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Motion to Amend Section 2255 Petition

Occasionally, a section 2255 movant will find it necessary to amend the already filed motion. The Federal Rules of Civil Procedure govern such amendments, and according to Rule 15, “[ t]he court should freely give leave [to amend] when justice so requires.” The first amendment is permitted as a matter of course, and without leave of court, if the amendment is filed prior to when the movant is served with the Government’s responsive pleading. Fed. R. Civ. P. 15(a)(1). Note that a motion to dismiss is not a responsive pleading. This article discusses the motion to amend section 2255 petition.

Problems with Motion to Amend Section 2255 Petition

Amendments can present special problems in the habeas corpus context. The single biggest potential problem for a litigant who wishes to amend is the AEDPA-imposed statute of limitations. 28 U.S.C. §2255(f).  If an amendment adds a new claim or supplements an already-filed claim, the claim or supplement will be time-barred if it does not satisfy the statute of limitations.

AEDPA Statute of Limitations: The Relation Back Doctrine

The only exception that would allow an otherwise late amendment is the “relation back” doctrine. This legal fiction “causes an otherwise untimely claim to be considered timely by treating it as if it has been filed when the timely claims were filed.” Davenport v. United States, 217 F.3d 1341, 1344 (11th Cir. 2000). According to the Federal Rules of Civil Procedure, “[ a]n amendment to a pleading relates back to themotion to amend, section 2255 petition date of the original pleading when . . . the amendment asserts a claim or defense that arose out of the conduct, transaction, or occurrence set out — or attempted to be set out — in the original pleading.” Fed. R. Civ. P. 15(c)(1)( B).

Whether a claim relates back “depends on the existence of a common ‘core of operative facts’ uniting the original and newly asserted claims.” Mayle v. Felix, 545 U.S. 644, 659 (2005). An amended section 2255 motion will not relate back if it asserts “a new ground for relief supported by facts that differ in both time and type from those the original pleading set forth.” Id. at 650. In short, relation back will not be allowed where the amendment “seek(s) to add an entirely new claim or new theory of relief.” United States v. Thomas, 221 F.3d 430, 436 (3rd Cir. 2000).

Filing the Motion to Amend Section 2255 Petition

A section 2255 movant who wishes to amend should file a motion to amend with the court. The proposed amendment should be attached to the motion. If the court grants the motion and the claims are timely, the amended motion supercedes the original section 2255 motion, and becomes the operative document. Newell v. Hanks, 283 F.3d 827, 834 (7th Cir. 2002).

Denial of the Motion to Amend Section 2255 Petition

Note that the case law interpreting Fed. R. Civ. P. 15 applies to motions to amend in the 2255 setting. Pursuant to this law, there are many reasons that a court may use to deny leave to amend a section 2255 petition, despite the language of the Rule (“The court should freely give leave [to amend] when justice so requires”). Such reasons to deny a motion to amend include “undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, [or] undue prejudice to the opposing party by virtue of allowance of the amendment.” Foman v. Davis, 371 U.S. 178, 182 (1962). An additional (and often used) reason to deny leave to amend is that the requested amendment would be futile. See, e.g., Hazel v. United States, 303 F.Supp.2d 753 (E.D. Va. 2004)(Motion to add Brady claim was denied as futile because the alleged Brady material was neither favorable nor material).

Best Practice: Avoiding the Need to Amend

When it comes to drafting a section 2255 petition, best practices suggest avoiding the need to amend. Significant preparation should be invested in the original filing. Moving the court to allow an amendment is a last resort.

Experienced Section 2525 Petition Attorneys

But sometimes a claim comes along after the initial filing, and an amendment is unavoidable and necessary. If you or a loved one find yourself in such a situation, contact the Law Offices of Brandon Sample immediately. Our experienced drafting team can help you avoid the pitfalls of Rule 15. We will employ our skills in order to ensure that your motion to amend section 2255 petition is accepted.

Motion to Amend Section 2255 Petition FAQs

Q: Can I make changes to my section 2255 petition after I submit it to the court?

A: Whether a section 2255 motion can be amended depends on several factors. If the proposed amendment is the first amendment, and it is requested prior to the Government’s responsive pleading having been filed, the amendment will usually be permitted as a matter of course Fed. R. Civ. P. 15(a)(1). A second or successive proposed amendment, or an amendment that is requested after the Government has filed a responsive pleading, is much less likely to be permitted, although such amendments are sometimes allowed. Leave to amend should generally be allowed when “justice so requires.” Fed. R. Civ. P. 15.

Q: How do I amend my section 2255 petition after I have submitted it?

A: Once the section 2255 petition is filed, the motion can be amended only with permission of the court. The litigant asks for such permission by filing a “motion to amend.” The motion to amend must tell the court why the amendment is requested and under what authority the court may permit the amendment. The proposed amendment should also be attached to the motion to amend. If the court grants the motion, the amended section 2255 petition will become the operant document.

Q: I want to amend my section 2255 petition to add new claims, but the one-year statute of limitations has run. Will that be a problem?

A: If a proposed amendment to a section 2255 petition would add a new claim or supplement an already-filed claim after the one-year time limitation from §2255(f) has passed, it is very likely to be disallowed by the court. The section 2255(f) statute of limitations applies to newly filed claims and amendments to already filed claims. The only way to avoid the procedural bar when amending a claim post-statute of limitations is by arguing the “relation back” doctrine. If the proposed amendment arguably depends on the existence of a common “core of operative facts” uniting the original and newly asserted claim, it will “relate back” and be permitted as an amendment. If instead the amendment simply seeks to add an entirely new claim that is time barred, it will not be allowed.

Q: Can you help me amend and litigate my section 2255 petition?

A: Yes. The attorneys and staff at the Law Offices of Brandon Sample have significant experience with section 2255 practice. Whether you are still considering making an initial section 2255 petition filing, or want to amend what you already filed, we can help. Contact us now to discuss your case.

Related Content

Preparing for a Section 2255 Motion

Section 2255 Litigation: The Initial Motion

Section 2255 Litigation: Post-Filing Proceedings

Section 2255 Litigation: Expanding the Record

Section 2255 Litigation: Discovery

Section 2255 Litigation: The Evidentiary Hearing

Section 2255 Litigation: Resolution by Magistrate

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