This matter comes before the court on Petitioner's petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254.
Petitioner Michael Allstead is a state prisoner currently incarcerated at the Folsom State Prison in Represa, California. He filed this petition for writ of habeas corpus to challenge his Sacramento County convictions for transporting methamphetamine, possessing methamphetamine for sale, and eluding a police officer. Respondent filed an answer and relevant portions of the record. Allstead raises four issues in his petition, which have all been properly exhausted before the California state courts: prejudicial joinder, prejudicial admission of evidence, ineffective assistance of counsel, and a challenge to his upper-term sentence. A review of the record shows the California Court of Appeal, Third Judicial District, correctly applied United States Supreme Court law in rejecting all four claims. 28 U.S.C. § 2254(d). Accordingly, the petition is denied and the case is dismissed with prejudice.
Allstead filed this petition for writ of habeas corpus to challenge his Sacramento County Superior Court convictions and resulting sentence of twenty years' imprisonment.
On March 23, 2003, at about 10:30 p.m., Sacramento County Sheriff's deputies saw a Chevrolet Blazer at a parking lot in Sacramento. Allstead was in the driver's seat and his co-defendant, Michael Harrell, was in the passenger seat. The deputies knew defendant was a convicted felon and were informed he might be armed with a .45 caliber firearm.
Deputies Beamer and Baugh approached the Blazer in separate marked patrol cars with their lights and sirens on. The Blazer drove away at about 40 miles per hour, traveled a few blocks, then stopped. Defendant and Harrell got out of the Blazer and fled on foot. The officers each took a police dog from his patrol car and Beamer yelled at Allstead and Harrell that the dogs would be sent after them if they did not stop. When neither man stopped, the dogs were released. They caught, bit, and subdued Allstead and Harrell.
Deputy Baugh approached Harrell, who was lying on his stomach. On the ground about two or three inches from Harrell's pants pocket were two baggies containing heroin and methamphetamine. The officers identified Harrell and took possession of the baggies.
Law enforcement officers found a foot powder container with a hidden compartment that held three bags of methamphetamine about three feet from the passenger side of the Blazer.
The Blazer was registered to Allstead. A duffel bag found inside the Blazer contained unused hypodermic needles; plastic baggies, including some with white powder residue; $42 in quarters; a digital scale; a paper with notations; and a letter addressed to Allstead.
No drugs were found on Allstead's person or in the Blazer. Upon searching Allstead, the officers found, among other things, $344 in cash, a cellular telephone, and two "pay-owe" sheets.
Defendant presented evidence that he was a coin collector who bought, sold, and traded coins. In his summation, defendant's counsel argued that defendant was a drug addict and a coin collector. The drug addiction explained the hypodermic needles found in the duffel bag. The coin collecting explained the 200 quarters found in the Blazer and the papers denoting amounts paid and owed.
Lodged Document 4 at 8.
Allstead was convicted by a jury of transporting methamphetamine (Cal. Health Safety Code § 11379(a) (West 2007)), possessing methamphetamine for sale (Cal. Health Safety Code § 11378 (West 2007)), and eluding a police officer (Cal. Veh. Code § 2800.1(a) (West 2007)). He was sentenced to twenty years in state prison.
Petitioner timely appealed to the California Court of Appeal, Third Appellate District. After briefing by the parties, the Third District Court of Appeal affirmed Allstead's conviction and sentence. Petitioner timely petitioned the California Supreme Court for review. On June 15, 2005, the Supreme Court denied the petition for review without prejudice as to any relief to which Allstead might be entitled after the court determined in People v. Black, S126182 and People v. Towne, S125677, the effect of Blakely v. Washington, 542 U.S. 296 (2004), on California law. Respondent warden concedes that Petitioner Allstead has exhausted his four stated grounds for relief.
1. Denial of his motion to sever resulted in violation of his rights to due process and a fair trial.
2. The trial court erred by permitting evidence of petitioner's prior arrests for possession and sale of methamphetamine at trial.
3. He was denied effective assistance of counsel because his attorney opened the door to prejudicial evidence.
4. His sentence violates his rights to due process and a jury trial under Blakely v. Washington, 542 U.S. 296 (2004).
A habeas corpus petition shall not be granted with respect to any claim adjudicated on the merits in the state courts unless the adjudication either (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established federal law as determined by the Supreme Court; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented to the state courts. 28 U.S.C. § 2254(d). Under the "contrary to" clause, a federal habeas court may grant the writ if the state court arrives at a conclusion opposite to that reached by the Supreme Court on a question of law or if the state court decides a case differently than the Supreme Court has on a set of materially indistinguishable facts. Williams v. Taylor, 529 U.S. 362, 412-413 (2000). Under the "unreasonable application" clause, a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from the Supreme Court's decisions but unreasonably applies that principle to the facts of the prisoner's case. Id.
A determination of a factual issue by a state court is presumed correct, and the applicant has the burden of rebutting the presumption of correctness by clear and convincing evidence. 28 U.S.C. § 2254(e)(1).
Allstead first claims that the superior court's denial of his motions to sever his trial from that of co-defendant Harrell violated his right to due process and a fair trial. Allstead twice moved to sever the trials on the grounds that Harrell's testimony would present an inconsistent defense, and that by taking the stand, Harrell exposed himself to impeachment by his prior record of criminal activity. In particular, Allstead was concerned that the jury would hear evidence of Harrell's membership in the Sacra Maniacs gang and the fact of the gang's involvement in narcotics trafficking. Allstead has "Sacra Maniacs" tattooed across his forehead. The trial court denied the motion but offered a limiting instruction.
A court may grant habeas relief based on a state court's decision to deny a motion for severance only if the joint trial was so prejudicial that it denied a petitioner his right to a fair trial. Zafiro v. United States, 506 U.S. 534, 538-39 (1993) (a court should grant severance "if there is a serious risk that a joint trial would compromise a specific trial right of one of the co-defendants, or prevent the jury from making a reliable judgment about guilt or innocence.").
We first consider Allstead's motion to sever on the ground that Harrell's testimony would have presented an inconsistent defense. Antagonistic defenses "are not prejudicial per se," even if defendants are hostile to or seek to blame one another. Zafiro, 506 U.S. at 538. In this case, the two defendants could hardly be called antagonistic. Contrary to Allstead's claims, Harrell did not actually provide "direct evidence that [Allstead] possessed the drugs." In fact, he testified he never saw Allstead use or sell drugs. Lodged Document 4 at 6-7. The trial court properly denied Allstead's initial motion to sever because Harrell did not testify that the items found in and around the Blazer belonged to Allstead. Harrell's testimony merely restated the circumstantial evidence presented to the jury: there were drugs and paraphernalia in the car, and the car belonged to Allstead. By its verdict, the jury obviously chose not to credit the proferred defense testimony. That is not evidence of unfair prejudice.
The jury in this case would not have had to convict any defendant if it had acquitted another. As the trial court concluded, "Harrell's denials of ownership of and possession of the drugs were similarly circumstantial as to [Allstead]: they neither directly proved [Allstead's] ownership or possession nor precluded him from arguing that the drugs belonged to someone else." Lodged Document 4 at 6-7. Thus, the two defendants' theories were not antagonistic "to the point of being irreconcilable and mutually exclusive," United States v. Sherlock, 962 F.2d 1343, 1363 (9th Cir. 1992), such "`that the acceptance of the co-defendants theory by the jury precludes acquittal of the defendant,'" United States v. Johnson, 297 F.3d 845, 858 (9th Cir. 2002) (quoting United States v. Hanley, 190 F.3d 1017, 1028 (9th Cir. 1999). Therefore, the trial court's denial of Allstead's motion to sever on the ground of inconsistent defenses was not contrary to or an unreasonable application of federal law.
whether the jury can reasonably be expected to compartmentalize the evidence as it relates to separate defendants, in view of its volume and the limited admissibility of some of the evidence. The prejudicial effect of evidence relating to the guilt of codefendants is generally held to be neutralized by careful instruction by the trial judge.
United States v. Escalante, 637 F.2d 1197, 1201 (9th Cir. 1980) (internal citations omitted); see also Johnson, 297 F.3d at 855 ("Additionally, if the district court attempted to cure any risk of prejudice with proper limiting instructions, a defendant must also show that the curative instructions were inadequate."); Lambright v. Stewart, 191 F.2d 1181, 1186 (9th Cir. 1999).
Here, the trial court offered a careful limiting instruction. When Allstead's attorney renewed his motion for severance, the trial judge properly responded, "The Court believes that the issue of the information regarding the Sacra Maniacs and the affiliation with drugs can easily be handled by a limiting instruction that that information and that evidence is specifically relating to Mr. Harrell and Mr. Harrell alone." CR at 680. Just before the jury retired to commence deliberations, the trial judge reiterated the limiting instruction: "Evidence has been admitted against one of the defendants and not admitted against the other. At the time this evidence was admitted you were instructed that it should not be considered by you against the other defendant. Do not consider this evidence against the other defendant." CR at 859. Therefore, even if the introduction of evidence of Harrell's gang affiliation was detrimental to Allstead, the limiting instruction sufficiently curbed any possible prejudice. Where the evidence presented as a result of the joint trial was "sufficiently dealt with through limiting instructions," there is no manifest prejudice for purposes of federal law. See Johnson, 297 F.3d at 857.
