Full opinion text
MEMORANDUM OPINION AND ORDER REGARDING PETITIONER’S MOTION UNDER 28 U.S.C. § 2255 TO VACATE, SET ASIDE, OR CORRECT FEDERAL CAPITAL CONVICTIONS AND DEATH SENTENCES MARK W. BENNETT, District Judge. TABLE OF CONTENTS I. INTRODUCTION........................................................682 A. Factual Background .................................................682 B. Criminal Proceedings ................................................685 C. Section 2255 Proceedings .............................................688 D. Summary Of Claims..................................................692 II. VIABILITY OF “NEW” CLAIMS IN JOHNSON’S SECOND AND THIRD AMENDED § 2255 MOTIONS...........................................697 A. “New” Claims In The Second Amended § 2255 Motion...................697 1. Arguments of the parties..........................................697 a. The respondent’s argument....................................697 b. The petitioner’s argument.....................................697 c. The respondent’s reply ........................................699 2. Analysis.........................................................700 a. Deadlines for § 2255 claims....................................700 b. Timeliness of amendments.....................................706 i. Rule 15(a) ..............................................706 ii. Rule 15(b) ..............................................710 iii. Rule 15(c) and “relation back.”...........................713 c. Application of the standards...................................715 i. Preliminary matters.....................................715 ii. The challenged claims...................................716 B. The ‘New’ Claim In The Third Amended § 2255 Motion..................723 1. Arguments of the parties..........................................724 a. The petitioner’s argument.....................................724 b. The respondent’s argument....................................725 2. Analysis.........................................................726 a. Timeliness...................................................726 b. Futility......................................................728 c. Summary....................................................731 C. Summary Of Claims To Be Considered On The Merits...................732 III. STANDARDS APPLICABLE TO JOHNSON’S CLAIMS .....................736 A. Standards For § 2255 Relief...........................................736 1. Scope of the remedy...............................................736 2. Section 2255 relief in capital cases.................................738 3. Appellate review..................................................739 B. Ineffective Assistance Of Counsel......................................739 1. Ineffective assistance of trial counsel...............................740 a. Overview.....................................................740 b. Deficient performance.........................................740 i. Strategic choices........................................741 ii. Presumption of adequate representation...................742 iii. Role of ABA standards...................................742 c. Prejudice....................................................744 2. Ineffective assistance of appellate counsel..........................745 C. Cumulative Error....................................................745 1. Arguments of the parties..........................................746 a. The petitioner’s argument.....................................746 b. The respondent’s argument....................................748 c. The petitioner’s reply .........................................749 2. Cumulative effect of errors of counsel...............................749 a. Rejection in the Eighth Circuit................................751 b. Confiict with Supreme Court precedent.........................752 c. Cumulative error vs. multifaceted error.........................756 i. Strickland and multifaceted error.........................756 ii. Williams, Wiggins, and Porter............................758 iii. “Balkanized” review ....................................760 iv. Extent of multifaceted claims ............................762 3. Cumulative effect of other errors.................. 765 4. Cumulative error and unfairness of the trial........................767 5. The appropriate aggregations of allege d errors......................770 IV. ERRORS IN THE PRETRIAL PHASE....................................777 A. Claim 1: Failure To Pursue A Disposition For A Sentence Less Than Death.............................................................777 1. Deficient performance.............................................779 2. Prejudice........................................................783 a. Whether the petitioner was willing to plead guilty...............784 b. Whether the prosecution would have accepted a factual proffer that the petitioner was willing to make........... .787 c. Whether the Attorney General would have accepted a plea 788 d. Whether the prosecution ever offered a plea agreement....... 789 3. Summary.................................................... 790 B. Claim 2: Failure To Preclude A Timely Death Notice.............. 791 C. Claim 3: Failure To Raise Pre-Trial Meritorious Motions, Objections, And Arguments .................................... 792 V. ERRORS IN THE JURY SELECTION PHASE........................ 793 A. Claim 4: Counsel’s Failure To Investigate And Voir Dire Juror No. 55 Adequately................................................. 794 B. Claim 5: Juror No. 55’s Misconduct............................... 796 C. Claim 6: Errors Relating To Voir Dire On Pentecostal Religion And Women....................................................... 798 D. Claim 7: Failure To Raise Timely Motions And Objections......... 800 VI. ERRORS IN THE MERITS PHASE.................................. .801 A. Claims Relating To Demeanor And Competence.................... .801 1. Factual background......................................... .801 2. Errors of counsel involving demeanor and competence.......... .803 a. Claim 8: Failure to address the effect of medication........ .803 i. Arguments of the parties............................ .803 ii. Analysis........................................... .804 b. Claim 9: Failure to seek a competency hearing............. .809 3. Claim 10: Trial while incompetent............................ .812 B. Claims 11 through 16: Counsel’s Errors Relating To Investigation And Presentation Of A Merits Phase Defense.................... .813 VII. ERRORS IN THE MITIGATION PHASE ............................. 816 A. Counsel’s Errors In Confronting Aggravating Evidence............. 816 1. Applicable standards ........................................ 816 2. Claim 18: Failure to challenge the prosecution’s theory for DeGeus’s murder.......................................... .818 a. Arguments of the parties ................................. 818 b. Analysis................................................ 820 3. Claims 19, 20, and 21: Failure to confront the prosecution’s arguments that Johnson was “worse” than Honken........... 820 a. Arguments of the parties ................................. 821 b. Analysis................................................ 823 i. Admissions by the prosecutor........................ 823 ii. Other evidence that Honken was “worse” than Johnson......................................... 