UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-11267
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ZOSIMO REYES SAENZ,
Defendant-Appellant.
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Appeal from the United States District Court
for the Northern District of Texas
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February 11, 2002
Before DUHÉ, BARKSDALE, and DENNIS, Circuit Judges.
RHESA HAWKINS BARKSDALE, Circuit Judge:
This appeal presents an issue of first impression in this
circuit: whether the district court abused its discretion by
denying, as time-barred, Zosimo Reyes Saenz’s motion to amend his
28 U.S.C. § 2255 motion, rather than deciding whether, pursuant to
Federal Rule of Civil Procedure 15, to allow the amendment. Saenz,
federal prisoner # 27420-077, was granted a certificate of
appealability on this issue alone. VACATED in PART and REMANDED.
I.
Saenz was found guilty, following a jury trial, of possession
with intent to distribute methamphetamine, in violation of 21
U.S.C. §§ 841(a)(1) and 841(b)(1)(A)(viii) (Count I), and
possession of a firearm during and in relation to a drug
trafficking crime, in violation of 18 U.S.C. § 924(c)(1) (Count
II). In November 1995, Saenz was sentenced to 235 months
imprisonment on Count I and 60 months on Count II. His appeal was
dismissed following the submission of an Anders motion and brief by
his court-appointed counsel. United States v. Saenz, No. 95-11087
(5th Cir. 1996) (unpublished). That dismissal ruled Saenz’s
ineffective assistance of counsel claims should be raised in a §
2255 motion.
In February 1997, Saenz moved to correct his sentence,
pursuant to 18 U.S.C. § 3582(c)(1) (presenting a claim under
Bailey v. United States, 516 U.S. 137 (1995)). The district court
treated the filing as a 28 U.S.C. § 2255 motion. Following an
appeal being voluntarily dismissed by Saenz (because there was no
final or otherwise appealable order), the district court granted
Saenz’s motion to supplement his § 2255 motion and permitted the
Government to respond to additional grounds raised in the
supplement. Saenz’s supplemental motion alleged, inter alia:
“Defendant never had any offer for a plea. Defendant never had
sufficient comunication [sic] with caunsel [sic] exept [sic] trough
[sic] messangers [sic] who come to Jail to say. (Kevin [Saenz’s
trial counsel] want you to signe [sic] this papers.)”
Following responses by the Government and Saenz in May and
June 1997, respectively, the case languished for almost three years
until 18 January 2000, when Saenz moved to supplement his § 2255
motion, seeking to add that his trial counsel failed to convey a
plea offer to him. The magistrate judge denied, as time-barred,
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Saenz’s motion to supplement, concluding that he waited 28 months
after learning of the plea offer to present this claim. The
magistrate judge then recommended denial of Saenz’s § 2255 motion.
Following receipt of Saenz’s objections (including not being
allowed to supplement), the district court adopted the magistrate’s
report and recommendations, denying Saenz’s § 2255 motion.
Saenz timely filed a notice of appeal and separately filed an
application for a certificate of appealability (COA). The
magistrate judge recommended denial of the COA for the reasons
stated in his report and recommendations, and the district court
adopted that recommendation, denying Saenz’s COA request. On 2
April 2001, our court: denied the majority of the COA request but
granted a COA on “whether the district court abused its discretion
when it denied as time barred [Saenz’s] motion to amend the
complaint”; and appointed counsel for him.
II.
Habeas applications “may be amended or supplemented as
provided in the rules of procedure applicable to civil actions”.
28 U.S.C. § 2242. Similarly, Rule 12 of the Rules Governing
Section 2255 Proceedings for the United States District Courts
authorizes district courts to apply the Federal Rules of Civil
Procedure when appropriate and not inconsistent with applicable
statutes or rules.
Subject to certain conditions, Federal Rule of Civil Procedure
15 allows a party to amend a pleading. He may do so, inter alia,
once before service of a responsive pleading; otherwise, he may
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amend “only by leave of court or by written consent of the adverse
party; and leave shall be freely given when justice so requires”.
FED. R. CIV. P. 15(a). “An amendment of a pleading relates back to
the date of the original pleading when ... 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.” FED. R. CIV. P. 15(c)(2).
The Government concedes Rule 15 applies in § 2255 proceedings.
Every circuit that has addressed this issue agrees the Anti-
Terrorism and Effective Death Penalty Act’s one-year statute of
limitations, 28 U.S.C. §§ 2244(d)(1) and 2255, does not render Rule
15 inapplicable to federal habeas proceedings. See, e.g., Calderon
v. Ashmus, 523 U.S. 740, 750 (1998) (Breyer, J., concurring)
(unless expressly governed by statute, Rule 15 applies in habeas
proceedings); Fama v. Comm’r of Corr. Servs., 235 F.3d 804, 814-16
(2d Cir. 2000) (applying Rule 15 to both §§ 2254 and 2255 motions);
Anthony v. Cambra, 236 F.3d 568, 576-77 (9th Cir. 2000) (applying
Rule 15 to § 2255 motion), cert. denied, 121 S. Ct. 2576 (2001);
United States v. Espinoza-Saenz, 235 F.3d 501, 503-04 (10th Cir.
2000) (§ 2255 motion); United States v. Thomas, 221 F.3d 430, 436
(3d Cir. 2000) (Rule 15 applies to § 2255 as long as the petitioner
is not seeking “to add an entirely new claim or new theory of
relief”.); Davenport v. United States, 217 F.3d 1341, 1344-46 (11th
Cir. 2000), cert. denied, 121 S. Ct. 1232 (2001); United States v.
Pittman, 209 F.3d 314, 317-18 (4th Cir. 2000); United States v.
Craycraft, 167 F.3d 451, 457 (8th Cir. 1999).
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Moreover, the Government is of the opinion that the proposed
amendment — counsel’s alleged failure to convey a plea offer —
relates back to Saenz’s permitted 1997 supplement concerning the
claims that trial counsel was ineffective because, inter alia, he
did not sufficiently communicate with Saenz and “Defendant never
had any offer for a plea”.
The district court, by adopting the magistrate judge’s report
and recommendations, denied Saenz’s motion as time-barred. We
review for abuse of discretion a district court’s decision
concerning amendment of pleadings. E.g., Union Planters Nat’l
Leasing, Inc. v. Woods, 687 F.2d 117, 121 (5th Cir. 1982). An
erroneous legal conclusion constitutes an abuse of discretion.
E.g., In re Coastal Plains, Inc., 179 F.3d 197, 205 (5th Cir.
1999), cert. denied, 528 U.S. 1117 (2000).
Because the Government responded to Saenz’s supplemental
motion in 1997, Saenz was required to seek leave from the district
court to again amend his § 2255 motion. See FED. R. CIV. P. 15(a).
The district court ruled Saenz’s motion was time-barred, without
explaining the basis, Rule 15 or otherwise, for doing so. In other
words, it should have stated the underlying legal basis for its
finding a time-bar, including determining, under Rule 15, whether
the amendment related back to Saenz’s original pleading and
“consider[ed] such factors as prejudice to the opposing party,
undue delay, repeated failure to cure deficiencies with prior
amendment, bad faith, dilatory motive and futility of amendment”.
Union Planters, 687 F.2d at 121.
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III.
Therefore, we VACATE that portion of the judgment denying
leave to supplement concerning Saenz’s allegedly not receiving a
plea offer from his trial counsel and REMAND to the district court
for further proceedings consistent with this opinion, including
deciding whether the supplement should be allowed under Federal
Rule of Civil Procedure 15.
VACATED in PART and REMANDED
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