In considering whether a joint trial was unduly prejudicial, the reviewing court may also consider the weight of evidence introduced against the co-defendants in light of the independent evidence of the petitioner's guilt or innocence. See Johnson, 297 F.3d at 856. Here, even if evidence that Harrell was a gang member might have been somewhat damaging to Allstead's defense, it was insignificant in light of the extensive independent evidence of Allstead's guilt. This independent evidence included: Allstead's flight from police officers; the discovery of pay-owe sheets, a cell phone, cash, syringes, a digital scale, and plastic baggies in Allstead's car; and a canister with a false bottom containing methamphetamine near the car. Lodged Document 4 at 8. This evidence would have been admissible even in a separate trial, and would be sufficient to permit a jury to convict Allstead of all three charges. The state court of appeal reasonably concluded that Allstead would not have obtained a more favorable result even if there had been separate trials. Where the evidence presented as a result of a joint trial is "insignificant in the context of the overall case," see Johnson, 297 F.3d at 857, we cannot say Allstead suffered manifest prejudice.
In light of the absence of truly antagonistic defenses, the trial court's careful limiting instruction, and the substantial independent evidence of Allstead's guilt, he is not entitled to habeas relief. The state appellate court's determination that Allstead did not demonstrate that the joint trial resulted in a denial of his right to a fair trial was not contrary to, or an unreasonable application of, federal law.
Allstead claims the trial court prejudicially erred by admitting evidence that Allstead had been convicted on two prior occasions for possession of methamphetamine. Petition at 5. He argues the admission of this evidence pursuant to California Evidence Code section 1101, subsection (b), violated his rights to due process and a fair trial. The trial court granted the prosecution's motion to present evidence of Allstead's 1993 and 1996 convictions, ruling that the evidence was "highly relevant for intent, and that the intent would outweigh the potential prejudice." RT at 24. The Court of Appeal reasoned that, "because the evidence tended to show defendant had knowledge of the possession and sale of methamphetamine and that he intended to possess and sell the methamphetamine found in and around his car, the evidence was properly admitted under section 1101, subsection (b)." Lodged Document 4 at 9. It therefore affirmed the trial court's admission of the prior acts evidence as a matter of California evidence law.
The admissibility of evidence under state law is not subject to attack through federal habeas proceedings, so we do not consider whether the admission was appropriate under California law. However, even if the decision was in error, the fact that prior bad acts evidence may have been improperly admitted under state law is not, standing alone, a sufficient basis for federal habeas relief. See Estelle v. McGuire, 502 U.S. 62 (1991) (rejecting the Ninth Circuit's reliance on the fact that evidence was incorrectly admitted pursuant to California law as a basis for federal habeas corpus relief). A federal court may grant habeas relief when the evidentiary error, if any, rendered the trial fundamentally unfair and resulted in a denial of due process. Id. at 68, 70.
Admission of other acts evidence that a defendant contends is unduly prejudicial rises to the level of a due process violation only when "there are no permissible inferences the jury may draw from the evidence." Boyde v. Brown, 404 F.3d 1159, 1172 (9th Cir. 2005) (quoting Jammal v. Van de Kamp, 926 F.2d 918, 919 (9th Cir. 1991)). Introduction of evidence of prior bad acts for other purposes-for instance, to show intent, knowledge, motive, and modus operandi-is permissible. See, e.g. Boyde, 404 F.3d at 1173 (modus operandi); Leavitt v. Arave, 383 F.3d 809 (9th Cir. 2004) (knowledge); Windham v. Merkle, 163 F.3d 1092 (9th Cir. 1998) (motive); Butcher v. Marquez, 758 F.2d 373 (9th Cir. 1985) (intent).
Here, the jury could draw permissible inferences as to Allstead's state of mind from the evidence of Allstead's prior convictions, and the prosecution sought to introduce it as probative for that very reason. Prior to trial, the prosecutor explained, "It's the sales, possession for sale of methamphetamine, and the indicia of sales that he possesses in both the `93 and `96 case, that is, the baggies . . . paraphernalia in the form of syringes, scales in the one particular case, the amount of methamphetamine. . . . All of those go to show his intent and knowledge in this particular case, and they are similar." RT at 23.
The Court of Appeal noted that the trial court and prosecution both sought to ensure the jury would draw only permissible inferences. The trial court instructed the jury, consistent with CALJIC No. 2.50, that the evidence of Allstead's prior conduct was admitted for the limited purpose of proving knowledge and intent and not to show defendant's propensity to commit criminal acts. Lodged Document 4 at 11; RT at 863. The prosecution-the party that introduced the supposedly prejudicial evidence-reinforced the limiting instruction by properly arguing in summation "that the evidence was admissible only for the limited purpose of showing defendant's knowledge of the methamphetamine and his intent to possess it for sale." Lodged Document 4 at 11.
In his brief before the California Court of Appeal, Allstead argued the evidence was admitted only to prove propensity. Even if we were to assume that the evidence was used only to prove propensity, it is not "clearly established Federal law" that the admission of propensity evidence violates due process. Indeed, the Supreme Court has left open that very question. Estelle v. McGuire, 502 U.S. 62, 75 n. 5 (1991) ("we express no opinion on whether a state law would violate the Due Process Clause if it permitted use of `prior crimes' evidence to show propensity to commit a charged crime"); see Holgerson v. Knowles, 309 F.3d 1200, 1202 (9th Cir. 2002) (habeas relief not warranted unless due process violation clearly established by the Supreme Court). Therefore, even if there were no other permissible inference the jury could draw from the evidence of Allstead's prior crimes, admitting the evidence would not be contrary to, or an unreasonable application of, clearly established Supreme Court law. See Carey v. Musladin, 549 U.S. 70, 76 (2006) ("Given the lack of holdings from this Court regarding the potentially prejudicial effect of spectators' courtroom conduct of the kind involved here, it cannot be said that the state court `unreasonabl[y] appli[ed] clearly established Federal law.'") (citing 28 U.S.C. § 2254(d)(1) (alterations in original)).
Allstead claims he suffered ineffective assistance of counsel because his attorney opened the door to prejudicial evidence. Petition at 6. Prior to trial, the court granted Allstead's motion in limine to exclude reference to petitioner's prior criminal record; his parole status; his prior alleged misbehavior, including sale or use of unlawful drugs; the fact that he and Harrell were the subject of a criminal investigation at the time of their arrest; the fact that police allegedly possessed a photograph of Allstead at the time of his arrest; the fact that police had a description of his car at the time of his arrest; the fact that police allegedly received information about him from an unnamed informant; and the fact the police knew where defendant lived or expected to find him near his residence. Lodged Document 4 at 13.
During pre-trial motions, Allstead's attorney indicated "there certainly is an issue in this case as to whether excessive force was used," which might indicate "the police have some motivation to exaggerate the culpability of the defendants." RT at 171. He said he "intend[ed] to raise that as an issue giving rise to bias on the part of the police in terms of their truthfulness about what they observed and what happened." RT at 172. The judge questioned counsel: "[B]y saying this force is excessive, do you not open up the defendant's prior criminal record, the defendant's prior contact with law enforcement, the defendant's misbehavior, et cetera, et cetera, all of the things that I've now excluded?" RT at 173. Counsel responded, "I do agree some of that may come in" (RT at 174), and later raised the question of excessive force during trial. In response, the court allowed the prosecution to introduce evidence that the officers believed Allstead was armed and that he was an ex-felon.
In order to establish ineffective assistance of counsel, a petitioner must show that counsel's representation fell below an objective standard of reasonableness and that the deficient performance affected the result of the proceeding. Strickland v. Washington, 466 U.S. 668, 686 (1984). There is a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance. Id. at 689. In order to demonstrate prejudice, the defendant must show there is a reasonable probability that but for counsel's unprofessional errors, the result would have been different. Id. at 694.
The California Court of Appeal focused on the prejudice prong of the test, correctly noting that it is unnecessary to consider whether counsel's performance was deficient before considering whether any deficiency was prejudicial, so we do not consider actual deficiency here. See Strickland, 466 U.S. at 697. The court reasoned that the challenged evidence was not prejudicial for two reasons: first, the 1993 and 1996 convictions were properly admitted to show knowledge and intent; and second, that Allstead could not have been prejudiced by evidence the police mistakenly believed he might have been carrying a weapon because the evidence at trial clearly established Allstead was not armed during the incident. Lodged Document 4 at 15.
The state court's decision was a reasonable application of the Strickland standard. Because, as discussed above, evidence of Allstead's prior convictions was properly admitted to show knowledge and intent, and he suffered no prejudice therefrom. Even if his attorney erroneously opened the door to this evidence by presenting the excessive force argument, Allstead could not be prejudiced by the admission of already-admitted evidence. Nor was he prejudiced by evidence that police mistakenly thought he was armed. Allstead complains his attorney opened the door for the prosecutor to discuss whether he was carrying a weapon. However, the prosecutor's questions elicited testimony that Allstead was not, in fact, armed. RT at 281. It is "not reasonably probable that, but for counsel's errors, the result of the proceeding would have been different." See Bonin v. Calderon, 59 F.3d 815, 833 (9th Cir. 1995).
