United States v. Rice ( 1999 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 99-20751
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
RODERICK ANTHONY RICE,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC Nos. H-99-CV-1297, H-96-CR-27-1
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December 27, 1999
Before SMITH, BARKSDALE, and PARKER, Circuit Judges.
PER CURIAM:*
Roderick Rice (federal prisoner #70997-079) has applied for
a certificate of appealability (COA) to appeal the district
court’s dismissal of his 28 U.S.C. § 2255 motion under Rule 4(b)
of the Rules Governing § 2255 Proceedings. In his § 2255 motion,
Rice alleged, among other things, that his guilty plea was
involuntary. He also filed a motion requesting leave to amend
his § 2255 motion within 90 days. Because Rice’s guilty-plea
hearing had not yet been transcribed, it was not plain from the
face of his § 2255 motion and the record that he was “not
entitled to relief in the district court.” See Rule 4(b) of the
*
Pursuant to 5TH CIR. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
No. 99-20751
-2-
Rules Governing Section 2255 Proceedings. Moreover, because the
Government had not yet filed a responsive pleading in the case,
Rice was entitled to amend his § 2255 motion “once as a matter of
course.” See Fed. R. Civ. P. 15(a).
Rice has made a credible showing that the district court
erred in summarily dismissing his § 2255 motion under Rule 4(b)
without first affording him an opportunity to amend. See Murphy
v. Johnson, 110 F.3d 10, 11 (5th Cir. 1997); see also Pena v.
United States, 157 F.3d 984, 987 & n.3 (5th Cir. 1998)(stating
that a district court generally errs is dismissing or denying a
pro se party’s pleadings without affording the party an
opportunity to amend). Accordingly, we GRANT Rice’s COA
application, VACATE the district court’s order of dismissal, and
REMAND the case to the district court for further proceedings
consistent with this opinion. See Dickinson v. Wainwright, 626
F.2d 1184, 1186 (5th Cir. Unit B 1980).
COA GRANTED; VACATED AND REMANDED.