Johnson v. USA

Filing 27

ORDER GRANTING IN PART AND DENYING IN PART 25 MOTION for Extension of Time to File Amended 2255 Petition or Amended Traverse filed by Wendell Johnson, 26 MOTION for Extension of Time to File Amended Motion to Vacate, Set Aside or Ccorrect Sentence filed by Wendell Johnson. See Order for specifics. Petitioner's amended reply due on or before 7/8/2013. Signed by Judge William D. Stiehl on 3/1/2013. (jst)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
WENDELL JOHNSON,
Petitioner,
v.
UNITED STATES OF AMERICA
Respondent.

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CASE NO. 11-CV-580-WDS

ORDER
STIEHL, District Judge:
Before the Court is petitioner’s motion for an extension of time to file an amended motion
to vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255, or to file a traverse1 to the
government’s response (Doc. 25). Petitioner filed an additional motion for extension of time
making the same requests, but for a longer extension, on February 27, 2013 (Doc. 26). The
government has not filed a response to either motion.
Petitioner’s counsel seeks an extension based upon the fact that counsel was appointed on
December 17, 2012 and entered his appearance on December 19, 2012, and needs additional time
beyond the December 24, 2012 deadline to adequately review the trial and appellate records,
obtain transcripts, gather records, and prepare the pleading. Counsel also has previously
scheduled work related out-of-district travel and seeks an extension on this premise as well.
Finally, counsel is also arranging for an interview of the petitioner. Petitioner’s counsel initially
requested an extension until March 4, 2013, but in his later motion, asks for an extension until July
8, 2013.
Pursuant to the Rules Governing Section 2255 Proceedings, Rule 12, “[t]he Federal Rules
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Petitioner’s counsel appears to use the word “traverse” interchangeably with “reply.”

of Civil Procedure . . . , to the extent that they are not inconsistent with any statutory provisions or
these rules, may be applied to a proceeding under these rules.” “An amended habeas petition, . . .
, does not relate back (and thereby escape AEDPA’s one-year time limit) when it asserts a new
ground for relief supported by facts that differ in both time and type from those the original
pleadings set forth.” Mayle v. Felix, 545 U.S. 644, 649 (2005). Under Fed. R. Civ. P. 15(c)(2),
once a responsive pleading has been filed, a prisoner may amend the petition ‘only by leave of
court or by written consent of the adverse party.’” Id. at 663 (quoting Fed. R. Civ. P. 15(a)).
Petitioner has already filed his original petition (Doc. 1), and fourteen other documents
including numerous motions to supplement and amend, an affidavit, exhibit, response to the
Court’s Order directing the government to respond, a motion to expand the record, a reply to the
government’s response, and two supplements to that reply (See Docs. 2-6, 8, 9, 12-15, 19, 20, 22 ).
Although the Court has not yet ruled on all of petitioner’s motions to supplement or amend, it has
already granted some of them and directed the government to respond to the others. Furthermore,
the government has already filed its response, consisting of a twenty page memorandum and 76
pages of exhibits, and undoubtedly expended time and resources in doing so. In light of this,
allowing further amendment at this point in the proceedings, after the government has responded
to all of petitioner’s previously submitted materials, is too much.
Upon review of the record, petitioner’s counsel’s motions (Docs. 25, 26) are GRANTED
IN PART and DENIED IN PART as follows: petitioner’s counsel’s request to further amend the
petitioner’s already repeatedly amended and supplemented claims is DENIED. In light of
counsel’s recent appearance on petitioner’s behalf, and the lack of opposition from the
government, the Court GRANTS petitioner’s counsel’s request for extension of time to file an
amended reply, and the amended reply shall be filed on or before July 8, 2013. In light of the

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fact that petitioner is now represented by counsel, petitioner may not file pleadings pro se. All
pleadings must be filed by counsel. Accordingly, the Court STRIKES petitioner’s pro se reply
and supplements thereto (Docs. 19, 20, 22). The Court will, however, allow petitioner’s counsel
to incorporate meritorious arguments from those stricken pleadings in his amended reply.

IT IS SO ORDERED.
DATE: March 1, 2013
/s/ WILLIAM D. STIEHL
DISTRICT JUDGE

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