Opinion
1:14-CR-00201-LJO
10-13-2015
UNITED STATES OF AMERICA, Plaintiff-Respondent, v. FAUSTO ARTHUR CRUZ-HERNANDEZ, Defendant-Petitioner.
ORDER ON DEFENDANT-PETITIONER'S MOTION FOR LEAVE TO AMEND MOTION FOR RELIEF UNDER 28 U.S.C. § 2255 (Doc. 26)
On August 5, 2015, Fausto Arthur Cruz-Hernandez ("Petitioner"), a prisoner in federal custody, filed a pro se 28 U.S.C. § 2255 motion ("§ 2255 motion") to vacate, set aside, or correct his sentence, Doc. 24. On August 21, the Court requested that the Government respond. Doc. 25. On September 10, Petitioner filed the instant motion for leave to amend his § 2255 Motion, Doc. 26, after receiving certain information by mail. Petitioner seeks to add arguments that he should not have been sentenced as a career criminal and that the United States did not have jurisdiction over the location of his crime. Id. On September 21, 2015 the Government filed its Opposition to original § 2255 Motion. Doc 29. The Government did not address Petitioner's request for leave to amend in its Opposition or elsewhere in the record.
An amendment to a § 2255 motion that the Court has not yet ruled on is governed by Fed. R. Civ. P. 15(a). In re Morris, 363 F.3d 891, 893 (9th Cir. 2004). Rule 15(a)(2) provides that leave should be freely given "when justice so requires." "A district court may, however, take into consideration such factors as bad faith, undue delay, prejudice to the opposing party, futility of the amendment, and whether the party has previously amended his pleadings." Carter v. United States, No. 1:06-CR-00196-LJO, 2012 WL 6157637, at *4 (E.D. Cal. Dec. 11, 2012) (quoting In re Morris, 363 F.3d at 894). Here, there is no evidence of bad faith, nor undue delay or prejudice. Finally, Petitioner has not previously amended his § 2255 motion. Thus, his motion for leave to amend is GRANTED.
Upon review of the operative motion, Doc. 27, the Court believes its decision-making would be aided by the filing of a response/ opposition by the Government that addresses Petitioner's new allegations. Petitioner will be authorized to file a reply.
I. CONCLUSION AND ORDER
For the reasons discussed above, the Court GRANTS Petitioner's Motion for Leave to Amend, Doc. 26. The United States shall have 30 days from the date of entry of this order to file any opposition. Should Petitioner wish to file a reply, it shall be due 15 days after the government's deadline, or 45 days from the date of entry of this order, whichever is later. IT IS SO ORDERED.
Dated: October 13 , 2015
/s/ Lawrence J. O'Neill
UNITED STATES DISTRICT JUDGE