836 4. Claim 22: Failure to confront evidence of Johnson’s threatening manner................................................... 838 a. Arguments of the parties ................................. 839 b. Analysis................................................ 840 5. Untimely allegations of error................................. 841 6. Aggregate prejudice........................................... 842 B. Prosecutorial Misconduct......................................... 843 1. Claim 26: Failure to correct false testimony about Honken...... 843 a. Arguments of the parties .................................. 844 b. Analysis................................................ 845 2. Claim 27: Brady violation.................................... 848 a. The undisclosed evidence................................. 848 b. Arguments of the parties ................................. 850 c. Analysis................................................ 851 3. Claim 28: Inconsistent argument violation ..................... 859 a. Disclaimer and procedural default ........................ 860 i. Arguments of the parties............................. 860 ii. Analysis............................................ 860 b. The merits............................................... 861 i. Arguments of the parties............................. 861 ii. Analysis............................................ 862 4. Cumulative prejudice from the prosecutor’s misconduct.......... 865 C. Counsel’s Errors Involving The Mitigation Evidence Presented...... 865 1. Claims 29, 30, and 31: Poorly chosen mitigation witnesses....... 865 a. The witnesses at issue .................................... 865 b. Arguments of the parties .................................. 866 c. Analysis................................................. 867 2. Claim 32: Flawed use of the psychiatric pharmacologist......... 868 a. Arguments of the parties .................................. 868 b. Analysis................................................. 870 3. Claim 33: Untimely allegation of error regarding formulation of mitigating factors .......................................... 873 4. Aggregate prejudice........................................... 876 D. Counsel’s Errors In Investigating, Preparing, And Presenting Mitigation Evidence ........................................... 877 1. Errors relating to Johnson’s mental state at the time of the offenses.................................................... 877 a. Applicable standards...................................... 877 b. Claim 34: Failure to investigate and present evidence of Johnson’s mental state at the time of the offenses.......... 881 i. Arguments of the parties............................. 881 ii. Analysis............................................ 884 c. Claim 35: Errors relating to Dr. Gelbort.................... 891 i. Arguments of the parties............................. 891 ii. Analysis............................................ 893 d. Claim 37: Errors in failing to offer expert and lay testimony about Honken’s influence over Johnson................... 894 i. Arguments of the parties............................. 894 ii. Analysis............................................ 896 2. Claim 38: Errors relating to statement s of Phyllis Proscovec .... 898 3. Claim 41: Failure to introduce Johnson’s offer to plead guilty .... 898 a. Arguments of the parties .................................. 899 b. Analysis................................................. 900 4. Claims 36, 39, 40, 42, and 43: Untimely allegations of error....... 905 5. Claim 44: Unbriefed allegation of error concerning failure to prepare mitigation evidence from lay witnesses............... 907 6. Aggregate prejudice........................................... 908 E. Claim 45: Counsel’s Errors In Failing To Object To The Mitigation . Phase Determination And Evident Juror Confusion............... 908 VIII. ERRORS IN THE POST-TRIAL PHASE.............................. 909 IX. ERRORS ON APPEAL............................................... 909 X. EIGHTH AMENDMENT VIOLATIONS................................ 910 A. Cognizability In § 2255 Proceedings............................... 910 B. Claims Not Cognizable Under § 2255............................... 911 C. Cognizable Claims ............................................... 912 XI. SUMMARY OF CLAIM DISPOSITION................................. 913 XII. CONCLUSION 919 Angela Johnson seeks habeas relief from her 2005 federal convictions for five murders in furtherance of a continuing criminal enterprise (CCE murder), resulting in four death sentences and one life sentence. On June 21, 2005, following a lengthy trial, a jury imposed these sentences for the brutal murders of two adults and two children on July 25, 1993, and for the murder of Johnson’s ex-love interest, in a separate incident, on November 5, 1993. By the time Johnson went to trial, her separately tried co-defendant, Dustin Honken, had already been convicted as the “principal” on the same charges and sentenced to death for the killings of the children and life imprisonment for the killings of the adults. Even though Johnson was tried as an “aider and abettor,” ironically, she received the death penalty not only for the killings of the two children, as Honken had, but also for the killings of two of the adults, and life imprisonment for the killing of the third adult. I affirmed both Honken’s and Johnson’s convictions and death sentences in lengthy rulings on their post-trial motions. Johnson now seeks post-conviction relief in a 176-page Second Amended Motion Under 28 U.S.C. § 2255 (Civ. docket no. 263) (§ 2255 Motion), asserting 63 grounds for relief, and a proffered Third Amended Motion Under 28 U.S.C. § 2255 (Civ. docket no. 339), asserting a sixty-fourth ground for relief. I initially limited post-hearing briefing on her claims to 100 pages, although I later waived the page limitation, so Johnson eventually filed a post-hearing brief on the merits of her § 2255 Motion consisting of some 209 pages of argument in which she chose to brief 29 grounds for relief, without waiving or abandoning any others. The grounds that Johnson chose to emphasize in her post-hearing brief include the following: her attorneys’ failure to pursue a disposition for a sentence less than death before trial; her attorneys’ failure to adjust her medications or otherwise address the effects of her medication on her demeanor and competence during the merits phase of her trial; her attorneys’ failure to confront aggravating evidence, or to prepare and present an effective mitigation case, and prosecutorial misconduct during the penalty phase of her trial; and a claim that the Bureau of Prisons’ method of carrying out her execution would violate the Fifth and Eighth Amendments to the United States Constitution, the Administrative Procedures Act, and the Controlled Substances Act. This federal habeas proceeding nearly rivaled the complexity of Johnson’s trial. It involved 18 days of evidence, in four different phases, spanning most of 2011. Fifty-nine witnesses testified and thousands of pages of exhibits were admitted, followed by hundreds of pages of briefing and a full day of oral arguments. Although I find shockingly numerous and disturbing constitutional deficiencies in the performance of Johnson’s alarmingly dysfunctional trial team, the most imposing decisions for me are whether Johnson suffered any constitutional prejudice or demonstrated any