LEWIS v. WALSH et al

Filing 32

ORDER THAT PETITIONER SHALL HAVE 14 DAYS FROM THE DATE OF THIS ORDER TO FILE AN AMENDED HABEAS PETITION ADDING PROPOSED PART M TO HIS HABEAS PETITION, ETC.. SIGNED BY MAGISTRATE JUDGE RICHARD A. LLORET ON 5/13/15. 5/13/15 ENTERED AND COPIES E-MAILED.(gs)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA

BRAHEEM LEWIS
v.
JEROME WALSH, et al.

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CIVIL ACTION

NO. 14-01908

MEMORANDUM
RICHARD A. LLORET
U.S. Magistrate Judge

May 13, 2015

Braheem Lewis (“Petitioner”) filed a Motion to Amend and Correct his Habeas
Petition on April 6, 2015. See Motion to Amend Petition for Writ of Habeas Corpus
[“Motion to Amend”], Doc. No. 28. He seeks to amend his habeas petition to
incorporate a thirteenth ground for relief, notably that he was denied due process due to
a trial court sentencing error in violation of Apprendi v. New Jersey, 530 U.S. 466
(2000) that his counsel at the time should have raised on appeal. Id. As Apprendi was
decided in the midst of his petition for allocatur, his attorney at the time “could have
filed a motion to supplement the allocatur petition in light of Apprendi, and had [his
counsel] done so, the chances are very good that either the Pennsylvania Supreme Court
would have granted allowance of appeal or at the very least remanded to the Superior
Court for consideration of the Apprendi issue.” See id. at 2.
The Commonwealth filed a motion in opposition to the motion to amend on April
13, 2015. See Response Opposing Motion to Amend [“Com. Resp.”], Doc. No. 29. The
Commonwealth argues that the federal habeas statute of limitations has run and “new
claims may not be added to habeas petitions which were timely when filed.” See Com.
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Resp. at 1 (citations omitted). Petitioner replied to the opposition of the motion to
amend by noting that his proposed amendment “specifically incorporated the fully
developed argument with respect to actual innocence which is contained in Part IV(L),
pp. 40-45 of his contemporaneously submitted Reply to the Petition.” See Petitioner’s
Reply to the Response Opposing Motion to Amend, Doc. No. 30, at 1.
Cited with approval by the Commonwealth and instructive in resolving this
dispute is Mayle v. Felix, 545 U.S. 644 (2005). Mayle permits amendments to habeas
petitions “only when the claims added by amendment arise from the same core facts as
the timely filed claims, and not when the new claims depend upon events separate in
‘both time and type’ from the originally raised episodes.” Id. at 657. Here, the proposed
Ground M argues that the trial court erred in imposing an enhanced sentence of 20-40
years for attempted murder while failing to make a specific filing at the time of the
verdict that serious bodily injury resulted. See Motion to Amend at 1. That claim also
argues that Petitioner’s counsel “was seriously ineffective” in failing to raise that issue
on appeal. See id. at 3.
Petitioner has implicated issues related to prior counsel ineffectiveness at the
appellate level in Parts C and H of his petition and sentencing errors in Part I. See
Memorandum in Support of Petition for Writ of Habeas Corpus, Doc. No. 13, at 27-31,
46-47. Though Petitioner failed to cite to the Mayle decision in making this request to
me, I believe that these issues do “arise from the same core facts as the timely filed
claims,” which was the standard announced in that case. See 545 U.S. at 657.

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ORDER
Petitioner shall have 14 days from the date of this order to file an amended habeas
petition adding proposed Part M to his habeas petition. The Commonwealth shall have
21 days from the date the amended habeas petition is filed to respond to the arguments
in Part M.
BY THE COURT:

_s/Richard A. Lloret_____
RICHARD A. LLORET
UNITED STATES MAGISTRATE JUDGE

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