The state court decision rejecting petitioner's claim of ineffective assistance of counsel was not contrary to or an unreasonable application of clearly established federal law, nor was it based on an unreasonable determination of the facts in light of the evidence in the record before this court.
Finally, Allstead claims the trial court erred by imposing an upper term sentence based on facts that were not found by the jury nor proven beyond a reasonable doubt in violation of his Sixth Amendment rights under Blakely v. Washington, 542 U.S. 296 (2004). Petition at 6. At sentencing, the prosecutor argued several factors in aggravation. RT at 960-61. The trial court imposed the upper term of four years on one count based on the aggravating factors, finding no mitigating factors. The court stated it "considered the circumstances in aggravation particularly including the quantity of controlled substance and the defendant's prior performance on parole," citing California Penal Code § 1170.73 and California Rules of Court 4.421(b)(4) and (b)(5). The court did not rely on Allstead's four prior prison terms because it imposed Penal Code § 667.5, subdivision (b) enhancements for each prior prison term. Lodged Document 4 at 17.
After Allstead filed his habeas petition, the Supreme Court decided Cunningham v. California, 549 U.S. 270, 127 S. Ct. 856 (2007). Respondents addressed Cunningham in their response to the petition, and we assume Cunningham superceded Allstead's Blakely argument.
In Cunningham, the Court struck down aspects of the California sentencing scheme under which Allstead was convicted, which provided for lower, middle, or upper terms of punishment, depending on the presence of aggravating factors. 127 S. Ct. at 868. The Court held that upper-term sentences violate the Sixth Amendment if they are imposed on the basis of aggravating facts not found by a jury beyond a reasonable doubt, despite the fact that the upper term is authorized by statute. Id. at 870-71. The Ninth Circuit later held in Butler v. Curry, 538 F.3d 624 (9th Cir. 2008), that Cunningham was clearly dictated by the Supreme Court's prior precedent in Blakely and is therefore retroactive to the date of the Blakely decision in 2004. Allstead's sentence was finalized on June 15, 2005, when the California Supreme Court issued its order denying review. Lodged Document 6. Because this date falls after Blakely was decided, Cunningham applies retroactively on collateral review and provides the governing law for this petition.
Despite Cunningham's applicability to this case, Allstead suffered no violation of his Sixth Amendment right to a jury trial as a result of his upper-term sentence. Although the Apprendi line of cases requires all facts necessary for the sentence to be found by a jury, the Court has consistently maintained one exception: the fact of a prior conviction need not be found by a jury. Apprendi v. New Jersey, 530 U.S. 466, 490 (2000); see also Almendarez-Torres v. United States, 523 U.S. 224, 247 (1998). Following Cunningham, the California Supreme Court held in People v. Black, 161 P.3d 1130 (Cal. 2007) (" Black II"), that "under the DSL[,] the presence of one aggravating circumstance renders it lawful for the trial court to impose an upper term sentence." Id. at 1140. Black II observed that, under Supreme Court precedent, "as long as a single aggravating circumstance . . . has been established in accordance with the requirements of Apprendi and its progeny, any additional fact finding engaged in by the trial court in selecting the appropriate sentence . . . does not violate the defendant's right to jury trial." Id. at 1138.
Here, the trial court considered various factors in aggravation. However, as the Court of Appeal noted, not all of the factors were legally essentially to an upper-term sentence. "[T]he legally essential facts are (1) defendant's status on parole following his 1996 prior conviction, and (2) his unsatisfactory performance on that parole, consisting of his commission of the present offenses." Lodged Document 4 at 17. The Court of Appeal concluded that, "based solely on defendant's prior conviction and parole," the trial court could properly impose the upper term, and therefore Allstead suffered no Blakely violation. Lodged Document 4 at 17.
The state courts' focus on Allstead's " status on parole" raises the question of whether parole status falls within the prior conviction exception. Although the United States Supreme Court has never defined the scope of the prior conviction exception, the Ninth Circuit recently held that a defendant's status on probation does not fall within the exception. Butler, 528 F.3d at 647. The Butler court reasoned that the justification for the prior conviction exception is that proof exists in prior judicial records or documents, which were created with full Sixth Amendment safeguards. Id. at 645. Unlike the fact of a conviction, or the fact that a defendant was initially sentenced to probation, a defendant's status on probation cannot be ascertained from prior conviction records. Id. at 646. The Ninth Circuit therefore concluded "the fact of being on probation at the time of a crime does not come within the `prior conviction' exception and must be pleaded in an indictment and proved to a jury beyond a reasonable doubt. Id.
We need not consider here whether this rationale would also exclude Allstead's status on parole from the prior conviction exception. As the Butler court carefully noted, the "conclusion that probation status at the time of the instant crime does not come within the `prior conviction' exception does not suggest that petitioners will always, or even often, obtain relief when a judge, rather than a jury, has made such a finding." Id. at 647 n. 4. Allstead is entitled to relief only if the sentencing error was not harmless. See Washington v. Recuenco, 548 U.S. 212 (2006); Brecht v. Abramson, 507 U.S. 619 (1993). Apprendi errors are harmless when the reviewing court can ascertain that the trial judge possessed sufficient documents at sentencing to conclude that a jury would have found the relevant fact beyond a reasonable doubt. Butler, 528 F.3d at 647 n. 14 (citing United States v. Salazar-Lopez, 506 F.3d 748, 755 (9th Cir. 2007)).
That standard is plainly met here. At sentencing, the prosecution presented several documents, some of which were admitted into evidence during the trial. The documents discussed at sentencing included Allstead's "rap sheet," indicating his prior convictions, and his probation reports. The prosecution argued for the upper-term sentence because of Allstead's prior unsatisfactory performance on parole, and the fact that he was on parole when he committed the present offense. RT at 963. The prosecution specifically directed the court's attention to "page fourteen of the probation report." RT at 965. Based on the sentencing colloquy, it appears the trial judge had sufficient unchallenged documentation before him to determine Allstead's parole status and could therefore properly impose the upper-term sentence. Even if Allstead suffered some Apprendi error, that error was harmless. Accordingly, the California superior court's imposition of an upper-term sentence was not contrary to, or an unreasonable application of, federal law at the time of Allstead's conviction.
ORDERED that Petitioner's petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 is DENIED. The case is dismissed with prejudice.
The Clerk is directed to send uncertified copies of this Order to all counsel of record and to any party appearing pro se at said party's last known address.


text: 502 purposes."40 Similarly, their reports on flood-control exam- inations and surveys must include such data as it may be prao- ticable to secure in regard to "the possible economical develop- ment and utilization of water power."41 In 1927, Congress authorized the Army Engineers to conduct surveys "in accord- ance with House Document Numbered 308, Sixty-ninth Con- gress, first session."42 This document recommends! studies sufficient to determine, among other things, the "present and prospective power markets available."4a In the case of proposed irrigation projects, the Reclamation Project Act of 1939 requires submission of a report and find- ings by the Secretary of the Interior on, among other things, "the part of the estimated cost which can properly be allo- cated to power and probably be returned to the United States in net power revenues."44 Similarly, the use of power-market data is seemingly contemplated by that Act's authorization for the Secretary to sell power or lease power privileges at rates fixed in accordance with the standard prescribed in the Act.45 The Secretary of the Interior is also charged with respon- sibility for marketing surplus power generated at reservoir projects under Army control in such a manner as "to en- courage the most widespread use thereof at the lowest possible rates to consumers consistent with sound business principles."46 He has a similar responsibility under the Bonneville Project and Fort Peck Project Acts.47 While these authorizations in- clude no express provision for studies of power needs and resources, they have been administratively construed to em- brace such studies.48 Also, the Rural Electrification Administrator is authorized to make "studies, investigations, and reports concerning the 40 Act of March 4, 1913, § 3(b), 37 Stat. 801, 826, as amended, 33 U. S. C. 545 (b). See also n. 41, pp. 396-397. 41 Act of March 1,1917, § 3, 39 Stat. 948, 950, 33 U. S 0. 701. 42 Act of January 21,1927, § 1, 44 Stat. 1010,1015. 48 H. Doc. No. 308, 69th Cong., 1st sess., p. 2 (1926). 44 Act of August 4, 1939, § 9(a), 53 Stat. 1187, 1193, 43 TJ. S. O. 485h*(a). 48 § 9(c), 53 Stat. 1194, 43 U. S. C. 485h(c). See, e. g., Power Market Sur- vey-Eastern Colorado, Bureau of Reclamation, Region 7 (January 1949). 48 Act of December 22, 1944, § 5, 58 Stat. 887, 890, 16 U. S. C. 825s. 47 See supra, pp. 302-306. 48 See supra, n. 210, p. 294.

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For the Appellants: Stephen V. Finnen, Esq.
For the Appellee: Fredrick L. Ramp, Esq.
Actions are prosecuted in the name of the real party in interest. An assignment passes title to the assignee so that he is the owner of any claim arising from the chose and should be treated as the real party in interest. When all rights to a claim have been assigned, courts generally have held that the assignor no longer may sue.Tom v. Pohnpei Utilities Corp., 9 FSM Intrm. 82, 86 n.1 (App. 1999).
the claims sought to be added are barred by the relevant statute of limitations. Tom v. Pohnpei Utilities Corp., 9 FSM Intrm. 82, 87 (App. 1999).