other grounds for relief from either her convictions or death sentences. The Assistant United States Attorney who single-handedly represented the United States in this habeas proceeding and was lead counsel in both the Honken and Johnson trial prosecutions has throughout these more than decade-long proceedings represented the Department of Justice with unsurpassed skill, determination, unparalleled hard work, zealousness, civility, and professionalism. If there is a Medal of Honor for AUSAs for service to the DOJ and the nation, it should surely be given and worn proudly by Northern District of Iowa AUSA C.J. Williams. Johnson’s current habeas team was, unfortunately, the second one appointed. The first was removed for ethical reasons shortly before the scheduled hearing was to begin. This second team undertook the representation of Johnson literally at the eleventh hour and was forced to get up to speed on a case that literally had been abandoned by the first team. Indeed, I filed my first ethics complaint in my judicial career against the lead out-of-state lawyer on the first habeas team. The second team, like AUSA Williams, responded with unsurpassed skill, determination, unparalleled hard work, zealousness, civility, and professionalism. Their service to their client under extraordinarily difficult time pressures was remarkable and exemplified the highest calling of the capital defense bar and the legal profession. They, too, earned my unyielding respect and admiration. Lead counsel for the second habeas team was Michael Burt in San Francisco, California, who was ably assisted by Marcia A. Morrissey in Santa Monica, California, with additional support from Mohammed Ali Hamoudi and Nancy S. Pemberton, both in San Francisco, California. I am sure that most who come across this decision will now simply skip to the table at the end of this lengthy opinion that summarizes my disposition of each of Johnson’s claims for § 2255 relief — if they have not already done so. I cannot blame them, because I have found the process agonizing and the results disturbing. Nevertheless, I hope that those who do follow me step-by-step through all of the analysis that leads me to my often painful conclusions will understand those conclusions, even if they do not agree with them. I. INTRODUCTION A. Factual Background The factual and procedural background to Johnson’s convictions has been set forth in considerable detail, not only by this court, see United States v. Johnson, 403 F.Supp.2d 721 (N.D.Iowa 2005), but by the Eighth Circuit Court of Appeals, see United States v. Johnson, 495 F.3d 951, 957-60 (8th Cir.2007), cert. denied, 555 U.S. 828, 129 S.Ct. 32, 172 L.Ed.2d 46 (2008). A much more succinct recitation is appropriate here, where the focus is not on the evidence leading to Johnson’s conviction, but on the conduct of her trial counsel, the prosecution, and others before and during her trial. I will recount below any additional factual background specific to each of Johnson’s grounds for § 2255 relief in my legal analysis. The five persons murdered by Honken and Johnson in 1993 were Greg Nicholson, one of Honken’s drug dealers; Lori Duncan, with whom Nicholson had taken up residence just a short time before; Lori Duncan’s two daughters, Kandi (age 10) and Amber (age 6); and Terry DeGeus, another of Honken’s drug dealers and Johnson’s ex-boyfriend in what had been a stormy and physically abusive relationship. Nicholson and DeGeus were killed after Dustin Honken was indicted on drug charges, because Honken and Johnson feared that they had or might cooperate with law enforcement officers. Lori, Kandi, and Amber Duncan simply had the misfortune to be at home when Honken and Johnson came looking for Nicholson. Somewhat more specifically, in April of 1993, Honken was indicted on drug-trafficking charges. Honken and Johnson, who was by then Honken’s girlfriend and pregnant with his daughter, became concerned that Greg Nicholson had or would cooperate with law enforcement officers. Therefore, they made several attempts to find Nicholson, who had suddenly changed residences. They eventually discovered that Nicholson was living with Lori Duncan. On or about July 25, 1993, Johnson gained entry to the Duncans’ house by a ruse, and Honken arrived a short time later. Johnson had acquired a gun for Honken some time earlier. There is conflicting evidence on whether Johnson initially had the gun, produced it after gaining entry to the house, and used it to hold Nicholson and the Duncans until Honken arrived, or whether Honken had the gun when he arrived. The evidence at trial showed that, at least initially, Honken and Johnson used threats to the Duncans to extort a videotaped statement from Nicholson exonerating Honken of any drug-trafficking activity. However, Nicholson and the Duncans were eventually removed from the house at gunpoint and driven into the country in a ear that Johnson had borrowed from her babysitter. There, the adults were bound, gagged, and tortured, and all four victims were shot to death by Honken. Honken and Johnson then buried these four victims in a single shallow grave. In a separate episode, on or about November 5, 1993, approximately seven days after a grand jury had questioned Johnson about DeGeus’s involvement in Honken’s drug-trafficking activities, Johnson lured DeGeus to a meeting with Honk-en in a secluded location, where Honken shot him several times, then beat him with a baseball bat before he died. DeGeus was buried in another shallow grave a few miles from the burial site of Nicholson and the Duncans. Although law enforcement suspected Honken and Johnson in the disappearances of these five people, the victim’s bodies were not discovered at that time, and the 1993 drug charges against Honken were dropped. Honken was indicted again in 1996 on other federal drug charges, pleaded guilty to some of those charges in 1997, and commenced serving a long sentence, which I imposed on February 25, 1998. See Case No. CR 96-3004-MWB (N.D. Iowa) (docket no. 183); see also id. (docket no. 219) (amended judgment dated February 1, 2000). B. Criminal Proceedings On July 26, 2000, years after the disappearances of Nicholson, the Duncans, and DeGeus, Johnson was charged with seven non-capital crimes relating to their murders, even though their bodies still had not been found. On August 2, 2000, a very experienced federal criminal defense attorney from Cedar Rapids, Iowa, was appointed to represent Johnson. That attorney did not have any capital case experience, however. Unbeknownst to me, this attorney became Johnson’s self-proclaimed “lead counsel” after I appointed additional attorneys to represent Johnson. Therefore, I will refer to this attorney in this ruling as Lead Counsel. Another attorney, from Waterloo, Iowa, was appointed as co-counsel, but was later removed from the case, because of a potential conflict of interest arising from his prior representation of a possible witness against Johnson. Lead Counsel continued to represent Johnson through her indictment and trial on the capital charges against her. While Johnson was incarcerated after her arrest on those charges, she became acquainted with a jailhouse informant, Robert McNeese. Despite specific warnings from Lead Counsel not to talk to McNeese, because McNeese had informed on one of Lead Counsel’s prior clients, Johnson did talk to McNeese. McNeese convinced Johnson that he could get someone already serving