Moreover, to the extent that Lugaro attempts to "incorporate the entirety of the arguments and authorities presented to the state court . . . by [] reference," to support his petition (see, e.g., id. at 6), he may not do so. "A petitioner 'may not simply incorporate by reference' claims and facts set forth in the state proceedings, but which are not recited in the federal petition for a writ of habeas corpus." Ingram v. Buckingham Corr. Ctr., No. 3:09CV831, 2011 WL 836826, at *1 n.2 (E.D. Va. Mar. 4, 2011)(quoting Cox v. Angelone, 997 F. Supp. 740, 746 (E.D. Va. 1998)). "Incorporation by reference does not conform to the rules governing pleading for habeas proceedings."
Lastly, "it is not sufficient that the new claim simply has the same form as the original claims . . . . Thus, 'a petitioner does not satisfy the Rule 15 'relation back' standard merely by raising some type of ineffective assistance in the original petition, and then amending the petition to assert another ineffective assistance claim based upon an entirely distinct type of attorney misfeasance.'" Ingram v. Buckingham Corr. Ctr., No. 3:09CV831, 2011 WL 836826, at *7 (E.D. Va. Mar. 4, 2011) (unpublished) (quoting United States v. Ciampi, 419 F.3d 20, 24 (1st Cir. 2005)), appeal dismissed, 468 F. App'x 236 (4th Cir. 2012); accord, e.g., Watkins v. Deangelo-Kipp, 854 F.3d 846, 850 (6th Cir.), cert. denied, ___ U.S. ___, 138 S. Ct. 101 (2017); United States v. Gonzalez, 592 F.3d 675, 679-80 (5th Cir. 2009). Because any new claim of ineffective assistance of trial counsel could not meet the "relation-back" standard, any such claim would fail as untimely, absent equitable tolling, see Holland v. Florida, 560 U.S. 631, 634 (2010) (recognizing that equitable tolling applies to federal habeas limitations period).
The Court is neither obliged nor inclined to reraise the claims of prosecutorial misconduct and judicial misconduct that McKay pursued in state court where McKay failed to supply the pertinent facts in conjunction with his federal habeas petition. Ingram v. Buckingham Corr. Ctr., No. 3:09CV831, 2011 WL 836826, at *1 n.2 (E.D. Va. Mar. 4, 2011) ("A petitioner 'may not simply incorporate by reference' claims and facts set forth in the state proceedings, but which are not recited in the federal petition for a writ of habeas corpus." (quoting Cox v. Angelone, 997 F. Supp. 740, 746 (E.D. Va. 1998))).
House does not even make an effort to list those claims in his § 2254 Petition; instead, he has attached copies of his state court filings in no order. Generally, "[a] petitioner 'may not simply incorporate by reference' claims and facts set forth in the state proceedings, but which are not recited in the federal petition for a writ of habeas corpus." Ingram v. Buckingham Corr. Ctr., No. 3:09CV831, 2011 WL 836826, at *1 n.2 (E.D. Va. Mar. 4, 2011) (quoting Cox v. Angelone, 997 F. Supp. 740, 746 (E.D. Va. 1998)). "Incorporation by reference does not conform to the rules governing pleading for habeas proceedings."
Similarly, although the Petition raises ineffective assistance claims and the lone, new aspect of Ground One of the Amended Petition also asserts a claim for ineffective assistance (i.e., that trial counsel "failed to make [a] motion to dismiss for insufficient evidence on behalf of [Petitioner] at the close of [the] State's case and at the close of all evidence" (Docket Entry 8, ¶ 12(Ground One)(a))), "it is not sufficient that the new claim simply has the same form as the original claims . . . . Thus, 'a petitioner does not satisfy the Rule 15 'relation back' standard merely by raising some type of ineffective assistance in the original petition, and then amending the petition to assert another ineffective assistance claim based upon an entirely distinct type of attorney misfeasance.'" Ingram v. Buckingham Corr. Ctr., No. 3:09CV831, 2011 WL 836826, at *7 (E.D. Va. Mar. 4, 2011) (unpublished) (quoting United States v. Ciampi, 419 F.3d 20, 24 (1st Cir. 2005)), appeal dismissed, 468 F. App'x 236 (4th Cir. 2012); accord United States v. Gonzalez, 592 F.3d 675, 679-80 (5th Cir. 2009); Lowery, 2012 WL 2395192, at *4. The Court therefore should deem untimely (and futile) the non-redundant part of Ground One of the Amended Petition, because it attacks a materially different form of ineffective assistance than does the Petition.
