Does Claim 5(Q) relate back to Claim 5 (D)?
The following excerpt is from Gray v. Hill, No. 2:14-cv-1047-JAM-EFB P (E.D. Cal. 2015):
Petitioner suggests that Claim 5(Q) relates back to Claim 5(D). ECF No. 17 at 10. However, as explained in the analysis of whether petitioner exhausted Claim 5(Q), although both claims allege prosecutorial misconduct, the claims are based on different facts. See Ha Van Nguyen v. Curry, 736 F.3d 1287, 1297 (9th Cir. 2013) (explaining that "the 'time and type' language in Mayle . . . . refers to the facts that support those grounds"). Accordingly, Claim 5(Q) does not relate back to Claim 5(D).
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