United States v. Isaac ( 1998 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 98-40312
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellant,
versus
CHARLES TIMOTHY ISAAC,
Defendant-Appellee.
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Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 1-96-CV-187
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November 12, 1998
Before DAVIS, DUHE’, and PARKER, Circuit Judges.
PER CURIAM:*
On June 7, 1993, Charles Timothy Isaac (Isaac), federal
prisoner #04252--078, pleaded guilty to using and carrying a
firearm during and in relation to a drug trafficking crime; and
possession of a firearm after being a convicted felon. 18 U.S.C.
§§ 924(c) and 922(g)(1). No appeal was filed from the conviction
and sentence.
On March 12, 1996, Isaac filed a motion pursuant to 28
U.S.C. § 2255, essentially arguing that his guilty plea and
sentence were obtained prior to the Supreme Court’s ruling in
*
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that this opinion should not be published and is not precedent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. 98-40312
-2-
Bailey v. United States, 516 U.S. 137 (1995). Isaac contended
that the Bailey decision decriminalized the conduct for which he
was convicted and sentenced. The Government filed its response
on June 11, 1996. On July 1, 1996, Isaac filed objections to the
Government’s response. In this objection, he introduced several
new issues that had not been raised in the initial § 2255 motion.
Among the new issues raised by Isaac was an assertion of
ineffective assistance of counsel. Isaac alleged that he
requested his attorney to file an appeal from the conviction and
sentence, but that his attorney failed to do so. Other than
Isaac’s arguments, the record is silent on this issue.
The district court never addressed the new issues raised by
Isaac. On December 8, 1997, a United States magistrate judge
entered a report and recommendation that was adopted by the
district court. The magistrate judge’s report only addressed the
Bailey argument, and did not discuss any of the other issues
raised in Isaac’s objection.
Isaac’s objections filed on July 1, 1996, subsequent to the
Government’s responsive pleading, should have been construed as a
motion to amend his pleading. See Ganther v. Ingle, 75 F.3d 207,
211-12 (5th Cir. 1996).
Amendment to a pleading should be liberally allowed, but the
decision whether to permit an amendment after responsive
pleadings have been filed is within the discretion of the
district court. Duff-Smith v. Collins, 973 F.2d 1175, 1180 (5th
Cir. 1992). The decision to deny leave to amend is reviewed on
appeal for abuse of discretion. Id. In this case, the district
No. 98-40312
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court did not rule on the motion; therefore, there is no decision
to review.
The case should be remanded to the district court, at which
time the district court shall rule on Isaac’s July 1, 1996,
motion to amend his § 2255 pleading. We decline to address
Isaac’s other issues at this time in the event the proceedings
below culminate in an out-of-time appeal. See Mack v. Smith, 659
F.2d 23, 25-26 (1981). We neither express nor intimate any view
as to whether, if Isaac is permitted to amend his pleadings, he
can prove the resultant claims made.
VACATED AND REMANDED.