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IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF IOWA

WESTERN DIVISION

SIDNEY CHARLES,

Petitioner,

No. C 12-4068-MWB

vs.

UNITED STATES OF AMERICA,

Respondent.

MEMORANDUM OPINION AND

ORDER REGARDING

RESPONDENT’S MOTION TO
DISMISS PETITIONER’S § 2255

MOTION

____________________

On July 13, 2012, petitioner Sidney Charles filed a Pro Se Motion Under 28 U.S.C.

§ 2255 To Vacate, Set Aside, Or Correct Sentence By A Person In Federal Custody

(§ 2255 Motion) (docket no. 1). In his § 2255 Motion, Charles asserts a claim regarding

application of the Career Offender and Fair Sentencing Act; a claim related to drug

quantity; and a claim relating to his “mental capacity.” This matter comes before me on

the respondent’s September 10, 2012, Motion To Dismiss Petitioner’s Motion under 28

U.S.C. § 2255 To Vacate, Set Aside, Or Correct Sentence By A Person In Federal

Custody (docket no. 3).

In its Motion To Dismiss, the respondent seeks dismissal of all of Charles’s claims

for habeas relief as procedurally defaulted. After the respondent filed its Motion To

Dismiss, I directed the Clerk of Court to appoint counsel to represent Charles and directed

Charles, with the aid of counsel, to respond to the respondent’s Motion To Dismiss by

November 1, 2012. See Order (docket no. 4). Eventually, after extensions of time to do

so, Charles, through counsel, filed, under seal, a Response To Motion To Dismiss

Petitioner’s Motion Under 28 U.S.C. § 2253 [sic] And Amended Motion (docket no. 21),

Case 5:12-cv-04068-MWB Document 28 Filed 07/30/13 Page 1 of 6

on March 21, 2013. In that Response, Charles agrees with the respondent that two of his

claims—his claim regarding application of the Career Offender and Fair Sentencing Act

and his claim related to drug quantity—are procedurally defaulted, but he asserts that

“[t]he issue of mental capacity is the gravamen of an allegation of ineffective assistance

of counsel, an allegation providing ‘cause and prejudice’” to avoid procedural default of

the “mental capacity” claim. Response at 1, ¶¶ 3-4. In his accompanying brief, Charles

appears to assert that his “mental capacity” claim is now amended to assert ineffective

assistance of counsel in failing to pursue the “mental capacity” issue, so that procedural

default of that claim is overcome and that claim survives the respondent’s Motion To

Dismiss. Charles did not then, nor has he since, expressly requested permission to amend,

other than a somewhat obscure reference to “Amended Motion” in the caption of his

Response, nor has he offered a proposed Amended Motion Under 28 U.S.C. § 2255 To

Vacate, Set Aside, Or Correct Sentence By A Person In Federal Custody. He did,

however, append to his Response numerous exhibits that he contends support of his

“mental capacity” claim.

In a Reply (docket no. 24), filed May 1, 2013, the respondent asserts that, until

Charles filed his Response, there was no hint that his “mental capacity” claim was, in any

sense, a claim of ineffective assistance of counsel, and that any motion to amend the

§ 2255 Motion as a matter of course in Charles’s Response was untimely, because it was

not filed within 21 days of the respondent’s Motion To Dismiss, as required by Rule 15

of the Federal Rules of Civil Procedure. The respondent also argues that it did not consent

to such an amendment and that the court did not authorize such an amendment. In a

Rejoinder (docket no. 25), filed May 2, 2013, without authorization under any applicable

rule or by order of the court, Charles asserts that his request to amend his § 2255 Motion

was timely, by virtue of the original deadline set by the court for his response to the

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respondent’s Motion To Dismiss, the extensions of his deadlines to respond to the

respondent’s Motion To Dismiss, and the respondent’s agreement to such extensions.

Moreover, he argues that, because the respondent agreed to the extensions, the respondent

is estopped to challenge the timeliness of the amendment. Charles’s counsel also asserts

that he has acted in good faith. In a Reply To Petitioner’s Rejoinder (docket no. 26), filed

on May 3, 2013, also without authorization under any applicable rule or by order of the

court, the respondent argues that there was no implicit extension of Charles’s deadline to

seek leave to amend by orders setting or extending a deadline for his response to a motion

to dismiss or by the respondent’s agreement to such extensions, and that Charles’s

counsel’s attempt to amend Charles’s § 2255 Motion is not in good faith.

Section 2255 proceedings are civil in nature and, therefore, governed by the Federal

Rules of Civil Procedure. See, e.g., Mandacina v. United States, 328 F.3d 995, 1000 &

n. 3 (8th Cir.), cert. denied, 540 U.S. 1018 (2003). Rule 12(b)(6) of the Federal Rules

of Civil Procedure authorizes a pre-answer motion to dismiss for “failure to state a claim

upon which relief can be granted.” FED. R. CIV. P. 12(b)(6). Furthermore, “[w]here a

defendant has procedurally defaulted a claim by failing to raise it on direct review, the

claim may be raised in habeas only if the defendant can first demonstrate either cause and

actual prejudice, or that he is actually innocent.” Bousley v. United States, 523 U.S. 614,

622 (1998) (internal quotations and citations omitted). Thus, procedurally defaulted claims

fail to state claims for § 2255 relief on which relief can be granted and may be dismissed

pursuant to Rule 12(b)(6).

