Doering v. United States of America

Filing 22

ORDER granting 16 Motion for Leave to Amend. Signed by US Magistrate Judge Veronica L. Duffy on 6/24/2016. (CG)

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
WESTERN DIVISION
PAUL F. DOERING,

5:16-CV-05016-JLV

Petitioner,
ORDER GRANTING PETITIONER’S
MOTION TO AMEND

vs.
UNITED STATES OF AMERICA,

DOCKET NO. 16

Respondent.

This matter is before the court on petitioner Paul F. Doering’s motion to
vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. See
Docket No. 1. Mr. Doering now moves to amend his motion. See Docket No.
16. The United States of America (government) resists. See Docket No. 19.
This matter has been referred to this magistrate judge by the Honorable Jeffrey
L. Viken, Chief United States District Judge. See Docket No. 15.
Motions to amend are freely granted when justice so requires. FED. R.
CIV. P. 15(a). Leave to amend is denied only if evidence exists Asuch as undue
delay, bad faith, or dilatory motive on the part of the movant, repeated failure
to cure deficiencies by amendments previously allowed, undue prejudice to the
opposing party by virtue of allowance of the amendment, [or] futility of the
amendment.@ Roberson v. Hayti Police Dep=t., 241 F.3d 992, 995 (8th Cir.
2001) (citing Foman v.Davis, 371 U.S. 178, 182 (1962)); Ingrim v. State Farm

Fire & Casualty Co., 249 F.3d 743, 745 (8th Cir. 2001). Motions to amend
should be denied when the amendment would be futile. Plymouth County,
Iowa v. Merscorp, Inc., 774 F.3d 1155, 1160 (8th Cir. 2015); Becker v. Univ. of
Neb. at Omaha, 191 F.3d 904, 908 (8th Cir. 1999) (citing Gamma-10 Plastics,
Inc. v. American President Lines, Ltd., 32 F.3d 1244, 1255 (8th Cir. 1994)).
The party opposing the amendment bears the burden of proving that some
reason exists to deny leave to amend. Roberson, 241 F.3d at 995; Sanders v.
Clemco Indus., 823 F.2d 214 (8th Cir. 1987).
Here, Mr. Doering wishes to assert an additional claim that a portion of
the United States Sentencing Guidelines has been rendered unconstitutionally
vague pursuant to the United States Supreme Court’s decision in Johnson v.
United States, 576 U.S. ___, 135 S. Ct. 2551 (2015). See Docket No. 16-1.
Mr. Doering also seeks to delete one allegation he previously made as to
ineffective assistance of counsel. Id. The government resists, arguing that the
additional claim will be unavailing to Mr. Doering. However, the government
cites no case law indicating that Mr. Doering’s claim is futile. Instead, the best
argument asserted by the government is that the Eighth Circuit has not yet
addressed the application of Johnson to the USSG.
The burden is on the government to demonstrate grounds why
Mr. Doering should not be allowed to amend. It has failed to carry that
burden. Accordingly, it is hereby
ORDERED that Mr. Doering’s motion to amend [Docket No. 16] is
granted. Mr. Doering shall file his amended motion and serve the government
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therewith. The government shall file a response to the amended motion within
30 days after service of the motion on it.
DATED this 24th day of June, 2016.
BY THE COURT:

VERONICA L. DUFFY
United States Magistrate Judge

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