102 The court’s standard, however, is incompatible with the
longstanding approach of the federal courts—an approach that was
_____________________________________________________________
84 At one point the majority implies that Mr. Noor’s entire trial
could qualify as the “same time and place” for purposes of rule 15(c)
analysis. Supra ¶ 52. Elsewhere it says that the relevant “core fact”
giving rise to both sets of claims is the fact that “his counsel failed to
present argument based on [Noor’s] inability to understand
English.” Supra ¶ 47 n.61. Neither of those views of the relevant
“conduct, transaction, or occurrence” is tenable. The first is the same
untenably broad approach embraced by the Ninth Circuit in Mayle
(and rejected by the Supreme Court). And the second underscores
the fact that the majority is allowing widely disparate events to relate
back under the guise of “factual expansion” instead of focusing on
the same “conduct, transaction, or occurrence.” The “conduct,
transaction, or occurrence” giving rise to Noor’s first claim involved
Noor’s interactions with the victim of his crimes. See supra ¶ 50. And
the “conduct, transaction, or occurrence” giving rise to his amended
claim was very different. This claim arose out of events at a different
time and place and involving different actors—Noor’s interactions
with his trial counsel. Id.
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well settled by the time our Utah rule was adopted. See White v.
Holland Furnace Co., 31 F. Supp. 32, 34 (S.D. Ohio 1939) (discussing
the amendments to the federal rule 15(c) and noting that “[t]he
emphasis of the courts has been shifted from a theory of law as the
cause of action, to the specified conduct of the defendant upon
which the plaintiff tries to enforce his claim” (citing N.Y. Cent. R.R. v.
Kinney, 260 U.S. 340 (1922); United States v. Memphis Cotton Oil Co.,
288 U.S. 62 (1933)).85 And the court’s standard is fuzzy and ill-
defined. We are told very little about what it means for a new claim
to be rooted in the “same kind of factual basis” as that alleged in an
earlier petition. The closest the court comes to elaborating on this
standard is to say that it is enough for the new pleading to “expand”
upon the facts of the earlier one. Supra ¶ 51. I have no idea where
this standard comes from or what it will mean going forward. It
seems aimed at opening the door for future courts to override the
statute of limitations in our PCRA on the arbitrary ground that an
entirely new set of circumstances is merely an “expansion” of the
facts in the original pleading.
¶103 The court’s standard, moreover, will presumably apply
outside the PCRA. Because we have never before interpreted the
terms of rule 15(c) the majority opinion in this case will set the
standard for relation back for any of a range of claims. And so long
as a new claim happens to state the same “cause of action” as that
advanced in a prior complaint, the new claim will relate back so long
as it has a “factual basis” that “expands” upon the initial pleading.
¶104 The court’s standard sets a new course for our law under
rule 15(c). I am unsure how it will play out in the future. But it seems
sure to bring unrest and uncertainty to this important area of Utah
procedure.86
_____________________________________________________________
85 The majority seeks to undermine my approach on the ground
that the federal standard that I embrace “did not exist” at the time of
Rule 15(c)’s adoption. Supra ¶ 43 n.51. But these and other cases put
that notion to rest. My approach is not to “strictly” interpret rule
15(c). Supra ¶ 56. It is to interpret it fairly, in light of the language of
the federal rule that we imported into our Utah rule. And we cannot
interpret this language without considering the federal counterpart
to our Utah rule.
86 The majority seeks to avoid these and other problems by
pointing to Mr. Noor’s immigration status, his lack of English
(Continued)
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STATE v. NOOR
A.C.J. Lee, dissenting
C. Application of the Rule 15(c) Test to this Case
¶105 For the above reasons I would apply a standard dictated
by the plain language of rule 15(c). I would hold that an amended
claim relates back to an earlier complaint only where it arises out of
the same “conduct, transaction, or occurrence” set forth previously.
And I would define that standard as a long line of federal courts
have—to focus on the factual circumstances giving rise to the claim,
without regard to whether the claim is rooted in the same legal
theory as asserted previously.
¶106 I would hold that a new claim relates back to an earlier
one only where it arises from the same core of operative facts alleged
in the original complaint. And I would clarify that it does not relate
back where it arises from facts that were “distinct in time and place”
from that alleged in the first pleading. See supra ¶ 31 & n.5.
¶107 I would also affirm the district court’s decision under this
standard. I would hold that Noor’s new claim for ineffective
assistance of counsel does not relate back to the original petition
proficiency, and his pro se status. Supra ¶ 57. Yet it nowhere explains
how these considerations affect the standard that it applies—except
to suggest that we should be “lenient” to pro se litigants and give a
“liberal” interpretation to motions to amend under rule 15. Supra
¶ 51 n.64. And I fail to see the salience of the majority’s concerns.