a life sentence to confess to the killings, if she could give him information that would provide a credible basis for the false confession. Johnson provided McNeese with a map showing the locations where the five murder victims were buried and other information about the murders. McNeese turned the map and the other information over to law enforcement officers, and the bodies were recovered in October and November 2000. When Johnson heard the news that the first set of bodies had been recovered, she attempted to commit suicide. After recovery of the bodies made the death penalty a real possibility in Johnson’s case, but before capital charges were actually filed, I consulted the Federal Public Defender for the Northern and Southern Districts of Iowa, pursuant to 18 U.S.C. § 3005, concerning a recommendation for the appointment of counsel with the necessary qualifications to act as counsel “learned in the law applicable to capital cases....” See 18 U.S.C. § 3005. On December 12, 2000, pursuant to 18 U.S.C. § 3005, and upon the recommendation of the Federal Public Defender and my determination that he was exceptionally well-qualified, I appointed an attorney from Kansas City, Missouri, to serve as “learned” co-counsel for Johnson in this case along with Lead Counsel and Waterloo co-counsel. I will refer to that attorney in this ruling as Learned Counsel. Eventually, on March 12, 2001, at the request of Johnson’s counsel, and after Waterloo counsel withdrew, I appointed another attorney from Des Moines, Iowa, as additional co-counsel. I will refer to that attorney in this ruling as Co-Counsel. I determined that an attorney with Co-Counsel’s experience with the Sentencing Commission and his reputation for brief writing and appellate work would round out the skills of Johnson’s defense team. Honken and Johnson were eventually indicted in 2001, in separate indictments, on five capital charges of “conspiracy murder,” that is, murder while engaging in a drug-trafficking conspiracy, and five capital charges of “CCE murder,” that is, murder while working in furtherance of a continuing criminal enterprise (CCE), in violation of 21 U.S.C. § 848(e)(1)(A) and 18 U.S.C. § 2. They were tried separately, with Honken’s trial first in the late summer of 2004. Honken was convicted on all counts on October 14, 2004, and, on October 27, 2004, the jury made a binding recommendation that he be sentenced to death for the murders of the two children, with life imprisonment for the murders of the adults. In part because Honken had already been convicted as a “principal” in the murders, the prosecution elected to go to trial against Johnson only on the theory that she “aided and abetted” the killings. The prosecution also dismissed the non-capital counts against Johnson, from the 2000 indictment, prior to her trial. Jury selection in Johnson’s case took fifteen days in April and May 2005, and her trial eventually began on May 4, 2005. Although I had suppressed McNeese’s evidence, the Eighth Circuit Court of Appeals reversed that ruling, and Johnson’s confession to McNeese and the maps that she gave him were presented at trial, as well as her alleged confessions to other jailhouse informants and to a close friend, and copious other evidence of her involvement in the crimes. After ten days of evidence and a day of deliberations in the merits phase of her trial, the jury found Johnson guilty of all ten capital counts on May 24, 2005. In the eligibility phase, which began and ended on May 31, 2005, the jury returned a verdict finding Johnson “eligible” for the death penalty on all ten capital counts. The penalty or mitigation phase began on May 31, 2005, immediately after the eligibility phase verdict, and involved another six days of evidence and a hiatus before closing arguments. The jury began its deliberations on the penalty phase verdict on June 20, 2005, and returned a verdict on June 21, 2005, finding that Johnson should be sentenced to death for the murders of the two Duncan children, their mother, Lori Duncan, and Johnson’s ex-boyfriend, Terry DeGeus, but that Johnson should be sentenced to life imprisonment for the murder of Greg Nicholson. Thus, Johnson, the “aider and abettor,” received death sentences for four of the murders, including the murders of the two children, while Honken, the “principal,” received death sentences only for the murders of the two children. I denied Johnson’s post-trial motions on December 16, 2005. See United States v. Johnson, 408 F.Supp.2d 721 (N.D.Iowa 2005). Johnson continued to be represented on her direct appeal by Co-Counsel and Learned Counsel, but Lead Counsel did not participate further in the case. On July 30, 2007, the Eighth Circuit Court of Appeals affirmed Johnson’s convictions for “CCE murder,” but remanded the case to me to vacate Johnson’s multiplicitous convictions and sentences for “conspiracy murder.” See United States v. Johnson, 495 F.3d 951, 980-81 (8th Cir.2007). The United States Supreme Court denied Johnson’s petition for a writ of certiorari on October 6, 2008, see Johnson v. United States, 555 U.S. 828, 129 S.Ct. 32, 172 L.Ed.2d 46 (2008), and denied her petition for rehearing on December 8, 2008, see Johnson v. United States, 555 U.S. 1081, 129 S.Ct. 756, 172 L.Ed.2d 747 (2008). On June 11, 2009, I vacated Johnson’s five convictions and sentences for “conspiracy murder” as multiplicitous of her convictions and sentences for “CCE murder,” pursuant to the September 28, 2007, Mandate from the Eighth Circuit Court of Appeals. C. Section 2255 Proceedings On August 8, 2008, even before Johnson’s petition for writ of certiorari on her convictions had been denied, Johnson filed a Motion For Appointment Of Counsel To Pursue PosNConviction Remedies (Crim. docket no. 745) in her criminal case. I granted that motion on August 11, 2008, by appointing two attorneys to represent Johnson in her § 2255 proceedings. See Order (Crim. docket no. 749). Thus, Johnson had the assistance of counsel for more than a year before the deadline to file her anticipated § 2255 motion. On August 14, 2009, I also entered a Scheduling Order (Crim. docket no. 807) that set primary and back-up hearing dates on the anticipated § 2255 motion for May 3, 2010, and July 12, 2010, respectively. On October 5, 2009, Johnson filed her original Motion Under 28 U.S.C. § 2255 To Vacate, Set Aside, Or Correct Sentence By A Person In Federal Custody (Original § 2255 Motion) (Civ. docket no. 1), through appointed counsel. On October 29, 2009, I entered an Initial Review Order (Civ. docket no. 7) that required the respondent to file a response to Johnson’s § 2255 Motion by November 30, 2009, and the respondent did so. See Resistance To Plaintiffs Motion Under 28 U.S.C. § 2255 (Civ. docket no. 15). On January 12, 2010, Johnson, who was by then assisted by four attorneys, filed an Amended Motion Under 28 U.S.C. § 2255 To Vacate, Set Aside, Or Correct Sentence By A Person In Federal Custody (Civ. docket no. 23), and on January 21, 2010, Johnson filed a Corrected, Amended Motion Under 28 U.S.C. § 2255 To Vacate, Set Aside, Or Correct Sentence By A Person In Federal Custody (Corrected Amended § 2255 Motion) (Civ. docket no. 26). This prolix version of Johnson’s § 2255 motion asserted more than a dozen claims of ineffective assistance of trial counsel, two claims of prosecutorial misconduct, one claim of juror misconduct, and five other constitutional challenges to Johnson’s conviction