U.S. v. LEWIS, 3:08-cr-175 (2012)
Court: District Court, S.D. Ohio
Number: infdco20120131b82
Visitors: 22
Filed: Jan. 30, 2012
Latest Update: Jan. 30, 2012
Summary: DECISION AND ORDER DENYING THIRD MOTION TO AMEND MICHAEL R. MERZ, Magistrate Judge. This case is before the Court on Defendant's Third Motion for Leave to Amend in which he seeks to add a claim of ineffective assistance of appellate counsel for failure to file a timely direct appeal (Doc. No. 151). Final judgment was entered in this 2255 case on August 26, 2011 (Doc. No. 127). Defendant has taken an appeal from that judgment (Notice of Appeal, Doc. No. 135). Before this Court could allow a
Summary: DECISION AND ORDER DENYING THIRD MOTION TO AMEND MICHAEL R. MERZ, Magistrate Judge. This case is before the Court on Defendant's Third Motion for Leave to Amend in which he seeks to add a claim of ineffective assistance of appellate counsel for failure to file a timely direct appeal (Doc. No. 151). Final judgment was entered in this 2255 case on August 26, 2011 (Doc. No. 127). Defendant has taken an appeal from that judgment (Notice of Appeal, Doc. No. 135). Before this Court could allow am..
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DECISION AND ORDER DENYING THIRD MOTION TO AMEND
MICHAEL R. MERZ, Magistrate Judge.
This case is before the Court on Defendant's Third Motion for Leave to Amend in which he seeks to add a claim of ineffective assistance of appellate counsel for failure to file a timely direct appeal (Doc. No. 151).
Final judgment was entered in this § 2255 case on August 26, 2011 (Doc. No. 127). Defendant has taken an appeal from that judgment (Notice of Appeal, Doc. No. 135). Before this Court could allow amendment of the Motion to Vacate, it would have to reopen the judgment, relief which Defendant has not sought and which this Court cannot grant while the appeal is pending. But adding a new ground to a § 2255 motion to vacate by filing for relief from judgment is the legal equivalent of filing a second or successive motion to vacate. That cannot be done without the prior approval of the Court of Appeals because 28 U.S.C. § 2255(b) requires that approval.
Accordingly, Defendant's Third Motion for Leave to Amend is denied.
Source: Leagle