Certainly I bear some human sympathy for those who are left to
navigate the legal system without either counsel or proficiency in the
predominant language of our culture. Yet to my knowledge we have
never cited those concerns as grounds for altering our view of the
law—or its application to a pro se party. We can be lenient to
unrepresented parties by giving them the benefit of the doubt in the
interpretation of their legal filings. That is all the leniency that our
law has called for. See McNair v. State, 2014 UT App 127, ¶ 12, 328
P.3d 874 (noting that a “pro se document ‘is to be liberally
construed’” to excuse “inartful[] plead[ing]” (internal quotations and
citations omitted)).
But the problem here is not an ambiguity in or failure of
pleading. It is in the interpretation of rule 15(c) and its application to
this important case. And I fear that a goal of solicitude for Mr. Noor
may invoke the maxim that hard facts make bad law. See N. Sec. Co.
v. United States, 193 U.S. 197, 364 (1904) (Holmes, J. dissenting)
(“Great cases, like hard cases, make bad law.”).
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because the new claim arose from an occurrence that was “distinct in
time and place” from that alleged in the petition.
¶108 Noor’s original claim for ineffective assistance of counsel
arose out of his counsel’s failure to appreciate the language and
culture barriers to Noor’s interactions with the victim of his crimes.
The amended petition had a different focus. It arose out of alleged
barriers to Noor’s effective communication with his trial attorney.
Thus, the second pleading is in some sense a factual expansion of the
first—insofar as it deals with a completely new set of facts. But the
two claims did not arise out of the same conduct, transaction, or
occurrence. They focused on two very different relationships that
were “distinct in time and place” (and actor).87
¶109 The amended claims at issue here accordingly do not arise
from the same conduct, transaction, or occurrence set forth in the
original complaint. And for that reason they cannot relate back to the
original petition. I would so hold. I would affirm the district court on
the ground that Noor’s amended claims are barred by the statute of
limitations set forth in the PCRA.
III
¶110 The standard in rule 15(c) is straightforward. A claim in an
amended pleading relates back to an earlier pleading if both arise
from the same “conduct, transaction, or occurrence.” The majority
distorts that standard by allowing relation back so long as a new
claim alleges the same kind of cause of action as that in an earlier
_____________________________________________________________
87 The majority challenges this conclusion on the ground that
Noor alleged in both petitions “that his trial counsel was ineffective
at trial for failing to argue the significance of his inability to
understand English.” Supra ¶ 52. It also emphasizes that Noor’s
focus in both petitions was “trial counsel,” that his “cause of action”
in both cases was a claim for “ineffective assistance of counsel,” and
that the “time and place” where both claims arose was at “trial.” Id.
This just underscores the problematic nature of the majority’s
inquiry—and its incompatibility with the text of rule 15(c). If trial
counsel is the relevant “actor” and the relevant “transaction” is the
trial then few, if any, ineffective assistance claims will fall outside of
rule 15(c). The only limiting factor will be the ability to identify a
way to frame the new pleading as a simple “expansion” of the
earlier. And most any enterprising lawyer can find some plausible
way of doing so.
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STATE v. NOOR
A.C.J. Lee, dissenting
pleading and expands upon the facts laid out therein. I dissent
because this new standard is incompatible with our rule. I also fear
that it will lead to arbitrary results going forward.
¶111 There is a sense in which it could be said that both of
Noor’s claims arose out of a common “transaction.” If the relevant
transaction is defined as Noor’s trial then any claim for ineffective
assistance at trial arose out of that transaction. That cannot be the
relevant transaction for purposes of a PCRA claim for ineffective
assistance under rule 15(c), however. The PCRA requires that any
post-conviction claim for ineffective assistance be asserted within
one year. UTAH CODE § 78B-9-107. And rule 15(c) must be interpreted
in a manner that preserves some application of that statute of
limitations. Cf. Mayle v. Felix, 545 U.S. 644, 657, 659 (2005) (rejecting
the trial-as-the-transaction concept because “virtually any new claim
introduced in an amended petition will relate back, for federal
habeas claims, by their very nature” and thus would “obliterate[] the
statute of limitations”). We thus cannot conclude that the trial was
the relevant transaction, or that the claim at issue here relates back
because it arose out of that transaction.
¶112 The majority stops a half-step short of identifying the
relevant transaction at that level of generality. But it adds a gloss that
is not compatible with the text of rule 15(c), and that will distort the
development of our law in this field. I respectfully dissent on that
basis.
48