An amended pleading in a personal injury suit filed after the two year statute of limitations ran out would be futile unless it can be related back to an earlier date.Tom v. Pohnpei Utilities Corp., 9 FSM Intrm. 82, 87 (App. 1999).
A mistake of identity as used in Rule 15(c) applies to misnomers, incorrect names, and mistakes concerning which official body is the proper defendant, but a mistake of legal judgment concerning who is responsible for the tort, where the plaintiff was fully aware of the identities of the defendant and potential defendants, is not the type of mistake of identity which can be corrected under Rule 15(c), with the amended pleading to relate back. Tom v. Pohnpei Utilities Corp., 9 FSM Intrm. 82, 87 (App. 1999).
When an FSM Rule of Civil Procedure is nearly identical to a U.S. Federal Rule of Civil Procedure, the FSM Supreme Court may look to the U.S. federal courts for guidance in interpreting the rule. Tom v. Pohnpei Utilities Corp., 9 FSM Intrm. 82, 87 n.2 (App. 1999).
When the plaintiffs were fully aware of the identity of the third-party defendant at least since the third-party complaint was filed, but do not seek to amend their complaint to proceed against that party until after the statute of limitations has run, they made no mistake of identity correctable under Rule 15(c) and the motion to amend is properly denied because the amendment is futile. Tom v. Pohnpei Utilities Corp., 9 FSM Intrm. 82, 87 (App. 1999).
Both intervention of right and permissive intervention must be upon timely application. Tom v. Pohnpei Utilities Corp., 9 FSM Intrm. 82, 88 (App. 1999).
Timeliness must be determined from all the circumstances of the case. There are four factors to consider when determining whether a motion to intervene is timely: 1) how long the applicant knew or should have known of his interest before making the motion; 2) the prejudice to existing parties resulting from any delay; 3) the prejudice to the applicant if the motion is denied; and 4) any unusual circumstances militating for or against a finding of timeliness. Tom v. Pohnpei Utilities Corp., 9 FSM Intrm. 82, 88 (App. 1999).
An application to intervene is untimely when the would-be intervenors knew or should have known of their interest against the potential defendant, the prejudice to the potential defendant was that it could be liable for a large sum for a claim for which it would not otherwise be liable because the statute of limitations had run, the prejudice to the would-be intervenors was that they would receive no more compensation than the $105,311.27 they had already received in a settlement, and the unusual circumstances militating against a finding of timeliness was that the would-be intervenors were the original plaintiffs in the lawsuit and had filed their case and had notice of the potential defendant well before the statute of limitations had run. Tom v. Pohnpei Utilities Corp., 9 FSM Intrm. 82, 88 (App. 1999).
By statute, a tort-feasor who enters into a settlement agreement is not entitled to recover contribution from another tort-feasor whose liability for the injury or wrongful death is not extinguished by the settlement. Tom v. Pohnpei Utilities Corp., 9 FSM Intrm. 82, 88 (App. 1999).
By statute, a tort-feasor, against whom there is no judgment, and who has agreed while the action was pending against him to discharge the common liability, may sue for contribution within one year of the agreement if he has paid the liability. Tom v. Pohnpei Utilities Corp., 9 FSM Intrm. 82, 88 (App. 1999).
6 F.S.M.C. 1202(4) bars a contribution claim when a settlement agreement does not extinguish another tort-feasor's liability because that liability had already been extinguished by the relevant statute of limitations. Tom v. Pohnpei Utilities Corp., 9 FSM Intrm. 82, 89 (App. 1999).
A defendant is barred from seeking contribution from a joint-tortfeasor when its settlement agreement with the plaintiffs recites that the release does not affect either the plaintiffs' or the defendant's claims against the joint tort-feasor. Tom v. Pohnpei Utilities Corp., 9 FSM Intrm. 82, 89 (App. 1999).
This appeal arises from the trial court's denial of the plaintiffs' motion to file a second amended complaint and from its grant of summary judgment for the third-party defendant against the third-party plaintiff's claim for contribution and indemnity. We affirm the trial court's denial of the motion and its grant of summary judgment. Our reasoning follows.
On January 27, 1995, Deltring Tom was painting the front exterior of Joy Hotel with a long-handled aluminum roller brush while standing on the hotel roof. The brush handle came in contact with some high voltage wires a little over seven feet away from the front of the hotel. The resulting shock severely injured Tom, causing severe burns requiring skin grafts over much of his torso and the loss of his right arm and two fingers on his left hand.
On July 2, 1996, Deltring Tom and his wife Cathy filed suit against Yukio and Rituko Suzuki in the Pohnpei Supreme Court seeking compensation for Deltring Tom's injuries and his wife's loss of consortium. The case was timely removed to the FSM Supreme Court. The Suzukis' answer, filed September 4, 1996, included a third-party complaint for contribution and indemnity from Pohnpei Utilities Corporation ("PUC") and for costs to relocate PUC's high voltage wires. On January 13, 1997, the Toms filed a First Amended Complaint, substituting Joy Enterprises, Inc. ("Joy") as defendant in place of the Suzukis because it was Tom's actual employer.
On September 25, 1997, the Toms and Joy executed a Settlement Agreement and Release in which the Toms agreed to release and discharge Joy from liability. On September 30, 1997, the Toms and Joy filed a Stipulation and Order for Dismissal with Prejudice for all claims pending by each of the two parties against the other and a Substitution of Counsel, substituting the Toms' counsel for Joy's counsel. On October 3, 1997, a trial court order noted that the stipulation of dismissal had not been served on PUC and directed that it be. On October 6, 1997, PUC filed a concurrence with and stipulation to the dismissal. PUC requested the clerk to enter the dismissal and noted that the dismissal would leave open Joy's claims against PUC. On October 14, 1997, the Toms filed Plaintiff's[sic] Motion for a Second Amended Complaint, which sought to add negligence claims directly against PUC. On October 21, 1997, the trial judge signed and entered the Toms' and Joy's stipulated order of dismissal.
PUC then filed its opposition to the Toms' motion to amend. It asserted that the Toms were no longer parties since their claims against Joy had been dismissed and that the two-year statute of limitations for Tom's personal injury claims had run. A copy of the Settlement Agreement between the Toms and Joy was attached to PUC's opposition as Exhibit D. Settlement Agreement Part 1.b provided for Joy's assignment to the Toms of Joy's "choses in action" in its third party complaint against PUC. Part 1.e recited that the release did not affect the Toms' or Joy's claims against PUC. The Toms' reply contended that the statute of limitations did not apply because under Rule 15(c) the amendment would relate back to the date the Toms originally filed the case, that PUC had not complied with Rule 41(a)(1) so there had been no dismissal until the October 21st court order, and that even if there had been the Toms had the right to intervene under Rule 24.
On December 17, 1997, a trial court order, noting that the Toms could have filed a claim against PUC earlier, determined that because the Toms had dismissed their claims against Joy they were no longer parties to the litigation, and denied their motion to amend on the ground that the rules do not permit a non-party to amend a complaint. Order at 7-9 (Dec. 17, 1997). The trial court also concluded that the relation-back doctrine did not assist the Toms because there was no mistake of identity and that this was not a proper case for a Rule 24 intervention. Id. at 10.
On May 1, 1998, PUC moved for summary judgment on the third-party claims. The trial court granted the motion. It concluded that the applicable FSM statutes barred the contribution claim because the Settlement Agreement, by its terms did not intend to extinguish PUC's liability, although it might have had that unintended effect. Joy Enterprises, Inc. v. Pohnpei Utilities Corp., 8 FSM Intrm. 306, 310-11 & n.4 (Pon. 1998). The trial court denied the indemnity claim because there was no contractual relationship between Joy and PUC that created a right to indemnity and the court was not prepared to create a common law right to indemnity. Id. at 311. The trial court dismissed the action with prejudice. The Toms and Joy, who had shared the same counsel since their settlement, then filed a Joint Notice of Appeal.
Joy to seek contribution from PUC under the Contribution Among Joint-Tortfeasors Act.
The appellants request the following relief: reversal as a matter of law of the trial court decision (Dec. 17, 1997) that the Toms were not parties when the motion to amend was filed and that the matter be remanded for the trial court to rule on the motion, or, in the alternative, that we grant the motion to file a second amended complaint; or, if the first request is not granted, reversal of the trial court decision (Dec. 17, 1997) that the Toms had no right to intervene and that their motion to intervene be granted; or, if neither of the first two requests is granted, then reversal of the June 30, 1998 summary judgment and that a decision be rendered as a matter of law that 6 F.S.M.C. 1202(4) and 6 F.S.M.C. 1204(4) do not bar Joy's contribution claim against PUC.
The appellants do not appeal the trial court's ruling that Joy is not entitled to indemnification from PUC. They also appear to have abandoned Joy's claim for compensation to relocate the power lines, probably because discovery showed that PUC has moved the lines to a safer distance.
