Chambers v. Secretary, Department of Corrections , 397 F. App'x 520 ( 2010 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 09-15826 ELEVENTH CIRCUIT
Non-Argument Calendar SEPTEMBER 13, 2010
________________________ JOHN LEY
CLERK
D. C. Docket No. 08-00176-CV-T-17-EAJ
PATRICK A. CHAMBERS,
Petitioner-Appellant,
versus
SECRETARY, DEPARTMENT OF CORRECTIONS,
ATTORNEY GENERAL, STATE OF FLORIDA,
Respondents-Appellees.
________________________
Appeal from the United States District Court
for the Middle District of Florida
________________________
(September 13, 2010)
Before TJOFLAT, MARTIN and ANDERSON, Circuit Judges.
PER CURIAM:
Petitioner appeals the district court’s denial of his pro se 28 U.S.C. § 2254petition for habeas corpus relief. We issued a certificate of appealability on one
issue:
Whether the district court erred in declining to address the additional
[sixth] ground of relief, first mentioned in a reply brief, without sua
sponte affording [petitioner] an opportunity to properly present the
constitutional claim.
We consider petitioner’s reference to his sixth ground of relief in his reply
brief not as an attempt to raise it in the brief, but as an indication that petitioner
believed that he had raised it in his § 2254 petition on page 11B. The district court
apparently did not consider the reference as such. If the court had construed the
reference as petitioner’s request for leave to amend the petition, we are satisfied
that the court would have granted leave. A “court should freely give leave to
amend when justice so requires, and leave should not be denied absent a
substantial reason. Fed. R. Civ. P. 15(a); Espy v. Wainwright, 734 F. 2d 748, 750
(11th Cir. 1984). There was no reason—such as undue delay or bad faith on
petitioner’s part—to deny leave here.
To the end that we may avoid having to consider this case more than once
on appeal, see generally Clisby v. Jones, 960 F.2d 925 (11th Cir. 1992) (en banc),
we vacate the district court’s judgment and remand the case with the instruction
that the district court entertain the sixth ground for relief referred to in petitioner’s
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reply brief.
VACATED and REMANDED, with instruction.
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