These new claims do not relate back to [Petitioner's] original claims because they arise from separate occurrences of both time and type [than the jurisdiction-focused claims in his Section 2255 Motion]." Pittman, 209 F.3d at 318 (internal quotation marks omitted); see also Ingram v. Buckingham Corr. Ctr., No. 3:09CV831, 2011 WL 836826, at *7 (E.D. Va. Mar. 4, 2011) (unpublished) ("[I]t is not sufficient that the new claim simply has the same form as the original claims. . . . Thus, 'a petitioner does not satisfy the Rule 15 'relation back' standard merely by raising some type of ineffective assistance in the original petition, and then amending the petition to assert another ineffective assistance claim based upon an entirely distinct type of attorney misfeasance.'" (quoting United States v. Ciampi, 419 F.3d 20, 24 (1st Cir. 2005))).
Moreover, after a review of Grounds Three and Four and the corresponding proposed amendments to those grounds (compare Docket Entry 2 at 8, 10, with Docket Entry 35 at 2), the undersigned finds no such connection. Mayle v. Felix, 545 U.S. 644, 664 (2005) (holding that, in the context of a habeas petition, "conduct, transaction, or occurrence" does not mean a petitioner's entire trial or sentencing); Ingram v. Buckingham Corr. Ctr., No. 3:09CV831, 2011 WL 836826, at *7 (E.D. Va. Mar. 4, 2011) (unpublished) ("[I]t is not sufficient that the new claim simply has the same form as the original claims . . . . Thus, 'a petitioner does not satisfy the Rule 15 'relation back' standard merely by raising some type of ineffective assistance in the original petition, and then amending the petition to assert another ineffective assistance claim based upon an entirely distinct type of attorney misfeasance.'" (quoting United States v. Ciampi, 419 F.3d 20, 24 (1st Cir. 2005))).
Accordingly, that motion (Docket No. 27) will be DENIED. See Ingram v.Buckingham Corr. Ctr., No. 3:09CV831, 2011 WL 836826, at *6 (E.D. Va. Mar. 4, 2011) ("Leave to amend is appropriately denied where the amendment would be futile, such as here, because the proposed amended claims are procedurally defaulted." (citing United States v. Pittman, 209 F.3d 314, 317 (4th Cir. 2000))).
As explained below, O'Neill does not demonstrate the factual circumstances that undergird the appellate counsel claims were either unknown to O'Neill or not readily available to O'Neill with the exercise of due diligence prior to the time his conviction became final on November 5, 2002. DiCenzi v. Rose, 452 F.3d 465, 471 (6th Cir. 2006). It is unnecessary to address belated commencement for Claim One because that claim does not state a cognizable basis for federal habeas relief. See Ingram v. Buckingham Corr. Ctr., No. 3:09CV831, 2011 WL 836826, at *2 (E.D. Va. Mar. 4, 2011) (dismissing claims which sought habeas relief based on alleged errors in state post-conviction proceedings (citing Lawrence v. Branker, 517 F.3d 700, 717 (4th Cir. 2008))). Given the fact that O'Neill specifically invoked § 2244(d)(1)(B), his lack of reference to § 2244(d)(1)(D) or specific profession of ignorance with respect to the factual predicate of a particular claim supports the conclusion that he is not entitled to a belated commencement of the limitation period under § 2244(d)(1)(B).
The Court may deny permission to amend a habeas petition where the amendment would be futile. See Ingram v. Buckingham Corr. Ctr., No. 3:09CV831, 2011 WL 836826, at *6 (E.D. Va. Mar. 4, 2011) ( citing United States v. Pittman, 209 F.3d 314, 317 (4th Cir. 2000)). That is the case here.