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. e du/thir dc ir c uit_2000/158Filed August 1, 2000

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 98-3460

UNITED STATES OF AMERICA,

Appellee

v.

LEROY THOMAS, a/k/a Sheeba

Leroy Thomas,

Appellant

ON APPEAL FROM THE

UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

D.C. Crim. No.: 95-cr-00068-3 District Judge: Honorable William L. Standish

Argued: April 26, 2000

Before: BECKER, Chief Judge, BARRY, and BRIGHT,* Circuit Judges

(Opinion Filed: August 1, 2000)

___________________________________________________ ______________ * The Honorable Myron H. Bright, United States Circ uit Judge for the Eighth Circuit, sitting by designation.David R. Fine, Esq. (Argued)

Robert L. Byer, Esq. James T. Tallman, Esq. Kirkpatrick & Lockhart, L.L.P. 1500 Oliver Building Pittsburgh, Pennsylvania 15222

Attorneys for Appellant

Bonnie R. Schleuter (Argued) Assistant United States Attorney United States Attorney's Office Western District of Pennsylvania
633 U.S. Post Office and Courthouse Pittsburgh, Pennsylvania 15219

Attorney for Appellee

OPINION OF THE COURT

BARRY, Circuit Judge:

This appeal requires us to decide whether the relat ion back of amendments provision of Rule 15 of the Fede ral Rules of Civil Procedure ("Fed. R. Civ. P.") is con sistent with 28 U.S.C. S 2255 and the rules governing S 2255 proceedings, such that an amendment to a timelyfile d S 2255 petition may relate back to the date of the petition after the expiration of the one-year period of limi tations prescribed by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). We hold that it can. Under F ed. R. Civ. P. 15(c), an amendment which, by way of additi onal facts, clarifies or amplifies a claim or theory in the petition may, in the District Court's discretion, relate bac k to the date of that petition if and only if the petition w as timely filed and the proposed amendment does not seek to a dd a new claim or to insert a new theory into the case. Accordingly, we will vacate the District Court's su mmary dismissal of Thomas's petition and will remand for the Court to determine whether petitioner's proposed

amendment does or does not relate back to the date of his petition.

2I.

The facts underlying this appeal are simply stated. In 1995, a jury in the Western District of Pennsylvani a found petitioner Leroy Thomas ("Thomas") guilty of conspi racy to
distribute cocaine and cocaine base in violation of 21
U.S.C. S 846. Thomas was sentenced to 135 months in prison to be followed by five years of supervised r elease. He appealed, and we affirmed his conviction and senten ce. The Supreme Court denied Thomas's petition for a writ o f certiorari on May 12, 1997.

Thomas, pro se, thereafter timely filed aS 2255 pet ition. The petition consisted of a standardized form provi ded by
the Clerk of the Court for the Western District of Pennsylvania which directs petitioners to:

(9) State concisely every ground on which yo u claim that you are being held unlawfully. CAUTION: If you fail to set forth all grounds in this motion , you may be barred from presenting additional grounds at a later date. You must allege facts in support of th e ground or grounds which you choose. A mere statement o f grounds without facts will be rejected.

(a) Grounds

(b) Supporting FACTS (Tell your story briefl y without citing cases or law).

App. at 8 (emphasis in original). Thomas completed the form and, in response to item 9(a), outlined a veri table laundry list of grounds in a two-page attachment. 1 In

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1. Thomas listed twenty-six separate grounds, but m isnumbered two, resulting in an undercount such that there appear t o be only twentyfour. Accordingly, in quoting the grounds in full b elow, we have labeled the erroneously double-counted issues as 8[A], 8[B] , 14[A] and 14[B]:

Issue Number 1: Defense counsel was ineffect ive in failing to argue
that the sentence and conviction were fruit from a poisonous tree and is[,] therefore[,] in violation of the F ourth Amendment of the
Constitution.

Issue Number 2: Counsel was ineffective in f ailing to argue that

the indictment was illegal because it was fruit from a poisonous tree.

Issue Number 3: Defense counsel was ineffect ive in failing to move
for dismissal of the indictment because it w as not brought about within 30 days from my arrest.3response to item 9(b), soliciting supporting facts, Thomas

wrote: "facts will be presented in a separate memor andum

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Issue Number 4: Defense counsel was ineffect ive in failing to file

a motion to dismiss the indictment where it wa s not signed by the foreperson of the grand jury and where it wa s not properly sealed.

Issue Number 5: Defense counsel was ineffect ive where he failed to request a mistrial when the prosecution prom ised to call witness

but failed to subsequently call such witness.

Issue Number 6: Defense counsel was ineffect ive in failing to call defense witnesses after he promised petition er that he would.

