Cox v. United States of America (INMATE3)

Filing 14

ORDER granting 10 Motion for Leave to amend and 11 Motion to Amend his 2255 motion; directing that within 30 days the US shall file a supplemental response, as further set out in order; directing the clerk to provide copies of petitioner's a mended 2255 motion 11 and his affidavit with attachments 13 to attorneys Leon David Walker and Susan Graham James; ORDERING that within 20 days from the date of this order, Mr. Walker and Ms. James shall file with the court affidavits, as further set out in order. Signed by Honorable Wallace Capel, Jr on 8/11/09. (djy, )

IN THE DISTRICT COURT OF THE UNITED STATES F O R THE MIDDLE DISTRICT OF ALABAMA E A S T E R N DIVISION J U D S O N MARSHALL COX, P e titio n e r, v. U N IT E D STATES OF AMERICA, R e sp o n d e n t. ) ) ) ) ) ) ) ) )

Civil Action No. 3:09cv448-WKW (WO)

O R D E R ON MOTION U p o n consideration of Petitioner's motion for leave to amend his § 2255 motion (Doc. N o . 10) and Petitioner's motion to amend his § 2255 motion (Doc. No. 11) it is O R D E R E D that these motions (Doc. Nos. 10 and 11) be and are hereby GRANTED. P e titio n e r's motion to amend his § 2255 motion contains additional claims of in e f fe c tiv e assistance of counsel. Accordingly, it is further O R D E R E D that within thirty (30) days from the date of this order, the United States s h a ll file a supplemental response addressing the claims of ineffective assistance of counsel p re se n te d in Petitioner's amendment to his § 2255 motion. The government is advised that its supplemental response should contain all relevant information, including identification o f the claims contained in Petitioner's original § 2255 motion, from which the court can d e te rm in e the applicability of the limitation period to the claims presented in Petitioner's m o tio n to amend. The government should make specific reference to Rule 15(c),

F e d .R .C iv .P ., which provides that "[a]n amendment of a pleading relates back to the date of t h e original pleading when ... the claim or defense asserted in the amended pleading arose o u t 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). In light of the foregoing, the CLERK is DIRECTED to provide copies of Petitioner's a m e n d e d § 2255 motion (Doc. No. 11) and his affidavit with attachments (Doc. No. 13) to a tto rn e ys Leon David Walker and Susan Graham James. Accordingly, it is O R D E R E D that within twenty (20) days from the date of this order, Mr. Walker and M s . James shall file with this court affidavits that address the claims of ineffective assistance o f counsel presented against them in Petitioner's amended § 2255 motion. Mr. Walker and M s. James shall also furnish the United States Attorney and Petitioner with copies of their a f f i d a v its . D o n e this 11 th day of August, 2009.

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

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