or execution. The respondent filed an Amended Resistance To Plaintiffs Corrected, Amended Motion Under 28 U.S.C. § 2255 (Civ. docket no. 27) on February 4, 2010. By Order (Civ. docket no. 28), dated February 11, 2010, I reiterated the primary and back-up evidentiary hearing dates of May 3, 2010, and July 12, 2010. Those hearing dates were eventually reset more than once. On September 7, 2010, after the evidentiary hearing had been reset for October 4, 2010, I found it necessary to relieve Johnson’s lead § 2255 counsel of that role, to appoint new lead counsel, and to continue the evidentiary hearing yet again to March 7, 2011, to allow new lead counsel reasonable time to prepare. See Order Regarding Rescheduling Of Evidentiary Hearing And Withdrawal Of Lead Counsel (Civ. docket no. 67). Eventually, Johnson’s entire first team of § 2255 attorneys was replaced by her present team of four attorneys. There were numerous bumps in the road, concerning budgeting, timing, and subpoenaing of witnesses, before Johnson’s § 2255 motion came on for evidentiary hearing. On January 17, 2011, I entered an Order (Civ. docket no. 106) modifying the prior Scheduling Orders to set the evidentiary hearing in two parts, the first to begin on March 7, 2011, to run for seven consecutive days, and the second to begin on June 13, 2011, to run through June 21, 2011, including the weekend, if necessary, to accommodate scheduling of mental health testing, preparation and exchange of expert reports, and presentation of all of the anticipated evidence. Part I of the evidentiary hearing began on March 7, 2011, -with Johnson personally present, and continued for eight days, with testimony from numerous fact witnesses, including Johnson’s three trial attorneys, and submission of voluminous exhibits. At the conclusion of Part I on March 15, 2011, it became apparent that the scheduled hearing days in June would not be sufficient to submit all of the remaining evidence anticipated. Therefore, by Order (Civ. docket no. 198) entered March 18, 2011, I rescheduled Part II of the hearing for May 2, 2011, to run for six days, with what would be Part III to begin on June 13, 2011, and run through June 21, 2011. Part II of the evidentiary hearing began on May 2, 2011, again with Johnson personally present, and concluded on May 5, 2011, earlier than anticipated, probably in large part because I denied most of Johnson’s numerous requests for subpoenas for witnesses. Nevertheless, Part II of the hearing involved the testimony of twelve witnesses for Johnson, including prosecutors involved in plea negotiations, one of Dustin Honken’s trial attorneys, certain fact witnesses, and the continuation of testimony by one of Johnson’s trial attorneys. The respondent also presented brief testimony from the ease agent assigned to the case. Numerous exhibits were also submitted by Johnson and by the respondent. As anticipated at the conclusion of Part II of the evidentiary hearing, on June 1, 2011, Johnson filed a further amendment of her § 2255 Motion, her Second Amended Motion Under 28 U.S.C. § 2255 To Vacate, Set Aside, Or Correct Sentence By A Person In Federal Custody (Second Amended § 2255 Motion) (Civ. docket no. 263). The Second Amended § 2255 Motion clarified some claims, divided other portions of claims into separate claims, and added additional claims of ineffective assistance of appellate counsel. After I pointed out during Part III of the evidentiary hearing that there were discrepancies between the table of contents to the Second Amended § 2255 Motion and the pages on which claims were actually presented in the body of the Motion, Johnson filed a Corrected Table Of Contents For Second Amended Motion Under 28 U.S.C. § 2255 To Vacate, Set Aside, Or Correct Sentence By A Person In Federal Custody (Civ. docket no. 274) on June 14, 2011. Part III of the evidentiary hearing began on June 13, 2011, also with Johnson personally present, and ended on June 17, 2011. Although I had anticipated that this part of the hearing would involve primarily, if not exclusively, testimony of mental health experts, the evidence presented was rather broader in scope. Specifically, over four and a half hearing days, Johnson presented the testimony of the three mental health experts who testified on her behalf at trial as well as the testimony of one mental health expert consulted by her trial team, but not used at trial; three mental health experts hired by her § 2255 team; an expert on the legal literature regarding handwriting analysis; a Strickland expert; and a presenter of a lecture on mental health issues in capital cases from a death penalty seminar attended by one of Johnson’s trial attorneys. The respondent presented the testimony of one of Johnson’s treating psychiatrists from the Bureau of Prisons. Of course, voluminous exhibits accompanied the testimony of these witnesses. In an Order (Civ. docket no. 280), filed after the conclusion of Part III, I noted that, on June 17, 2011, Johnson had made on the record what I found was a knowing and voluntary waiver of her physical presence at Part IV of the evidentiary hearing and at the subsequent oral arguments on the merits of her § 2255 Motion, set for October 24, 2011. Therefore, I directed the United States Marshal to provide for Johnson’s return to the Bureau of Prisons facility in which she had been incarcerated, or to such other facility as the Bureau of Prisons determined was appropriate. Johnson did not appeal’ personally at any of the further proceedings on her § 2255 Motion. Before Part III of the evidentiary hearing, after Johnson made some additional revelations to one of her § 2255 mental health experts, it became clear that the respondent’s mental health expert should be allowed to conduct a further interview of Johnson and to prepare a supplemental report before he testified. Therefore, I set Part IV of the evidentiary hearing for two days beginning August 11, 2011, to receive the testimony of the respondent’s mental health expert. However, Part IV was subsequently reset for August 9, 2011, owing to an unanticipated scheduling conflict. See Order (Civ. docket no. 290). Although I had established a longer post-hearing briefing schedule before Part III of the evidentiary hearing, see Order (Civ. docket no. 255), it appeared to me at the conclusion of Part III that a shorter briefing schedule and shorter, more focused briefs would be appropriate in this case. Therefore, after some discussion with the parties concerning briefing deadlines and the issues on which I was particularly interested in receiving briefing, I entered an Order (Civ. docket no. 279) on June 17, 2011, setting a briefing schedule to be completed by October 21, 2011, limiting the petitioner’s and the respondent’s opening briefs to 100 pages each, limiting the petitioner’s reply brief to 50 pages, and setting oral arguments on the merits of Johnson’s § 2255 Motion for October, 24, 2011. Owing to scheduling conflicts, the respondent was given an extension to and including July 8, 2011, to file a resistance to Johnson’s Second Amended § 2255 Motion, but actually filed its Amended Answer To Petitioner’s Second Amended Motion To Vacate, Set Aside, Or Correct Conviction And Sentence Pursuant To 28 U.S.C. § 2255 (Amended Answer To Second Amended § 2255 Motion) (Civ. docket no. 285) on July 5, 2011, before that deadline. As I had authorized during Part III of the evidentiary hearing, the respondent