The Toms contend that when they filed their motion to amend they were still parties because the requirements of Rule 41(a)(1) were not satisfied. That rule provides in pertinent part that "an action may be dismissed by the plaintiff without order of court . . . (ii) by filing a stipulation of dismissal signed by all parties who have appeared in the action." FSM Civ. R. 41(a)(1). The Toms note that there never was, and they did not file, a stipulated dismissal signed by all parties to the action. The stipulation was signed only by the Toms and Joy. PUC never signed it, but instead later filed a separately signed "Concurrence," with a request that the court enter the dismissal. The Toms assert that therefore a court order was necessary to dismiss their claims pursuant to Rule 41(a)(2), which was not done until October 21, 1997, and that they were therefore still parties when they filed the October 14, 1997 motion to amend. For support, they rely on Labra v. Makaya, 7 FSM Intrm. 75 (Pon. 1995) where the trial court refused to permit a voluntary dismissal until all defendants had agreed. The Toms also note that Joy's assignment of its claims to them means they are still the real parties in interest in the action.
PUC contends that the Toms were dismissed as parties by operation of Rule 41(a)(1), either when they filed the dismissal in September or when PUC filed its concurrence on October 6, 1997. Therefore, according to PUC, the Toms were not parties when they later filed their motion to amend.
mistake of identity was made." Id. at 10.
Although a court should exercise its discretion liberally to allow amended pleadings, a motion to amend a complaint may be denied if it is futile. Mitsui Foods, Inc. v. United States, 867 F.2d 1401, 1403-04 (Fed. Cir. 1989). One reason a motion to amend a complaint would be futile is if the claims sought to be added are barred by the relevant statute of limitations. Northbrook Nat'l Ins. Co. v. J & R Vending Corp., 167 F.R.D. 643, 647 (E.D.N.Y. 1996).
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. An amendment changing the party against whom a claim is asserted relates back if the foregoing provision is satisfied and, within the period provided by law for commencing the action against the party to be brought in by amendment, that party (1) has received such notice of the institution of the action that the party will not be prejudiced in maintaining his defense on the merits, and (2) knew or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against the party.
FSM Civ. R. 15(c). A mistake of identity as used in Rule 15(c) applies to misnomers, incorrect names, and mistakes concerning which official body is the proper defendant, but a mistake of legal judgment concerning who is responsible for the tort, where the plaintiff was fully aware of the identities of the defendant and potential defendants, is not the type of mistake of identity which can be corrected under Rule 15(c), with the amended pleading to relate back. Rendall-Speranza v. Nassim, 107 F.3d 913, 917-19 (D.C. Cir. 1997) (interpreting a similar U.S. Rule 15(c)2).
The Toms sought to amend their complaint to change the party against whom the negligence claim was made. They were fully aware of the identity of PUC at least since the third-party complaint was filed. They made no mistake of identity correctable under Rule 15(c). Thus, even if the trial court's conclusion that the Toms were not parties is an error of law, which we do not decide, the trial court did not abuse its discretion in denying the motion to amend because it correctly ruled that the amended pleading could not be related back. The amendment was thus futile. We therefore affirm the trial court's denial of the motion to amend on this ground.
Toms contend that they have an interest ) seeking additional compensation from another liable party ) that is not adequately represented by Joy. PUC contends that the Toms do not have a right to intervene because their request was untimely and because the Toms failed to follow the procedure outlined in Rule 24(c) for a motion to intervene.
Both intervention of right, FSM Civ. R. 24(a), and permissive intervention, FSM Civ. R. 24(b), must be "[u]pon timely application." Assuming, which we do not decide, that the Toms were not parties, it cannot be said that the Toms' application was timely when it came after the statute of limitations had expired for the claims they sought to pursue, and was in a lawsuit which they, the would-be intervenors, had originally initiated over a year earlier.
Timeliness must be determined from all the circumstances of the case. There are four factors to consider when determining whether a motion to intervene is timely: 1) how long the applicant knew or should have known of his interest before making the motion; 2) the prejudice to existing parties resulting from any delay; 3) the prejudice to the applicant if the motion is denied; and 4) any unusual circumstances militating for or against a finding of timeliness. United States v. Pitney Bowes, Inc., 25 F.3d 66, 70 (2d Cir. 1994); United States v. New York, 820 F.2d 554, 557 (2d Cir. 1987); Deveraux v. Geary, 765 F.2d 268, 270 (1st Cir. 1985). In the present case, the Toms knew or should have known of their interest against PUC at least since September 4, 1996, when the third-party complaint was filed. The prejudice to PUC is that it could be liable for a large sum for a claim for which it would not otherwise be liable because the statute of limitations has run. The prejudice to the Toms is that they would receive no more compensation than the $105,311.27 they received in the settlement agreement with Joy. The unusual circumstances militating against a finding of timeliness is that the Toms were the original plaintiffs in this lawsuit and filed their case and had notice of PUC well before the statute of limitations had run. No unusual circumstances militate in favor of timeliness. Considering all the circumstances, the application was untimely.
If the Toms were still parties, then intervention was improper because they were already parties. Either way, the trial court did not abuse its discretion in denying the Toms' application to intervene. It was not a suitable case for intervention. Because we affirm the trial court on the ground it gave, we do not reach PUC's claim that the issue was not properly before the trial court.
Finally, Joy and the Toms concede that if the Toms prevail on either of the first two issues raised on appeal then Joy's contribution claim would be barred by 6 F.S.M.C. 1202(4) and 6 F.S.M.C. 1204(4) because then the common liability of Joy and PUC would not have been extinguished. But since the Toms did not prevail, they, as real parties in interest, and Joy contend that the trial court's summary judgment on Joy's contribution claim should then be reversed as an error of law.
If there is no judgment for the injury or wrongful death against the tort-feasor seeking contribution, his right of contribution is barred unless he has either . . . or (b) agreed while the action was pending against him to discharge the common liability and has within one year after the agreement paid the liability and commenced the action for contribution.
was no judgment for the injury. Each of these statutes bars Joy's contribution claim. Section 1202(4) bars the third-party claim because the settlement agreement between Joy and the Toms did not extinguish PUC's liability to the Toms. That liability had already been extinguished by the relevant statute of limitations. Section 1204(4)(b) bars the third-party claim because Joy did not agree to discharge Joy's and PUC's common liability. Part 1.e of the Settlement Agreement recited that the release did not affect either the Toms' or Joy's claims against PUC. The Settlement Agreement thus could not discharge Joy's and PUC's common liability, even if it could be said that a common liability still existed after the statute of limitations had expired on PUC's potential liability to the Toms. The trial court's summary judgment is therefore affirmed.
Accordingly, the trial court's denial of the Toms' motion to amend their complaint is affirmed on the ground that the amendment was futile because its claims were barred by the relevant statute of limitations and could not be related back to an earlier date under Rule 15(c). The trial court's denial of the Toms' application to intervene and its grant of summary judgment for PUC are also affirmed.
1. "Every action shall be prosecuted in the name of the real party in interest." FSM Civ. R. 17(a). "[A]n assignment passes title to the assignee so that he is the owner of any claim arising from the chose and should be treated as the real party in interest." 6A Charles Alan Wright et al., Federal Practice and Procedure § 1545, at 346 (1990). "When all rights to a claim have been assigned, courts generally have held that the assignor no longer may sue." Id. at 351.
2. When an FSM Rule of Civil Procedure is nearly identical to a U.S. Federal Rule of Civil Procedure, the FSM Supreme Court may look to the U.S. federal courts for guidance in interpreting the rule. Senda v. Mid-Pacific Constr. Co., 6 FSM Intrm. 440, 444 (App. 1994).


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Niviventer is a genus of white-bellied rats that are among the most common rodents in the Indo-Sundaic region. The taxonomy of the genus has undergone extensive revisions and remains controversial. The current phylogeny is unresolved and was developed primarily on the basis of mitochondrial genes. Identification is extremely difficult, and a large number of GenBank sequences seem to be problematic. We extensively sampled specimens of Niviventer in China and neighboring northern Vietnam, including topotypes of the most reported species (n = 6), subspecies (n = 8), and synonyms (n = 4). We estimated phylogenetic relationships on the basis of one mitochondrial and three nuclear genes, using concatenation and coalescent-based approaches. We also employed molecular species delimitation approaches to test the existence of cryptic and putative new species.
Our phylogeny was finely resolved, especially for the N. confucianus-like species. Our data provided the first support for N. brahma and N. eha as sister species, an assignment that is congruent with their morphological similarities. Species delimitation analyses provided new insight into species diversity and systematics. Three geographic populations of N. confucianus and one of N. fulvescens were supported as genetically distinct in our species delimitation analyses, while three recognized species (N. coninga, N. huang, and N. lotipes) were not strongly supported as distinct.
Our results suggested that several genetically distinct species may be contained within the species currently known as N. confucianus and N. fulvescens. In addition, the results of Bayesian Phylogenetics and Phylogeography (BPP) for N. coninga, N. huang, and N. lotipes indicated that either inter-specific gene flow had occurred or imperfect taxonomy was present. Morphological examinations and morphometric analyses are warranted to examine the molecular results.
Taxonomy and systematics are crucial for understanding biological diversity and the conservation of species. Nonetheless, a complete understanding of species diversity remains a distant goal for most groups of organisms. A recent review of newly discovered mammal species showed that saturation of species discovery in Mammalia has not been reached. The newly added species include not only new described species, but also revisionary new species, which are synonyms or subspecies that have been recognized as valid species . The latest version of Mammal Species of the World (2005) recognized 5,339 valid species, as well as 6,351 subspecies and 15,881 species-level synonyms . A large proportion of synonyms and subspecies are assigned those ranks because of the lack of specimens, comprehensive analyses, and critical evaluation. This is especially the case for taxa that are widely distributed and morphologically unremarkable, such as the white-bellied rats of the genus Niviventer. These murine rodents are small to medium-sized and are mainly distributed in China, southern Himalaya, and Southeast Asia in various habitats over a wide range of elevations [3, 4]. While most species of Niviventer have very limited distributions, a few species, such as N. cremoriventer, N. confucianus, and N. fulvescens, are widely spread across large geographic areas and various landscapes [5–7].
