Wise v. United States of America (INMATE 3)

Filing 20

ORDERED that 19 Motion for Leave to Amend is GRANTED; and that the US Attorney shall file a a supplemental response addressing the new claim asserted by Petitioner in the amendment to his § 2255 motion within thirty (30) days from the date of this order as further set out. Signed by Honorable Wallace Capel, Jr on 3/10/2009. (cb, )

IN THE DISTRICT COURT OF THE UNITED STATES F O R THE MIDDLE DISTRICT OF ALABAMA N O R T H E R N DIVISION D A V I D DEJUAN WISE, P e titio n e r, v. UNITED STATES OF AMERICA, R e sp o n d e n t. ) ) ) ) ) ) ) ) )

Civil Action No. 2:08cv17-MHT (WO)

O R D E R ON MOTION P e titio n e r has filed a motion for leave to amend his 28 U.S.C. § 2255 motion to add a new claim. (Doc. No. 19.) Upon consideration of this motion, it is O R D E R E D that Petitioner's motion for leave to amend (Doc. No. 19) be and is h e re b y GRANTED. F u r th e r , the United States Attorney for the Middle District of Alabama is ORDERED to file a supplemental response addressing the new claim asserted by P e titio n e r in the amendment to his § 2255 motion within thirty (30) days from the date of this o r d e r . If this court is barred from reviewing the petitioner's claims due to his failure to p ro p e rly preserve such claim, the government shall provide a factual and legal basis for the p ro c e d u ra l default argument. In addition, the government is advised that its response should c o n ta in a procedural history and all relevant information, including identification of the c la im s contained in Petitioner's original § 2255 motion, from which the court can determine th e applicability of the limitation period to the newly asserted claim.

In its supplemental response, the government should make specific reference to Rule 1 5 (c ), Fed.R.Civ.P., which provides that "[a]n amendment of a pleading relates back to the d a te of the original pleading when ... the claim or defense asserted in the amended pleading a ro se out of the conduct, transaction, or occurrence set forth in the original pleading." Rule 1 5 (c )( 2 ), Fed.R.Civ.P. See Pruitt v. United States, 274 F.3d 1315, 1318-19 (11 th Cir. 2001) (a m e n d e d claims excluded from application of the limitation period only if they relate back to timely filed claims); Davenport v. United States, 217 F.3d 1341, 1344 (11 th Cir. 2000) (sam e). D o n e this 10 th day of March, 2009.

/s/Wallace Capel, Jr. WALLACE CAPEL, JR. U N IT E D STATES MAGISTRATE JUDGE

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