                                                                  [DO NOT PUBLISH]

                 IN THE UNITED STATES COURT OF APPEALS

                           FOR THE ELEVENTH CIRCUIT
                                                                            FILED
                                                                   U.S. COURT OF APPEALS
                                       No. 04-13534                  ELEVENTH CIRCUIT
                                                                     SEPTEMBER 8, 2005
                                                                      THOMAS K. KAHN
                                                                           CLERK
                          D. C. Docket Nos. 99-07359-CV-SH
                                            94-06114 CR-SH

FLOYD MCLEAN,

                                                          Plaintiff-Appellee,

                                           versus

UNITED STATES OF AMERICA,

                                                          Defendant-Appellant.


                     Appeal from the United States District Court
                         for the Southern District of Florida


                                    (September 8, 2005)

                         ON PETITION FOR REHEARING

Before DUBINA and WILSON, Circuit Judges, and LAWSON*, District Judge.

PER CURIAM:

____________________________
*Honorable Hugh Lawson, United States District Judge for the Middle District of Georgia,
sitting by designation.
      On July 27, 2005, the government filed a petition for panel rehearing. We

directed the appellee to file a response to the government’s petition. On August

24, 2005, the appellee complied with our order.

      After reviewing the petition and the response thereto, we grant the petition

for rehearing, withdraw our previous opinion filed on June 13, 2005, and

substitute the following in lieu thereof.

      The Supreme Court decided the case of Mayle v. Felix, ___ U.S. ___, 125 S.

Ct. 2562 (June 23, 2005) ten days after we issued an opinion in this case, wherein

we affirmed the district court’s finding that McLean’s amended claim related back

to his original, timely filed § 2255 petition. In Mayle, the Supreme Court held:

“An amended habeas petition . . . does not relate back (and thereby escape

AEDPA’s one-year time limit) when it asserts a new ground for relief supported

by facts that differ in time and type from those in the original pleading set forth.”

125 S. Ct. at 2566. Although the Court’s approach to interpreting amendments to

pleadings in this context was already the law in this circuit, see Davenport v.

United States, 217 F.3d 1341, 1344-46 (11th Cir. 2000), its opinion provided

further guidance in this area. See Mayle, 125 S. Ct. at 2569-2575.

      In Mayle, the defendant-appellant timely alleged that his conviction violated

the Fifth Amendment because videotaped statements of a witness were played for

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the jury in violation of his right to confront the witness. Id. at 2566. However,

five months after the one-year limitation imposed under the AEDPA expired, he

moved to amend his petition to add another claim regarding his pretrial statements

to the police. Id. The magistrate judge denied the amendment, reasoning the

claim did not relate back:

                [The defendant’s] allegedly involuntary statements to
                police did not arise out of the same conduct, transaction,
                or occurrence as the videotaped interrogation of
                prosecution witness Kenneth Williams.

125 S. Ct. at 2568. The magistrate judge also found that “it did not suffice that

[the Defendant’s] Fifth and Sixth Amendment claims attack the same criminal

conviction.” Id. The district court then adopted the magistrate judge’s

recommendation for dismissal of the defendant’s claim. Id. On appeal, however,

the Ninth Circuit reversed the district court, finding that the defendant’s “trial and

conviction in state court” constituted a “transaction” within the meaning of Rule

15(c)(2). Id.

      The Supreme Court reversed the Ninth Circuit. Id. at 2566. In reaching its

holding, the Court stressed that “[in interpreting Fed. R. Civ. P. 15(c)(2)’s relation

back provision in this context,]the key words are conduct, transaction, or

occurrence.” 125 S. Ct. at 2570. The Court further reasoned:



                                            3
             Habeas Corpus Rule 2(c) . . . instructs petitioners to
             specify all available grounds for relief and to state the
             facts supporting each ground. Under that rule, [the
             defendant’s] Confrontation Clause claim would be
             pleaded discretely, as would his self-incrimination claim.
             Each separate congeries of facts supporting the grounds
             for relief, the Rule suggests, would delineate an
             “occurrence.” [The defendant’s] approach, the approach
             that prevailed in the Ninth Circuit, is boundless by
             comparison. A miscellany of claims for relief could be
             raised later rather than sooner and relate back, for
             “conduct, transaction, or occurrence” would be defined
             to encompass any pretrial, trial, or post-trial error that
             could provide a basis for challenging the conviction. An
             approach of that breadth . . . views “occurrence” at too
             high a level of generality.

125 S. Ct. at 2573 (quotation marks and citation omitted). Relation back, the

Court explained, is only allowable “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. at 2571 (citation omitted).

      In the instant case, under Mayle and Davenport, we cannot say that

McLean’s amended claim regarding his counsel’s failure to show him a videotape

of a drug transaction, and the affect this would have had on plea negotiations,

relates back to any of his timely filed § 2255 claims.1 The magistrate judge

      1
        We review de novo the magistrate judge’s conclusions of law as adopted by
the district court. Wilcox v. Fla. Dept. of Corr., 158 F.3d 1209, 1211 n.4 (11th Cir.
                                         4
erroneously concluded McLean’s claim related back stating: “Although this

precise issue was not fully articulated in any of McLean’s prior pleadings, he

complained throughout his pleadings that counsel did not adequately prepare for

trial.” The magistrate judge’s rationale here is guilty of the “high level of

generality” the Supreme Court warned against in Mayle, as a plethora of potential

claims regarding pretrial and trial errors can fit under the umbrella of failure to

adequately prepare for trial. 125 S. Ct. at 2573.

      Accordingly, based on the foregoing discussion, we reverse the district

court’s order granting McLean’s § 2255 motion.

      REVERSED.




1998).
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