limited this Answer to disputing whether certain of Johnson’s claims in her Second Amended § 2255 Motion related back to claims raised in her Original § 2255 Motion. By Order (Civ. docket no. 286), filed July 5, 2011, I found that the threshold question of whether certain claims related back and, thus, should be resolved on the merits, warranted separate briefing. Therefore, I set deadlines and page limits for such separate briefing. On August 19, 2011, Johnson filed her Reply To Government’s Amended Answer (Civ. docket no. 309) , responding to the respondent’s contentions that certain claims did not relate back. The respondent filed a Response To Petitioner’s Reply To The Government’s Amended Answer (Civ. docket no. 310) on August 26, 2011. As I reviewed petitioner’s claims after Part III of the evidentiary hearing, I found her claim identification, tied to headings in the various versions of her § 2255 Motion, to be cumbersome and confusing, and the order in which the claims were asserted to be haphazard. Consequently, I reorganized Johnson’s claims for § 2255 relief by phases of her trial, rather than in the order in which her § 2255 counsel presented them, and renumbered them consecutively. While my reorganization may be as idiosyncractic as Johnson’s, it at least has the advantage of addressing her claims in chronological order, thus more clearly defining what phase or phases of the trial are affected, if relief on one or more claims is appropriate. By Order (Civ. docket no. 287), filed July 6, 2011, I directed the parties to use the claim numbers that I had assigned in all further briefing, as indicated in a Claim Chart. That Claim Chart showed the petitioner’s claims as I have renumbered them, then as identified in the table of contents to her Second Amended § 2255 Motion (Civ. docket no. 263). In that Claim Chart, I simplified Johnson’s statements of her claims and inserted some summary “leaders” for claims that I had grouped together by topic (e.g., “Juror No. 55,” “Demean- or and competence,” “Investigation and presentation”). On July 12, 2011, also after further review of Johnson’s Second Amended § 2255 Motion and prior versions of her motion, I entered another Order (Civ. docket no. 291), inviting the parties to address in their “merits” briefs the effect of the petitioner’s apparent disclaimer of Claim 28 in the earlier version of her § 2255 Motion. Part IV of the evidentiary hearing began and ended on August 9, 2011. As anticipated, the only witness in that part of the evidentiary hearing was the respondent’s mental health expert, who had also been retained for Johnson’s trial, but not used, and who had subsequently examined her in relation to the § 2255 proceedings. At the conclusion of Part IV, I revisited the question of whether or not page limits were appropriate for the parties’ “merits” briefs. I concluded that they were not, particularly because this was a capital habeas case. I did, however, indicate that there were certain claims on which I desired briefing and other claims on which I felt I did not need or want briefing, although I left the parties free to brief any issues they chose. On September 2, 2011, Johnson filed her Corrected Post Hearing Briefing In Support Of Second Amended Motion Under 28 U.S.C. § 2255 To Vacate, Set Aside, Or Correct Sentence By A Person In Federal Custody, And Request To File Additional Briefing (Corrected Post-Hearing Brief) (Civ. docket no. 314). This brief included 209 pages of argument on 29 of her 63 claims. By Order (Civ. docket no. 315), filed September 6, 2011, I denied Johnson’s request for additional briefing, to which, ironically, she had dedicated all 5 pages of the “Introduction” to her Corrected Post-Hearing Brief. On October 3, 2011, the respondent filed its Post-Hearing Brief In Resistance To Petitioner’s Motion Under 28 U.S.C. § 2255 (Post-Hearing Resistance Brief) (Civ. docket no. 325), consisting of 146 pages of argument. Johnson filed a Reply (Civ. docket no. 340) on October 21, 2011, consisting of 176 pages of argument. Also on October 21, 2011, Johnson filed another Motion To Amend Second Amended Motion Under 28 U.S.C. § 2255 To Vacate, Set Aside, Or Correct Sentence By A Person In Federal Custody Pursuant To Federal Rule Of Civil Procedure 15(a)(2) And (c) And Local Rule 15 (Civ. docket no. 339). In that motion, Johnson sought leave to file a Third Amended § 2255 Motion to add an additional claim that she was constitutionally entitled to an instruction that the “reasonable doubt” standard governed the jurors’ decision about whether aggravating factors sufficiently outweighed mitigating factors to warrant imposition of the death penalty, and that her trial and appellate counsel were ineffective in failing to raise this claim, relying on the August 3, 2011, decision of the Sixth Circuit Court of Appeals in United States v. Gabrion, 648 F.3d 307, 325 (6th Cir.2011). Because I was aware that counsel for the respondent had been involved in an evidentiary hearing on the § 2255 Motion filed by Johnson’s co-defendant, Dustin Honk-en, shortly before the respondent’s response to Johnson’s motion to amend was due, I sua sponte extended the respondent’s deadline to respond to that motion until November 18, 2011, so that the respondent could be fully heard on the matter. The respondent filed its Resistance To Petitioner’s Motion To Amend, For The Third Time, Her Motion To Vacate, Set Aside, Or Correct Conviction And Sentence Pursuant To 28 U.S.C. § 2255 (Civ. docket no. 366) on November 14, 2011, ahead of the deadline. I heard oral arguments on the merits of Johnson’s § 2255 Motion, as amended, on October 24, 2011. As with all of the other proceedings in this case, Johnson’s “new” § 2255 team and counsel for the respondent performed with consummate ability, zeal, and professionalism. Thus, the oral arguments provided invaluable observations about the merits of Johnson’s claims. At the conclusion of the oral arguments, I found that only one issue required further briefing, the law applicable to “cumulative error” in the Eighth Circuit. Therefore, I set deadlines for briefing on that issue. Johnson filed her Brief On Cumulative Error In The Eighth Circuit (Civ. docket no. 345) on November 7, 2011; the respondent filed its Brief On Cumulative Error In The Eighth Circuit (Civ. docket no. 367) on November 15, 2011; and Johnson filed her Reply To Government’s Brief On Cumulative Error In The Eighth Circuit (Civ. docket no. 368) on December 1, 2011. In short, the evidentiary hearing on Johnson’s § 2255 Motion involved four “phases” and 18 days of evidence, testimony of 58 witnesses, and submission of many thousands of pages of documentary evidence, and it concluded, on day 19, with six hours of oral arguments on the merits of Johnson’s claims for § 2255 relief. All briefs have now been filed, and this matter is now fully submitted. D. Summary Of Claims As indicated above, Johnson makes 63 claims for post-conviction relief in her Second Amended § 2255 Motion (Civ. docket no. 263), including claims based on ineffective assistance of counsel, prosecutorial misconduct, juror misconduct, and other claims that her conviction or execution would violate the Eighth Amendment to the United States Constitution. She has asserted a sixty-fourth claim for relief in a proffered Third Amended § 2255 Motion (Civ. docket no. 339). However, she chose to brief only 29 of those claims in her Corrected Post-Hearing Brief (Civ. docket no. 314). The attached Claim Chart shows Johnson’s claims as I have renumbered them, then as identified in the table of contents to her Second Amended § 2255 Motion. As also indicated above, I have simplified Johnson’s statements of her claims and inserted some summary “leaders” for claims that I have grouped together (e.g., “Juror No. 55,” “Demeanor and competence,” “Investigation and presentation”). Although I reorganized the 63 claims in the Second Amended § 2255 Motion into chronological order, at least by phases of the trial, the sixty-fourth claim, in the proffered Third Amended § 2255 Motion, is a mitigation phase claim. Therefore, Claim 64 has been interpolated after Claim 46 as the “last” claim concerning the mitigation phase. Claims that were ultimately briefed in Johnson’s Corrected Post-Hearing Brief are shown in bold. _GROUNDS FOR JUDGMENT OF ACQUITTAL OR NEW TRIAL_ _PRETRIAL PHASE_ Court’s Claim Petitioner’s Claim (Claims in bold were briefed) No._Claim No._,_ 1. One, § A Failure to pursue a disposition for a sentence of less _than death_ 2. One, § B Failure to proceed to trial at a time that would have precluded the government from filing a timely notice of _intent to seek the death penalty__ 3. One, § DD.a-c, f Failure to timely and effectively make a number of meritorious motions, objections, and arguments _JURY SELECTION_ Court’s Claim Petitioner’s Claim (Claims in bold were briefed) No._Claim No._ _4_One, § C.l Juror No. 55: Ineffective voir dire_ _5,_Six_Juror No. 55: Misconduct by Juror_ 6. One, § C.2 Failure to structure voir dire to identify jurors with _prejudicial views on Pentecostal religion and women 7. One, § DD.e, g Failure.to timely and effectively (a) re-urge Johnson’s motion for change of venue and (b) object to the manner in which peremptory challenges were allocated _MERITS PHASE_ Court’s Claim Petitioner’s Claim (Claims in bold were briefed) _No,_Claim No._ 8. One, § D Demeanor and competence: Failure to reduce petitioner’s medication or to address the effects of the medication on (a) her demeanor at trial and (b) her ability to participate in her own defense, in _violation of her right to due process and a fair trial 9. One, § E Demeanor and competence: Failure to seek a _competency hearing_ 10. Five Demeanor and competence: Petitioner was tried while incompetent, in violation of the Fifth, Sixth, and Eighth _Amendments, to the United States Constitution_ 11. One, §§ F and Investigation and presentation: Failure to investigate H.l Robert McNeese or to impeach him with the court’s _findings regarding his credibility at the Massiah hearing 12. One, §§ F and Investigation and presentation: Failure to investigate _H2_and effectively examine Christie Gaubatz_ 13. One, § T Investigation and presentation: Failure to effectively _ cross-examine Wendy Jensen_ 14. One, §§ F and I Investigation and presentation: Failure to present evidence of Terry DeGeus’s involvement in the killing of _Gregory Nicholson and the Duncans_ 15. One, § F Investigation and presentation: Failure to use a forensic expert or to investigate Phyllis Proscovee, the gun shop _owner, an after-acquired evidence theory, or an alibi 16. One, § G Investigation and presentation: Presentation of a “mere presence” defense without investigation and despite petitioner’s repeated assertions that she was not present at _the Nicholson/Duncan killings_ 17. One, § JJ, Seven Cumulative errors render the petitioner’s conviction _constitutionally infirm_ MITIGATION PHASE_ Court’s Claim Petitioner’s Claim (Claims in bold were briefed) No,_Claim No._ 18. One, § J Confrontation of aggravating evidence: Failure to present evidence of battered woman’s syndrome to explain the relationship between petitioner and Terry DeGeus to rebut the prosecution’s theory of her _motive for killing him_ 19. One, § M Confrontation of aggravating evidence: Failure to present readily available evidence about Dustin Honken to refute the prosecution’s argument that _Angela Johnson was “worse” than Honken_ 20. One, § N Confrontation of aggravating evidence: Failure to use the prosecution’s arguments at Dustin Honken’s trial as party admissions to rebut the government’s _evidence that petitioner was “worse” than Honken 21. One, § P Confrontation of aggravating evidence: Failure to discover and present information regarding Dustin Honken’s plans to kill prosecutor Reinert and his family and Honken’s membership in a white _supremacist prison organization_ 22. One, § Q Confrontation of aggravating evidence: Failure to address aggravating evidence at the merits and _mitigation phases of the trial_ 23. One, § R Confrontation of aggravating evidence: Failure to limit future dangerousness evidence to future danger _in prison_ 24. One, § S Confrontation of aggravating evidence: Failure to object to Kathy Rick’s triple hearsay testimony about _petitioner’s alleged possession of a gun_ 25. One, § U Confrontation of aggravating evidence: Failure to object to Kyla Davis’s testimony that petitioner tried _to find out where she lived and what car she drove 26. Two Prosecutorial misconduct: The prosecution’s failure to correct false testimony at Angela Johnson’s trial violated the Fifth and Eighth Amendments to the _United States Constitution_ 27. Three Prosecutorial misconduct: The prosecution’s violation of Brady v. Maryland by failing to disclose Dustin Honken’s planned violent attack on the trial prosecutor and his association with a white _supremacist prison organization_ 28. Four Prosecutorial misconduct: The prosecution’s violation of the petitioner’s rights under the Sixth and Eighth Amendments and the Due Process Clause by presenting inconsistent arguments at her trial and _that of her co-defendant_ 29. One, § BB.l Ineffective mitigation: The testimony of Holly Dirksen 30. One, § BB.2 Ineffective mitigation: The testimony of Douglas _Book_ 31. One, § BB.3 Ineffective mitigation: The testimony of Susan _Marsolek_ 32. One, § CC Ineffective mitigation: Failure to provide psychiatric pharmacologist Roswell Lee Evans with data regarding petitioner’s drug history, rendering his expert _testimony virtually irrelevant_ 33. One, § EE Ineffective mitigation: Use of multi-faceted, overly-complicated yet incomplete mitigating factors for the jury to weigh rather than simple, straight-forward _facts that encompassed all of the mitigation_ 34. One, § K Failure to prepare mitigation: Failure to investigate and present evidence regarding Angela Johnson’s _mental state at the time of the offenses_ 35. One, § Y Failure to prepare mitigation: Delay in hiring Dr. Gelbort, and failure to follow-up on his recommendations, to instruct him to conduct a more thorough battery of neuropsychological tests, to retain another neuropsychologist when Dr. Gelbort inexplicably refused to testily, to incorporate his helpful findings and diagnosis into the testimony of the experts who did testily, and to conduct additional neuropsycholog_ical and neuroimaging testing of petitioner_ 36. One, § Z Failure to prepare mitigation: Failure to introduce evidence of, and give the trial experts records concerning, the 1996 diagnosis of petitioner with depres_sion and dependent personality features_ 37. One, § O Failure to prepare mitigation: Failure to offer expert and lay testimony that Angela Johnson was under the _substantial influence of Dustin Honken_ 38. One, § L.l Failure to prepare mitigation: Failure to introduce the statements of Phyllis