Issue Number 7: Defense counsel was ineffect ive in failing to advise[ ] petitioner that it was his right t o decide whether to testify
in his defense.

Issue Number 8[A]: The Government violated t he Jencks and Brady Act by failing to turn over certain statemen ts of its witness[es]

after [they] testified.

Issue Number 8[B]: The prosecution committed serious misconduct by misrepresenting and defrauding the court and defense.

Issue Number 9: The government committed pro secutorial misconduct in the closing argument.

Issue Number 10: Defense counsel was ineffec tive in failing to

argue before the court that the sole government [w itness] before the grand jury committed perjury which was material to the matter at hand.

Issue Number 11: The prosecution committed m isconduct at trial by presenting perjur[ed] testimonies of its wit nesses:

1. Troy Saunders

2. Benjamin Day

3. Larry Humphries

4. Edward Shied

Issue Number 12: Defense counsel was ineffec tive in failing to[object to] the introduction of the guns all egedly found in

apartment next door to petitioner.

Issue Number 13: The prosecution committed m isconduct by advising defense counsel that it will not be introducing guns into trial and then by turning around and introdu cing the same weapons
into evidence.

Issue Number 14[A]: The prosecution violated Rule 16 of the Discovery Rule by failing to advise the defe nse of the evidence it
intended to introduce as its case-in-chief a t trial.

4of law in support of petition." On May 6, 1998, one day

after mailing his S 2255 petition and six days prio r to the expiration of the AEDPA's one-year period of limita tions,
Thomas filed a "Motion to Hold 2255 Petition in Abe yance until Petitioner Submits Memorandum of Law in Suppo rt of the Petition," which he represented would be submit ted within sixty to ninety days. He argued that he need ed additional time because the "issues are complicated
, requiring an extensive review" of the record and be cause his time was limited due to a prison work assignmen t.

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Issue Number 14[B]: Defense counsel was inef fective in failing to interview the prosecution witnesses before t rial.

Issue Number 15: Defense counsel was ineffec tive in failing to
interview defense witnesses.

Issue Number 16: The government failed to pr ove that the substance allegedly involved in the offense was crack as defined in the sentencing guidelines.

Issue Number 17: Defense counsel was ineffec tive in failing to appeal order denying probable cause motion.

Issue Number 18: Defense counsel was ineffec tive in failing to appeal the court's order denying petitioner' s motion to dismiss indictment based on perjured testimony.

Issue Number 19: Defense counsel was ineffec tive in failing to

argue on appeal that the evidence was insufficient as a matter of law.

Issue Number 20: Petitioner's sentence and c onviction is in
violation of double jeopardy and the due process claus e of the Constitution

of
the United States.

Issue Number 21: The government violated Bra dy by failing to
disclose to the defense that it had made dea ls with its witnesses.

Issue Number 22: Defense counsel was ineffec tive in failing to object to the variance between the evidence present ed to the grand jury and the evidence presented at trial.

Issue Number 23: Defense counsel was ineffec tive in not objecting

to
the Government's witnesses's in-court identi fication of petitioner.

Issue Number 24: Defense counsel was ineffec tive in failing toimpeach the prosecution's witnesses with the ir prior inconsistent

testimonies and statements.

5The government, in its response to the motion, cont ended

that Thomas's request for extra time and permission to file a memorandum of law constituted an impermissible en drun around the AEDPA's one-year period of limitatio ns. It maintained, as well, that the grounds set forth in Thomas's petition were vague, conclusory, and lacking in fac tual support and, therefore, were insufficient to entitl e him to any relief whatsoever. The District Court agreed, a nd on June 29, 1998 denied Thomas's request to file his p roposed
memorandum because it would constitute an amendment beyond the AEDPA's period of limitations and dismis sed the petition on the ground that it failed to set forth a cause of action as required by Rule 2 of the Federal Rules G overning S 2255 Proceedings. The Court stated:

Defendant has attached a two-page statement setting forth 24 issues which he alleges to be the g rounds for his motion. The statement of these issues, h owever, is entirely conclusory and details none of the supporting facts. As to the supporting facts, defendant alleges "facts will be presented in a separate Memor andum of Law in support of petition[.]" Were defendan t to file a memorandum setting forth the facts supportin g his grounds for the motion at the present time, or in the future, the memorandum would, in effect, ame nd defendant's motion in a material respect aft er the expiration of the one-year limitation period provided by
Section 2255.

Memorandum Order at 2-3.

Thomas filed a motion for reconsideration pursuant to Fed. R. Civ. P. 59, asserting that under Rule 15(c) 's provision allowing the relation back of amendments, the District Court should have permitted him to amend h is petition with a memorandum of law based on the same "conduct, transaction, or occurrence as alleged in the original complaint." The Court denied Thomas's moti on for reconsideration and subsequently denied his request for a certificate of appealability.