The taxonomy of Niviventer has a long and complicated history. Representatives of Niviventer were originally included in the genus Mus (1836–1911), after which they were placed in Epimys (1911–1916), and Rattus (1916–1981; Rattus = Epimys, Hollister ), successively. The genus was established by Musser , who included 15 species and divided the genus into the N. andersoni-division and N. niviventer-division. According to the taxonomy presented by Musser and Carleton in 2005 , 17 taxa had full species status, while another 65 were recognized as subspecies or synonyms. The widespread N. cremoriventer, N. confucianus, and N. fulvescens had 10, 14, and 26 subspecies and synonyms, respectively. Recent studies integrating karyotypic information, DNA sequences, and morphological characters recognized N. lotipes (a synonym of N. tenaster) , N. huang, and N. bukit (synonyms of N. fulvescens) as full species  but placed N. langbianis into Chiromyscus . Molecular phylogenetic studies further found that the widely distributed species were paraphyletic or even polyphyletic (e.g., N. andersoni, N. confucianus, N. excelsior, and N. fulvescens) . Despite the possibility of misidentification, the number of putative species always exceeded that of recognized species [13, 14], implying that species diversity was underestimated. Thus, it was reasonable to re-evaluate the large body of remaining subspecies/synonyms within this genus.
The complex distribution pattern, large number of subspecies/synonyms, and morphological similarities make taxonomic and systematic revision for the genus Niviventer extremely difficult. Many species are morphologically very similar to one another . For example, geometric morphometric analyses in a previous study showed that two distinctive genetic lineages largely overlapped (i.e., N. confucianus and N. fulvescens; Fig. 6 in Lu et al. ). Examination of type specimens is always crucial for taxonomic revision and essential for re-evaluating the synonyms. However, the type series for most species distributed in Asia are deposited in natural history museums in Europe and the United States. Thus, comprehensive genetic analyses using topotypes may uncover cryptic species diversity and help to determine key taxa that need to be diagnosed before the type series is examined. In addition to the existing taxonomic problems, the phylogeny of Niviventer remained largely obscure. Although several major clades and species groups have been recognized, the relationships among them were unresolved, and the phylogenetic positions of N. coninga and N. culturatus were contradictory [11, 15]. More than 540 Niviventer specimens have been sequenced, but most of the previous studies were conducted using only mitochondrial cytochrome b (CYT B) and cytochrome c oxidase (COI) genes [11, 13, 15, 16]. In another previous study using both mitochondrial (CYT B, COI, and D-loop) and nuclear (IRBP) loci, the gene trees were conflicting, suggesting that inclusion of multiple nuclear genes is warranted .
According to the taxonomy of Musser and Carleton  and recent studies [10–12], there are 10 recognized Niviventer species distributed in China, accounting for 55% of Niviventer species, including 5 endemic to China (N. andersoni, N. coninga, N. culturatus, N. excelsior, and N. lotipes) and 5 both inside and outside China (N. brahma, N. eha, N. confucianus, N. fulvescens, and N. huang). Nine Niviventer species (N. cremoriventer, N. cameroni, N. rapit, N. fraternus, N. lepturus, N. hinpoon, N. tenaster, N. bukit, and N. niviventer) are distributed in Southeast Asia outside China. Another 24 taxa are recognized as synonyms or subspecies of N. andersoni (n = 3), N. confucianus (n = 14), N. eha (n = 1), N. excelsior (n = 1), N. fulvescens (n = 1), and N. huang (n = 4). Moreover, according to Lu et al. , undescribed species may exist in the mountains of southwestern China, an area characterized by extremely complex topography .
In the present study, we extensively sampled white-bellied rats throughout China and neighboring northern Vietnam, capturing topotypes of 18 species, subspecies, and synonyms. We sequenced four unlinked loci, reconstructed phylogenetic relationships, and delimited species boundaries. The goals were i) to clarify the status of species, subspecies, and synonyms, and ii) to uncover underestimated species diversity.
A total of 157 Niviventer individuals representing 10 species were collected from China and neighboring northern Vietnam (Fig. 1, Table 1, Additional file 1: Table S1). We obtained 4,278 bp of sequences from 147 specimens, including 1,140 bp of mitochondrial DNA (mtDNA; CYT B [1,140 bp]) and 3,138 bp of nuclear genes (GHR [768 bp], IRBP [1,149 bp], and RAG1 [1,221 bp]). The other ten individuals each failed to amplify one of the three nuclear genes. The new sequences have been deposited in GenBank under the accession numbers KY068361 to KY069019 (Additional file 1: Table S1). The appearance of premature stop codons or frame-shift mutations was not observed in coding regions. In addition, 537 sequences (517 CYT B, 8 GHR, and 12 IRBP) representing 517 individuals of 17 Niviventer spp. (including N. andersoni, N. brahma, N. confucianus, N. coninga, N. culturatus, N. eha, N. excelsior, N. fulvescens, N. huang, N. bukit, N. hinpoon, N. niviventer, N. cremoriventer, N. tenaster, N. rapit, Niviventer sp. 1 and Niviventer sp. 2 ) were downloaded from GenBank (Additional file 2: Table S2). Sequences of Leopoldamys edwardsi, L. neilli, Rattus andamanensis, R. norvegicus, Chiromyscus chiropus, C. thomasi, C. langbianis, and Mus musculus were chosen as outgroups (Additional file 2: Table S2).
The best-fit partitioning schemes and substitution models were determined by Partitionfinder V1.0.0  under Bayesian Information Criterion (BIC) (Additional file 3: Table S3). The maximum likelihood (ML) tree calculated from CYT B sequences shows the 674 Niviventer individuals (Table 2) clustered into four major clades (i.e., clades A–D; Fig. 2), among which relationships were only weakly supported (bootstrap value, BS ≤ 47). Clade A was composed of N. fulvescens-like species (including N. bukit and N. huang) and three Southeast Asian species (N. rapit, N. hinpoon, and N. cremoriventer). Clade B was composed of two species from southwestern China and South Asia (N. eha and N. brahma). Clade C included N. andersoni and N. excelsior, representing the N. andersoni-division. All individuals in clade D were N. confucianus-like species, including subspecies and synonyms of N. confucianus, species previously included in N. confucianus (i.e., N. coninga, N. culturatus, and N. lotipes), and N. tenaster, which was morphologically similar to N. confucianus. In addition, individuals identified as N. bukit, N. eha, N. fulvescens, and N. niviventer in GenBank were recovered within two major clades each. The Kimura-2-parameter (K2P) distances calculated in MEGA version 7  between candidate species were 0.024 to 0.188 (Additional file 4: Table S4).
The species delimitation approach Automatic Barcode Gap Discover (ABGD) can partition sequences into groups or putative species based on gaps between intra- and interspecific diversity of barcoded genes . In this study, five ABGD analyses with different relative gap width values (X = 0.5, 1, 1.5, 2, and 2.5) were performed on 674 CYT B sequences, and two gaps (distance = 0.056 and 0.121) were observed. Nevertheless, all analyses consistently supported a 30-group (i.e., candidate species) scenario only when intraspecific divergence (p) = 0.0121 (Table 3; Fig. 2). In this scenario, 589 Chinese sequences were included in 22 groups (group 5, 8–19, 21–24, and 26–30; Additional file 1: Table S1 and Additional file 2: Table S2), and 157 sequences in the current study were included in 18 groups (excluding group 11 labeled N. eha eha, and including XZ-YD49 and XZ-YD50 from ; group 15 labeled N. andersoni, 04047 from ; group 16 labeled N. andersoni, 002 and 003 from ; and group 28 labeled N. eha, GLGS103 and GLGS104 from ; Additional file 1: Table S1). Two candidate species (groups 14 and 27) did not appear as monophyletic groups in our CYT B gene tree. Specimens identified as N. andersoni, N. bukit, N. confucianus, N. cremoriventer, N. eha, N. excelsior, N. fulvescens, N. huang, and N. niviventer in GenBank were each found in at least two groups.
The phylogeny constructed from Bayesian and ML analyses of the mitochondrial-nuclear concatenated data (Table 2) resulted in very similar topologies, and only the MrBayes tree is shown (Fig. 3). Chiromyscus langbianis and C. chiropus were supported as sister species (posterior probabilities [PP] = 1.0, BS = 94), forming the sister clade to Niviventer (PP = 0.75, BS = 36; Fig. 3). The four mitochondrial clades of Niviventer were also recovered. Compared to the CYT B gene tree, interspecific relationships were overall highly supported in clades A, B, and C, but remained unresolved in clade D where only posterior probabilities are noted.
The phylogeny using 147 Niviventer sequences plus the outgroup (Fig. 4) was constructed according to the mtDNA and concatenated data tree with better support for the relationships within the genus. In particular, the relationships among all clades and within clade D were better resolved in this phylogeny (Fig. 4).