Proscovec to support _residual doubt_ 39. One, § L.2 Failure to prepare mitigation: Failure to offer Dustin Honken’s letters to impeach the mitigation phase testimony of Steven Vest to support residual _doubt_ 40. One, § L.3 Failure to prepare mitigation: Failure to impeach Steven Vest by presenting evidence that Honken lied about petitioner’s role in the offenses to support _residual doubt_ 41. One, § V Failure to prepare mitigation: Failure to introduce petitioner’s offer to plead guilty as evidence in _mitigation_ 42. One, § W Failure to prepare mitigation: Failure to present _evidence of remorse through expert testimony_ 43. One, § X Failure to prepare mitigation: Failure to elicit evidence of the effect of petitioner’s execution on her _family members_ 44. One, § AA Failure to prepare mitigation: Ineffective presentation _of mitigation evidence through the lay witnesses_ 45. One, § DD.h-i Failure to timely and effectively object to the mitigation phase determination and confusion evident from the jury’s findings 46. One, § JJ, Seven Cumulative errors render the petitioner’s sentence con_stitutionally infirm_ 64. (3rd § 2255 Petitioner was constitutionally entitled to have her pen-Motion) Twelve alty jury instructed that the reasonable doubt standard governed their decision whether aggravating factors sufficiently outweighed mitigating factors and to the extent that this claim cannot now be considered because trial or appellate counsel should have raised the claim, they were _constitutionally ineffective for failing to do so_ POST-TRIAL AND APPEAL Court’s Claim Petitioner’s Claim (Claims in bold were briefed) No,_Claim No,_ 47. One, § DD.d Ineffective post-trial motions: Failure to timely and effectively make a number of meritorious arguments in _post-trial motions_ 48. One, § FF.2 Ineffective post-trial motions: Failure to raise Juror No. _55’s failure to honestly answer questions on voir dire 49. One, § GG Ineffective appeal: Failure to raise all components of the _misconduct by Juror No. 55_ 50. One, § HH Ineffective appeal: Failure to litigate the prosecution’s inconsistent theories as to Dustin Honken and Angela _Johnson_ 51. One, § II Ineffective appeal: Failure to raise the unconstitutional _skewing effect of multiplicitous counts_ 52. One, § DD.j-o Ineffective appeal: Failure to raise a number of _meritorious arguments_ 53. One, § JJ, Seven Ineffective appeal: Cumulative errors of appellate counsel render the petitioner’s sentence constitutionally _infirm_ _EIGHTH AMENDMENT VIOLATIONS_ Court’s Claim Petitioner’s Claim (Claims in bold were briefed) No._Claim No. _ 54. Eight The Eighth Amendment requires a heightened standard _of proof for imposition of the death penalty_ 55. Nine Petitioner suffers from severe mental illness and the _Eighth Amendment precludes her execution_ 56. Ten The Bureau of Prisons’ method of carrying out the petitioner’s execution by lethal injection violates the Fifth and Eighth Amendments, the Administrative _Procedure Act, and the Controlled Substances Act _57._Ten, § A.1 Baze claim: Executioner incompetence_ _58,_Ten, § A.2 Baze claim: Drug administration deficiencies_ _59,_Ten, § A.3 Baze claim: Lack of safeguards_ 60. Ten, § B There are readily available alternatives that would substantially reduce the risks of maladministration and in__humane executions_ 61. Ten, § C Whether the BOP’s new protocol is constitutional even under Baze cannot be answered without further discov_ery _ 62. Ten, § D The Baze decision does not have any impact on petitioner’s Administrative Procedures Act and Controlled Sub_stances Act Claims_ _63,_Eleven_The death penalty violates the Eighth Amendment_ II. VIABILITY OF “NEW” CLAIMS IN JOHNSON’S SECOND AND THIRD AMENDED § 2255 MOTIONS The respondent asserts that 21 of Johnson’s claims in her Second Amended § 2255 Motion — 20 claims of ineffective assistance of counsel and 1 claim of prosecutorial misconduct — are new, do not “relate back,” and, consequently, are time-barred. Johnson also seeks leave to add yet another claim in a Third Amended § 2255 Motion, which the respondent also argues should be barred. Thus, before I consider the merits of any of Johnson’s claims for § 2255 relief, I must determine whether or not all of her claims in her Second Amended § 2255 Motion “relate back” to the filing of her original § 2255 Motion or are otherwise deemed timely and whether or not her Third Amended § 2255 Motion should be allowed. A. “New” Claims In The Second Amended § 2255 Motion 1. Arguments of the parties a. The respondent’s argument In its Amended Answer To Second Amended § 2255 Motion (Civ. docket no. 285), the respondent argues that § 2255 contains a one-year statute of limitations that, on its face, bars those portions of Johnson’s Second Amended § 2255 Motion that advance new claims for relief, as opposed to a clarification or actual supplementation of an existing claim. The respondent argues that Johnson’s Second Amended § 2255 Motion was filed well after the expiration of the applicable one-year limitations period on October 6, 2009, so that any new claims that do not “relate back” to claims raised in her original § 2255 motion are barred. The respondent argues that 21 claims in Johnson’s Second Amended § 2255 Motion do not relate back, because they are based on entirely novel premises, do not merely clarify, amplify, or expand any timely claims, and are not grounded in facts or legal arguments made in her Original § 2255 Motion. The respondent points out that the Supreme Court has warned that expansive interpretations of a petitioner’s pleadings would eviscerate the statute of limitations for § 2255 claims, thereby permitting virtually any amendment without regard to the statute of limitations. The respondent also argues that Johnson has made no attempt to show that extraordinary circumstances beyond her control prevented her from raising the 21 challenged claims earlier in these proceedings. b. The petitioner’s argument In her Reply To Government’s Amended Answer (Civ. docket no. 309), Johnson contends that the respondent myopically focuses not on the substance of her claims, but on whether, under Rule 15(c) of the Federal Rules of Civil Procedure, the 21 challenged claims can “relate back” to her Corrected Amended § 2255 Motion (Civ. docket no. 26), filed by predecessor § 2255 counsel. Even if the proper focus is on what Johnson calls “procedural niceties,” she argues that the “relation back doctrine” is just one procedural rule that I must consider. She argues that Rules 8, 15, and 54(c) of the Federal Rules of Civil Procedure are also relevant to her novel set of circumstances and that the policies behind those rules favor considering on the merits the claims that respondent challenges as untimely. More specifically, she contends that neither the letter nor the spirit of Rule 8, which requires only a short and plain statement of a claim, requires the court to concentrate on whether predecessor counsel spelled out each of the 21 challenged claims with the specificity that the respondent now demands. She argues that the respondent’s complaints about lack of specificity of the prior pleading ring hollow, where the respondent did not bring a Rule 12(e) motion for a more definite statement. She also argues that the prior pleading asserted that her broadly-stated claims “include those stated as well as others to be developed following further investigation, discovery, access to this Court’s s