Bolanos-Nunez v. USA

Filing 8

ORDER granting 7 Movant's Motion for Leave to Amend. Within 20 days of the date of this Order is filed, Movant may file Amended Motion to Vacate, Set Aside or Correct Sentence. Respondent must answer the Amended Motion to Vacate, Set Aside or Correct Sentence within 40 days of its filing date. Signed by Magistrate Judge Lawrence O Anderson on 3/28/14. (Attachments: # 1 2255 Form). (LSP)

1 WO
2
3
4
5
6

IN THE UNITED STATES DISTRICT COURT

7

FOR THE DISTRICT OF ARIZONA

8
9 United States of America,

Plaintiff/Respondent,

10
11 vs.

12 Oscar Bolanos-Nunez,
13
14
15

Defendant/Movant.

)
)
)
)
)
)
)
)
)
)
)

No. CV-13-1088-PHX-GMS (LOA)
No. CR-12-199-PHX-GMS
ORDER

This matter arises on Movant Oscar Bolanos-Nunez’s Motion for Leave to Amend. (Doc.

16 7) Movant seeks leave to file an Amended Motion to Vacate, Set Aside or Correct Sentence
17 Pursuant to 28 U.S.C. § 2255. Respondent United States of America has not filed a response to
18 the motion and the time to do so has expired. See Civil Rule of Practice (“Local Rule”or
19 “LRCiv”) 7.2(c). The Court construes Respondent’s failure to respond as consent to the granting
20 of the motion. See LRCiv 7.2(i) (failure to file a response to a motion may be deemed a consent
21 to the granting of the motion and the Court may dispose of it summarily).
22

Movant initiated this action by filing a Motion to Vacate, Set Aside or Correct Sentence

23 Pursuant to 28 U.S.C. § 2255 on May 28, 2013. (Doc. 1) The assigned District Judge reviewed
24 the Motion and, on August 20, 2013, ordered Respondent to file an answer. (Doc. 3) On
25 December 20, 2013, Respondent filed a Response in Opposition to Motion to Vacate, Set Aside
26 or Correct Sentence Pursuant to 28 U.S.C. § 2255. (Doc. 6) Movant has not filed a reply.
27
28

In the instant motion, Movant seeks leave to amend because, since filing his Motion
to Vacate, he has received information and documentation from his trial-level counsel that is

1

relevant to his claims of ineffective assistance. Movant contends the additional information will

2

allow him to more fully support his claims for relief. Movant, however, has failed to comply

3

with LRCiv 15.1(a) by not “[a]ttach[ing] a copy of the proposed amended pleading as an exhibit

4

to the motion, which must indicate in what respect it differs from the pleading which it amends,

5

by bracketing or striking through the text to be deleted and underlining the text to be added.”

6

Pursuant to Rule 12 of the Rules Governing Section 2255 Proceedings for the United

7

States District Courts, the Federal Rules of Civil Procedure (“Fed.R.Civ.P”) may be applied to

8

§ 2255 proceedings, “[t]o the extent that they are not inconsistent with any statutory provisions

9

or these rules.” Rule 15(a)(1), Fed.R.Civ.P., provides, in relevant part, that “[a] party may

10

amend its pleading once as a matter of course within . . . 21 days after service of a responsive

11

pleading.” “In all other cases, a party may amend its pleading only with the opposing party’s

12

written consent or the [district] court’s leave.” Fed.R.Civ.P. 15(a)(2). “The court should freely

13

give leave when justice so requires.” Id.

14

Here, because more than 21 days had passed since Respondent filed its responsive

15

pleading, Movant properly sought leave of court to amend his Motion to Vacate. Absent any

16

opposition and in light of the policy to freely grant leave when justice so requires, the Motion

17

for Leave to Amend will be granted even though a copy of the proposed petition was not

18

attached to the motion as mandated by LRCiv 15.1(a). Movant will be provided twenty days

19

from the date of this Order to file an Amended Motion to Vacate, Set Aside or Correct Sentence

20

Pursuant to 28 U.S.C. § 2255.

21

Respondent will be directed to file an answer to the Amended Motion to Vacate within

22

forty (40) days of the date the Amended Motion to Vacate is filed. With the exception of the

23

deadline for Respondent to file an answer, the District Judge’s August 20, 2013 Order, doc. 3,

24

remains in effect.

25

Accordingly,

26

IT IS ORDERED that Movant’s Motion for Leave to Amend, doc. 7, is GRANTED.

27

Within twenty (20) days of the date of this Order is filed, Movant may file Amended Motion

28

to Vacate, Set Aside or Correct Sentence Pursuant to 28 U.S.C. § 2255.
-2-

1

IT IS FURTHER ORDERED that the Clerk of Court is kindly directed to send Movant

2

the current court-approved form for filing a “Motion Under 28 U.S.C. § 2255 to Vacate, Set

3

Aside, or Correct Sentence by a Person in Federal Custody.” Movant shall use that form for his

4

amended motion.

5

IT IS FURTHER ORDERED that Respondent must answer the Amended Motion to

6

Vacate, Set Aside or Correct Sentence Pursuant to 28 U.S.C. § 2255 within 40 days of its filing

7

date. With the exception of the deadline for Respondent to file an answer, the District Judge’s

8

August 20, 2013 Order, doc. 3, remains in effect.

9

IT IS FURTHER ORDERED that counsel and any unrepresented party must comply

10

with the Rules of Practice for the United States District Court for the District of Arizona (“Local

11

Rules”). The District’s Rules of Practice may be found on the District Court’s internet web page

12

at www.azd.uscourts.gov/. All other rules may be found at www.uscourts.gov/rules/.

13

DATED this 28th day of March, 2014.

14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
-3-