The species tree simulated in *BEAST showed similar topologies with the BEAST trees (Fig. 5), which assigned 147 individuals from the full data set (Table 2) into 18 groups according to the ABGD results. However, the sister-relationship of groups 5 and 9 and the interspecific relationships in clade D were not robustly supported (PP = 0.35–0.73). Furthermore, group 26 was strongly supported as a sister group to the other N. confucianus groups, excluding N. culturatus (PP = 1). A sister relationship between groups 24 and 27 was strongly supported (PP = 1), although their position was not stable (PP = 0.72).
The BPP analyses based on the full data set provided similar results when different algorithms, priors, and starting trees were used, and high effective sample sizes (ESSs) (≥200) were observed for all parameters. We adopted a conservative criterion, considering PP ≥ 0.95 as strong support for a putative species (Table 4; Additional file 5: Table S5). When both mitochondrial and nuclear genes were used, 15 putative species were recognized (Fig. 5; Table 4; Additional file 5: Table S5); the nuclear genes alone supported an 11-species scenario (Fig. 5; Table 4; Additional file 5: Table S5). All BPP analyses consistently supported group 5 (from southern China and Southeast Asia, recognized as N. fulvescens, Additional file 6: Table S6) and group 9 (identified as N. huang) as the same species. Group 8 was supported as a distinct putative species (putative sp. 3). Animals in this group were from Tibet, Yunnan, China, and northern Vietnam, and were morphologically similar to N. fulvescens, but did not have distinctively bicolored tails  (Additional file 7: Table S7).
When nuclear genes alone were used, BPP supported N. coninga (group 21), N. lotipes (group 23) and several populations of N. confucianus as one species (Fig. 5; Table 4; Additional file 5: Table S5). All analyses supported group 24 from western Yunnan and southeastern Tibet (identified as N. confucianus mentosus); group 26 from Gongbu, Tibet (identified as N. confucianus; putative sp. 4); and group 27 from southern China and northern Vietnam (identified as N. confucianus; putative sp. 5) as three putative species (Fig. 5; Table 4; Additional file 5: Table S5).
According to the famous Chinese teacher Confucius, “If names be not correct, language is not in accordance with the truth of things. If language be not in accordance with the truth of things, affairs cannot be carried on to success” . The species N. confucianus was named after Confucius , and his quote regarding names is indeed relevant to the taxonomy of the genus Niviventer. Species diversity within this genus has been underestimated [13, 14], and our understanding of its taxonomy was incomplete . These two issues have prevented a full understanding of the systematics and evolution of the genus. Multi-locus sequencing for topotype, conducted in this study, indicates the need for several taxonomic and systematic revisions.
Based on the barcoding gap found from the pairwise distances of CYT B sequences, the single gene species delimitation method, ABGD, supported the existence of 22 groups/putative species in China (represented by 589 sequences from China), in agreement with previous reports by He and Jiang  and Lu et al. . Although far fewer samples (n = 147) were available for multilocus species delimitation, BPP analyses still recognized 15 (using nuclear plus mitochondrial genes) or 11 (using three nuclear genes alone) putative species.
BPP molecular species delimitation approaches have been developed and widely used in mammals [24, 25], amphibians [26, 27], and reptiles [28, 29]. It should be noted that the biological species concept associated with BPP may not be true in practice , and that simulations showed that BPP is robust in the case of incomplete lineage sorting but sensitive to hybridization. Strongly supported putative species could be either valid species or long-term isolated conspecific populations. On the other hand, when named species were not strongly supported (PP < 0.95) as putative species by BPP, the results either suggested genetic homogenization (i.e., conspecific relationships) or gene flow between valid species. In both cases, the taxonomic status must still be evaluated carefully in a taxonomic context and must not violate the International Code of Zoological Nomenclature . The BPP analysis that used nuclear genes alone did not strongly support N. huang, N. lotipes, or N. coninga as putative species. On the other hand, four putative new species (N. confucianus mentosus and Niviventer sp. 3–5) need further attention. Comprehensive morphological and morphometric examinations are warranted to test species status for all these taxa.
Species in the genus Niviventer are morphologically very similar. The current taxonomy roughly relies on the size of skull, the length of ear and tail, and the color of skin and feet . Morphological identification is not only time-consuming but also challenging. All but one of the topotypes of Niviventer sequenced in the current study were presented for the first time. We carefully assigned each individual to recognized species on the basis of morphology (Suppl. File 2) and the molecular results. These voucher specimens and sequences are valuable for barcoding-based species identification and taxonomic revision. As shown in our CYT B gene tree, GenBank sequences under the same species names were found in different groups or major clades (Fig. 1), indicating misidentification.
The analyses of topotype sequences of named synonyms and subspecies revealed multiple putative species within the currently recognized species of N. confucianus, N. fulvescens, N. andersoni, and N. eha. Within N. confucianus, the subspecies N. confucianus mentosus should be examined more closely, as it was supported as a distinct group/putative species in all analyses. This subspecies was named and described as a species by Thomas  on the basis of the holotype from Hkampti, Myanmar, after which it was assigned as a subspecies of N. niviventer  or a synonym of N. confucianus . Animals from Chayu (Tibet Autonomous Region), and Nujiang (Yunnan Province) were assigned to N. c. mentosus on the basis of their longer hind feet (≥30 mm) and white-tipped tail . Niviventer sp. 4 collected from Guangxi and Yunnan were marked by a white tail tip and conspicuous brush, a typical pattern of N. confucianus that distinguishes it from N. c. yaoshanensis, N. niviventer, or N. fulvescens. Niviventer sp. 3 is similar to N. fulvescens in body size and color pattern but could be distinguished from N. fulvescens and N. cremoriventer by its fuzzy bicolor tail.
Our analyses also suggest that diversity in some groups may be overestimated. Niviventer lotipes (group 23), recognized by Li et al.  for its distinct karyotype, was not supported as a putative species by any of our BPP analyses. It was originally described as a subspecies of N. confucianus  on the basis of the holotype from Nada, Hainan, then treated as a subspecies of N. niviventer [33, 36] or a synonym of N. tenaster . We did not included any topotype of N. lotipes (Danzhou, Hainan), but all specimens we included from Hainan, Fujian and Guangxi could be affiliated with the holotype (AMNH M-59303) of N. lotipes based on the sharp bicolor appearance of the tail, and are different from specimens used in Li et al. , showing a sharp bicolor appearance. However, individuals from other localities had a white-tipped tail. Another recognized species, N. coninga (group 21), was not supported by the BPP analyses using nuclear genes. Furthermore, most recognized subspecies of N. confucianus were clustered into two lineages or groups (subspecies N. c. yushuensis, N. c. yajiangensis, and N. c. deqinensis in group 29, and the nominated subspecies N. c. confucianus, N. c. chihliensis, and N. c. naoniuensis in group 30). They were not supported as putative species by BPP analyses. Therefore, the taxonomic status of all these clades must be re-examined.
In this study, we collected extensive samples of Niviventer in China, including most topotypes of species, subspecies, and synonyms. We developed a robust phylogeny on the basis of one mitochondrial and three nuclear genes. Four major clades were recovered by both concatenation and coalescent-based approaches. The sister relationship between N. brahma and N. eha was well supported, and relationships among N. confucianus-like species were mostly well resolved. Our coalescent-based species delimitation analyses indicated that species diversity of Niviventer may be overestimated by single locus in previous studies, and three species should be re-evaluated using morphological or morphometric approaches. However, our analyses also indicated that cryptic or putative new species may exist in the mountains of southwest China, an area characterized by extremely complex topography, climate conditions, and geographic history.
We collected 157 individuals of Niviventer, as well as five Chiromyscus langbianis (previously included in Niviventer), from China and neighboring northern Vietnam (Additional file 1: Table S1). These samples were collected at 67 locations (Fig. 1), including the type localities of 6 species, 8 subspecies, and 4 synonyms (Table 1). Voucher specimens from mainland China were deposited in the Kunming Institute of Zoology, Chinese Academy of Sciences, and Sichuan Academy of Forestry, China, and voucher specimens from Taiwan were deposited in Tunghai University. Specimens were carefully identified on the basis of external and skull characters following the original descriptions (Additional file 6: Table S6, [3, 5, 6]) and in consideration of the results of molecular phylogenetic analyses (see Results section). We followed the taxonomy of Musser and Carleton  but recognized N. huang, N. bukit, and N. lotipes as valid species [10, 11], and treated N. langbianis as a member of Chiromyscus following Balakirev et al. . After completing our mitochondrial phylogeny, we carefully examined and described the morphological characters of each clade (Additional file 7: Table S7).
Total genomic DNA was extracted using the sodium dodecyl sulfate (SDS) method . The complete mitochondrial cytochrome b (CYT B) gene and three nuclear gene segments (Exon 10 of the growth hormone receptor [GHR], Inter-photoreceptor retinoid binding protein [IRBP], and Recombination activation gene 1 [RAG1]) were amplified. Primers and annealing temperatures were either taken from the literature [38–40] or designed for this study (Table 5). PCR products were purified and sequenced in both directions using the BigDye Terminator Cycle kit v. 3.1 (Invitrogen, USA) on an ABI 3730xl sequencer (Applied Biosystems, USA).