Here, Charles, through counsel, concedes that two of his § 2255 claims—a claim

regarding application of the Career Offender and Fair Sentencing Act and a claim related

to drug quantity—are procedurally defaulted. Therefore, he concedes, and I conclude, that

the respondent is entitled to dismissal of those claims. In contrast, Charles argues, through

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counsel, that his “mental capacity” claim can evade procedural default because the

gravamen of that claim is ineffective assistance of counsel, which provides “cause and

prejudice” for the procedural default of that claim and allows that claim to be considered

on the merits.

Charles is correct that “cause and prejudice” to resuscitate a procedurally defaulted

claim may include ineffective assistance of counsel, as defined by the Strickland test.

Theus v. United States, 611 F.3d 441, 449 (8th Cir. 2010). Furthermore, Rule 15 of the

Federal Rules of Civil Procedure governs motions to amend § 2255 motions, if the motion

to amend is filed before judgment is entered. See United States v. Harrison, 469 F.3d

1216, 1217 (8th Cir. 2006). Under Rule 15, as recently amended, a claimant may amend

a pleading as a matter of course within 21 days after the service of a responsive pleading,

but thereafter may amend only with the opposing party’s written consent or leave of the

court. FED. R. CIV. P. 15(a)(1) & (2). The rule also states, “The court shall freely give

leave when justice so requires.” FED. R. CIV. P. 15(a)(2). Thus, if Charles has amended

his “mental capacity” claim in such a way that “ineffective assistance of counsel” allows

him to evade procedural default of that claim, that claim may state a claim upon which

relief can be granted.

The respondent’s only challenges to Charles’s attempts to amend, so far, are that

Charles’s proposed amendment to assert his “mental capacity” claim as an “ineffective

assistance” claim was offered too late to be an amendment as a matter of course, that the

respondent did not consent to the amendment, and that I did not grant leave for the

amendment. I find untenable Charles’s contentions that either I implicitly granted him or

his counsel extensions of time to amend his § 2255 Motion as a matter of course or that

respondent’s counsel agreed to such extensions simply by agreeing to or granting

extensions of his time to respond to the respondent’s Motion to Dismiss. Thus, the

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respondent is correct as to the procedural basis for its challenges to the amendment of the

“mental capacity” claim. On the other hand, Charles’s Response could also be construed

as an inartful—and incomplete—request for leave to amend the “mental capacity” claim

to include allegations of “ineffective assistance of counsel.” The respondent overlooks the

standards for granting leave to amend—requiring that leave to amend be granted

“freely . . . when justice so requires,” FED. R. CIV. P. 15(a)(2)—just as Charles’s counsel

apparently overlooked the requirements for seeking leave to amend and proffering a

proposed amendment.

Under the circumstances presented here, I believe that justice requires that I grant

Charles leave to amend his § 2255 Motion to reformulate his “mental capacity” claim as

an “ineffective assistance” claim, which was clearly what his counsel was attempting to

do, albeit inartfully. FED. R. CIV. P. 15(a)(2). Such an amendment will be open to

challenge, however, on any grounds, including failure to state a claim upon which relief

can be granted and failure to relate back to the timely filing of the original “mental

capacity” claim. See FED. R. CIV. P. 15(c); see also Johnson v. United States, 860 F.

Supp. 2d 663, 706-23 (N.D. Iowa 2012) (stating and applying the Rule 15 standards for
“relation back” to amended claims by a § 2255 petitioner).1

THEREFORE,

1.

The respondent’s September 10, 2012, Motion To Dismiss Petitioner’s

Motion under 28 U.S.C. § 2255 To Vacate, Set Aside, Or Correct Sentence By A Person

In Federal Custody (docket no. 3) is granted in part and denied in part, as follows:

1I decline to consider the “relation back” issue sua sponte, although it may render
any amendment futile, where the parties have not considered or briefed “relation back” or
any other “futility” issues.

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a.

The Motion To Dismiss is granted as to petitioner Charles’s claim

regarding application of the Career Offender and Fair Sentencing Act and his claim

related to drug quantity, as those claims are procedurally defaulted; but

b.

The Motion To Dismiss is denied as to Charles’s “mental capacity”

claim.

2.

Charles shall have to and including August 13, 2013, within which to file

an Amended § 2255 Motion asserting his “mental capacity” claim in amended form as an

“ineffective assistance of counsel claim” or a claim for which any procedural default is

excused by “ineffective assistance of counsel.”

3.

The respondent shall have to and including September 3, 2013, within

which to file an answer in accordance with Rule 5(b) of the Rules Governing Section 2255

Proceedings or an appropriate motion under Rule 12 of the Federal Rules of Civil

Procedure. See Rule 4(b) of the Rules Governing Section 2255 Proceedings.

IT IS SO ORDERED.

DATED this 30th day of July, 2013.

__________________________________
MARK W. BENNETT
U. S. DISTRICT COURT JUDGE
NORTHERN DISTRICT OF IOWA

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