United States v. Graham ( 1999 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
No. 98-7643
CLEO GRAHAM, a/k/a Shawn, a/k/a
Derwick LaVelle Graham,
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of North Carolina, at Charlotte.
Graham C. Mullen, Chief District Judge.
(CR-96-44, CA-98-419-3-3-MU)
Submitted: July 27, 1999
Decided: August 10, 1999
Before ERVIN and MOTZ, Circuit Judges, and PHILLIPS,
Senior Circuit Judge.
_________________________________________________________________
Vacated and remanded by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
Cleo Graham, Appellant Pro Se. Robert Jack Higdon, Jr., OFFICE OF
THE UNITED STATES ATTORNEY, Charlotte, North Carolina, for
Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
Cleo Graham appeals the district court's order denying his motion
to amend his 28 U.S.C.A. § 2255 (West Supp. 1999) motion. We
vacate and remand.
Graham was convicted in 1997 of conspiracy to possess with intent
to distribute cocaine base. He filed his § 2255 motion on September
21, 1998, claiming ineffective assistance of counsel. On September
30, the district court sua sponte issued an order denying Graham's
claim on the merits. Graham moved on October 16 to amend his
§ 2255 motion to add a claim that counsel was ineffective for failing
to note an appeal after he was sentenced. On October 22, the district
court entered judgment in accordance with the September 30 order.
On October 26, the court denied Graham's motion to amend, which
the court construed as a successive § 2255 motion. The court con-
cluded that Graham had to obtain this court's authorization to file
such a motion. Graham timely appeals the denial of his motion to
amend.
"A party may amend the party's pleading once as a matter of
course at any time before a responsive pleading is served." Fed. R.
Civ. P. 15(a). Rule 15(a) applies to § 2255 motions. See United States
v. Duffus, 174 F.3d 333, 336 (3d Cir. 1999); United States v.
Cervantes, 132 F.3d 1106, 1111 (5th Cir. 1998). We review the denial
of a motion to amend for abuse of discretion. See United States v.
Craycraft, 167 F.3d 451, 457 n.6 (8th Cir. 1999).
Here, no responsive pleading was filed; the district court
announced its decision less than ten days after Graham filed his §
2255 motion. Prior to entry of judgment, Graham moved to amend his
§ 2255 motion to add an additional claim. See Lone Star Motor
Import, Inc. v. Citroen Cars Corp., 288 F.2d 69, 74-77 (5th Cir. 1961)
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(permitting amendment of pleading after announcement of decision
but before entry of judgment). There is no suggestion in this case of
undue delay, bad faith, prejudice to the United States, or futility of the
proposed amendment. See Foman v. Davis, 371 U.S. 178, 182 (1962).
Further, the consequences of upholding the denial of the motion to
amend would be particularly harsh because appellate courts may
authorize second or successive § 2255 motions only in very limited
circumstances. See 28 U.S.C.A. §§ 2244, 2255 (West Supp. 1999).
We therefore grant a certificate of appealability and vacate the
decision of the district court denying the motion to amend. The matter
is remanded with directions that the court reopen its judgment deny-
ing Graham's § 2255 motion and permit Graham to amend that
motion to include his additional claim of ineffective assistance of
counsel. We dispense with oral argument because the facts and legal
arguments are adequately presented in the materials before the court
and argument would not aid the decisional process.
VACATED AND REMANDED
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