We assembled and edited sequences using DNASTAR Lasergene v. 7.1 and aligned each gene using MUSCLE . MEGA 7 was used for visual inspection .
Three data sets were used for phylogenetic analyses: 1) the CYT B data set, which included 674 in-group sequences (157 sequences from the current study and 517 sequences downloaded from GenBank; Table 2), representing 16 of 19 recognized Niviventer species and two potential new species identified in a previous study (namely, Niviventer sp. 1 and sp. 2) , with Rattus andamanensis and Chiromyscus langbianis as the outgroup. The first 60 bp and the last 63 bp of CYT B were deleted from the data set to avoid sequencing errors . 2) A four-gene concatenated data set, including sequences of 197 individuals of Niviventer plus outgroups (157 sequences from the current study and 40 sequences downloaded from NCBI GenBank; Tables 2). One to four sequences downloaded from GenBank were selected as representative of each group based on the CYT B gene tree. 3) The full data set, including 147 sequences from the current study plus 8 individuals representing six outgroup species (C. langbianis, L. edwardsi, L. neilli, R. andamanensis, R. norvegicus, and M. musculus), all of which have four gene segments (CYT B, GHR, IRBP, and RAG1).
PartitionFinder v. 1.0.0  was used to estimate the best-fit partitioning schemes and substitution evolutionary models under the Bayesian Information Criterion [42, 43]. For concatenated gene tree/species tree analyses, we concatenated gene alignments and defined by genes and codon positions. We did not consider the parameter for the proportion of invariant sites suggested by the author of RAxML . Thus, we considered 12 models for each MrBayes and BEAST. For RAxML analyses, only GTR + gamma models were considered because RAxML did not allow any other models. For coalescent species tree estimation (see below), each of the three nuclear genes was treated as one partition and the CYT B was partitioned by codon positions. jModelTest 2 was used to estimate the best-fit evolutionary model for each nuclear gene .
The phylogenetic relationships of Niviventer were reconstructed using Bayesian inference and ML approaches. ML analyses and Bayesian analyses were conducted for the CYT B data set and the full data set, respectively, and both ML and Bayesian analyses were used for the concatenated data set. The ML analyses were performed using RAxML v7.2.8 on the CIPRES Science Gateway v 3.3  (http://www.phylo.org). The BS were obtained using a rapid bootstrapping algorithm with 500 bootstrap replicates . Bayesian analyses of the concatenated data set were implemented in MrBayes v. 3.2 and repeated twice . Each analysis consisted of two independent runs, using four chains, sampled every 1,000 generations. We used Tracer v. 1.6  to access the convergence of the two independent runs and stationary state of each parameter, and ESSs higher than 200 were considered adequate. Finally, each analysis was run for 2 million generations, and the first 25% of the generations were discarded as burn-in. Bayesian analyses of the full data set were implemented in BEAST v. 1.8.2 . Each BEAST analysis used a lognormal relaxed clock model, a birth-death tree prior  and the other default parameters. The analyses were repeated twice; each was run for 200 million generations, and we sampled every 20,000 interactions. We considered BS ≥ 70 and PP ≥ 0.95 as strong support [50, 51].
We used ABGD  to recover candidate species, and species tree and Bayesian Phylogenetics and Phylogeography (BPP v. 3.1; ) for validation. The ABGD approach assumed that the largest intraspecific divergence is still less than the smallest interspecies divergence. The gap between intra- and interspecific distance observed from the distribution of sequence distances is defined as a barcoding gap. ABGD automatically clusters the sequences into groups or hypothetical species based on the barcoding gap. Thus, detection of pairwise differences is the premise of this method. The only input parameter, although imprecisely, was the maximum prior intraspecific distance, p. We chose ABGD instead of bPTP  or GMYC  because this method was independent of phylogenetic trees and particularly sensitive to recent speciation events . This analysis was performed on the ABGD website (http://wwwabi.snv.jussieu.fr/public/abgd/abgdweb.html) and used the 674 CYT B sequences as input data (Table 2). We selected the K80 model and set the transition/transversion ratio at 4.73, as estimated using MEGA 7 . We set both the number of steps and bins to 25 and ran the program with different gap widths as 0.5, 1.0, 1.5, 2.0 and 2.5. Genetic distances of CYT B between candidate species were calculated using MEGA 7  under the K2P model.
We inferred the species tree using the *BEAST model  implemented in BEAST v. 1.8.2. Species with at least one sequence per gene were included (as required by the model). We assigned the full data set of 147 individuals to 18 candidate species groups according to the results of ABGD species delimitation analyses (Additional file 1: Table S1). We run the analyses in BEAST v. 1.8.2  for 400 million generations with the same priors as in the BEAST analyses.
To validate our ABGD proposal, a multilocus coalescent species delimitation method, BPP, was performed. Based on the phylogeny, ancestral population size, and root age, BPP employed the Reversible-Jump Markov Chain Monte Carlo (rjMCMC) method to generate the posterior probability that the two groups form a single species. Two data sets were used in these analyses: i) mitochondrial and nuclear genes and ii) three nuclear genes alone. Individuals represented only by mitochondrial sequences (sequences downloaded from GenBank) were not included in our BPP analyses. Using the results of AGBD, we assigned 147 individuals to 18 candidate species (Additional file 1: Table S1). We ran BPP for each of the four major clades recovered in our phylogenetic analyses separately (see Results), and used the *BEAST coalescent species tree as the guide tree. We performed the analyses using both rjMCMC algorithms 0 and 1. Analyses were run for one million generations with a pre-burn-in of 10,000 generations and a sampling interval of 100. We repeated BPP analyses 12 times with different combinations of priors and parameters following Wan et al. .
We thank Mr. Changzhe Pu for collecting specimens.
This research was funded by the National Natural Science Foundation of China (No. 31272276) and the Fund of State Key Laboratory of Genetic Resources and Evolution, Kunming Institute of Zoology, Chinese Academy of Sciences (GREKF13-07).
All newly conducted DNA sequences were submitted to GenBank with accession numbers KY068361–KY069019. Accession numbers of each gene locus for all specimens are also provided in Additional file 1: Table S1 and Additional file 2: Table S2.
BZ, KH, and TW contributed to the laboratory work, data analyses, and manuscript writing. PC, GZS, SYL, TSN, and LKL conducted field work and collected specimens. XLJ conceived the study and commented on the manuscript. All authors have read and approved the final manuscript.
The specimen collections were approved by the internal review board of Kunming Institute of Zoology, Chinese Academy of Sciences (approval ID: SYDW-20160606001).
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Born November 20th, 1968. Degree in Economics from LUISS. PhD in Business Administration and Management from Università Bocconi.
Research Scholar at MIT Sloan School of Management, Center for Information System Research . Research Scholar for the Decision and Information Science Department of the University of Florida. In charge of the course of Business Organization, Management of Information Systems, and Information Management for the various Degree Programs of Università Bocconi. He has participated in various reseearch projects, many financed by Italian Ministry of University and Scientific Research.
Management of corporate information systems, focusin on: the link between IT and productivity; organization and governance of information systems in the banking industry; adoption and implementation of information systems for management control.
- Themistocleous M., Morabito V. (Forthcoming 2015) “A Framework for SOA Adoption in e-Banking: The Case of a Transition and a Developed Economy”. Information Technology for Development. ISSN: 0268-1102.
- Basias N., Themistocleous M., Morabito V., (Forthcoming 2015) “A Decision Making Framework for SOA Adoption in e-Banking: A Case Study Approach”. In press - Journal of Economics, Business and Management.
- Pansini F., Terzieva M., Morabito V., (Forthcoming 2014) “The path towards discovering PMO: an exploratory analysis on Italian banking sector”. International Journal of Information Systems and Project Management ISSN 2182-7796.
- V. Morabito (2014) “Trends and Challenges in Digital Business Innovation”. ISBN 978-3-319-04306-7. Springer. pp 1-225.
- V. Morabito (2013) “Business Technology Organization – Managing Digital Information Technology for Value Creation – The SIGMA Approach”– ISBN 978-3-642-32697-4. Springer.
- Morabito V., De Nicolai S. (2013) “ Le aziende per progetto e le sfide dell’economia contemporanea”. In Morabito V. (Ed.) “ Project Management Office. Da leva organizzativa a driver di competitivita’”. Egea, Milano. ISBN 978-88-238-3485-1. pp 13-24.
- Morabito V. (a cura di) (2013) “ Project Management Office. Da leva organizzativa a driver di competitivita’”. Egea, Milano. ISBN 978-88-238-3485-1. pp 1-148.
- Basias, N. Themistocleous, M. Morabito, V. (2013) “SOA Adoption in e-Banking’”. Journal of Enterprise Information Management , Vol. 26 Iss: 6, pp.719 – 739.
- Themistocleous, M. Amin Azab, N. Mustafa Kamal, M. Ali, M. and Morabito V. (2012) “Location-Based Services for Public Policy Making: The Direct and Indirect Way to e-Participation “. Information Systems Management, Vol. 29 pp. 269–283.
- Themistocleous M. and Morabito, V. (2012) ‘How can User-Centered Design Affect the Acceptance and Adoption of Service Oriented Healthcare Information Systems?’. International Journal of Healthcare Technology and Management, (IJHTM), Vol. 13, No. 5/6, 2012 - ISSN 1368-2156.

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