2007 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

12-13-2007

USA v. Fontanez

Precedential or Non-Precedential: Non-Precedential

Docket No. 98-1920

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Recommended Citation

"USA v. Fontanez" (2007). 2007 Decisions. Paper 66.

http://digitalcommons.law.villanova.edu/thirdcircuit_2007/66
NOT PRECEDENTIAL

IN THE UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

 

NO. 98-1920

 

 UNITED STATES OF AMERICA

v.

AUDELIZ FONTANEZ,

a/k/a ALEX FONTANEZ,

a/k/a ALEX POLLOCK FONTANEZ

Audeliz Fontanez

Appellant

 

On Appeal From the United States District Court

For the Eastern District of Pennsylvania 

(D.C. Crim. Action No. 96-cr-00086-1)

District Judge: Hon. Clarence C. Newcomer

 

Submitted Pursuant to Third Circuit LAR 34.1(a)

December 11, 2007

BEFORE: RENDELL and STAPLETON, 

Circuit Judges, and IRENAS, District Judge*

(Opinion Filed: December 13, 2007)

 

 

*Hon. Joseph E. Irenas, Senior District Judge for the District of New Jersey, sitting by

designation.
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OPINION OF THE COURT

 

STAPLETON, Circuit Judge:

We have before us only No. 98-1920. On January 30, 2002, we issued a

Certificate of Appealability. It limited proceedings to the following:

“whether the District Court abused its discretion in failing to allow

Petitioner to amend his 28 U.S.C. Section 2255 motion. In addition . . . the

parties should address (a) when, in light of the withdrawal and subsequent

reinstatement of the direct appeal, did Petitioner’s ‘judgment of conviction

become [] final’ for purposes of the statute of limitations; and (b) whether

Petitioner’s motion to amend was timely.” 

 The motion to amend referred to in the Certificate of Appealability is the motion

filed August 27, 1998. In that motion, Fontanez said only the following with respect to

the issues he sought to place before the Court by amendment:

“There are significant issues that have not been raised by counsel, of record,

in the instant petition which petitioner Fontanez vehemently believes will

conclusively support the ‘ineffective-assistance-of-counsel’ claim and will

further support a vacation of the Judgment of Conviction insofaras (sic) the

verdict was rendered on evidence that was unconstitutionally sound.

***

Petitioner Fontanez’s most significant issue that must be posited before this

Court is ‘actual innocence’ and counsel has failed to raise same, with

support of evidence that has not been presented before to this Court in

previous proceeding(s).”

On October 6, 2004 we denied a motion to expand the Certificate of Appealability

in No. 98-1920. We ruled at that time that Fontanez’s “new perjury claims [were] beyond 
 1

Fontanez’s counsel, in his Anders brief, does not address when petitioner’s judgment

of conviction became final. Fontanez, in his supplemental brief in response to counsel’s

Anders brief, asserts that his judgment of conviction became final on October 19, 2001,

while the United States asserts that petitioner’s conviction became final on November 29,

2001. Neither addresses whether the 1998 motion was timely. We see no value in

pursuing that question further because we find that the District Court did not abuse its

discretion in denying that motion.

3

the scope of this appeal” and that these “perjury claims had not been raised in the [District

Court] at the time of the 98-1920 appeal.” The issue before us thus has nothing to do

with the perjury claims Fontanez currently seeks to pursue. Rather, the sole issue before

us is whether the District Court abused its discretion in not granting permission to amend

in response to Fontanez’s August 27, 1998 filing. We hold that it did not.

While Fed. R. Civ. P. 15 provides that leave to amend “shall be freely granted

when justice so requires,” one seeking to amend must provide the Court with sufficient

information to allow it to determine whether justice does so require. The Court, for

example, must be able to determine such matters as whether the amendment sought would

be futile or unduly prejudicial to the opponent. When the application to amend provides

only conclusory statements like the “evidence . . . was unconstitutionally sound” and

“actual innocence,” the Court is not able to fulfill its responsibilities under Fed. R. Civ. P.

15, and it does not abuse its discretion if it denies the application.1

The judgment of the District Court will be affirmed.