On September 17, 1999, this Court granted a certifi cate of appealability as to the following issues: (1) wh ether the District Court erred in determining that it lacked the

6discretion to accept petitioner's memorandum of law

because it would be filed out of time; and (2) whet her Rule
15 is inconsistent with 28 U.S.C. S 2255 and with t he rules governing S 2255 and is, therefore, inapplicable to S 2255 petitions. We also appointed counsel ("CJA Counsel" ) to represent petitioner, and they have ably done so bo th in their briefs and at oral argument. Simultaneously w ith the filing of their opening brief, CJA counsel moved to expand the scope of the certificate of appealability to in clude consideration of the factual sufficiency of Thomas' s petition. This Court granted the request, including in the certification: (1) whether the original S 2255 peti tion included sufficient facts to avoid summary dismissa l; and (2) whether, in light of the strict one-year time l imit imposed by the AEDPA, district courts confronted wi th S 2255 petitions which the courts deem to include t oo few facts should allow additional filings only for the purpose of clarifying and recording factual detail.

II.

The District Court had jurisdiction pursuant to 28 U.S.C. SS 2255 and 1331. We have jurisdiction under 28 U.S .C. S 1291. Typically, we would review a District Court 's order denying a motion to amend for abuse of discretion. See United States v. Duffus, 174 F.3d 333, 336 (3d Cir. 1999), cert. denied, 120 S.Ct. 163 (1999). Here, however, the
District Court did not exercise its discretion in d enying the amendment but, rather, apparently believed that it did not have the authority to apply Rule 15 to a S 2255 pet ition. The question of whether Rule 15 applies to S 2255 p etitions implicates the interpretation and application of le gal precepts; therefore, our standard of review is plen ary. See Cooney v. Fulcumer, 886 F.2d 41, 43 (3d Cir. 1989). We also exercise plenary review over the legal conclus ions which prompted the District Court to summarily dism iss Thomas's petition. See Rios v. Wiley, 201 F.3d 257, 262 (3d Cir. 2000).

A.

The Federal Rules of Civil Procedure apply to habea s corpus proceedings "to the extent that the practice in such

7proceedings is not set forth in statutes of the Uni ted States

and has heretofore conformed to the practice in civ il actions." Fed. R. Civ. P. 81(a)(2). In addition, th e rules governing S 2255 proceedings provide that:

If no procedure is specifically prescribed b y these rules, the district court may proceed in any lawful manner not inconsistent with these rules, or any ap plicable statute, and may apply the Federal Rules of Criminal
Procedure or the Federal Rules of Civil Proc edure, whichever it deems most appropriate, to moti onsfiled

under these rules.

Fed. R. S 2255 Proceedings 12 (emphasis added). Nei ther 28 U.S.C. S 2255 nor the rules governing S 2255 procee dings explicitly proscribes the relation back of amendmen ts. Rather, the statute and governing rules are silent.

The procedures applied to habeas petitions filed af ter April 24, 1996, the effective date of the AEDPA, an d, indeed, the very raison d'etre of the AEDPA itself do, however, present a potential inconsistency with the language and spirit of Rule 15(c). On the one hand, district courts maintain a liberal policy in non-habeas civi l proceedings of allowing amendments to correct a def ective pleading or to amplify an insufficiently stated cla im and relating those amendments back to the date of the o riginal filing when the amendments might otherwise have bee n barred by the applicable statute of limitations. On the other hand, Congress clearly intended to limit collateral attacks upon judgments obtained in federal criminal cases, an intent evidenced by the AEDPA's limitations period for filing petitions of one year from "the date on which the j udgment of conviction becomes final." 28 U.S.C. S 2255; see generally United States v. Miller, 197 F.3d 644, 65 1 (3d Cir. 1999). The government posits that the tension betwe en Rule 15(c) and the AEDPA requires us to hold that R ule 15(c) cannot apply to habeas proceedings in the sam e manner in which it applies to other civil proceedin gs. We disagree.

In United States v. Duffus, 174 F.3d 333 (3d Cir. 1 999), cert. denied, 120 S. Ct. 163 (1999), this Court add ressed the apparent inconsistency between Rule 15(a) and t he

8AEDPA. There, Duffus, proceeding pro se,filed a S 2 255

petition seeking relief from his federal conviction and sentence for various offenses, including conspiracy to distribute cocaine, RICO and money laundering. The petition was deemed timely because Duffus had filed it within the one-year grace period afforded petitione rs after the AEDPA's effective date. In the petition, Duffus asserted that his attorney had been ineffective in failing t o contend on appeal that the evidence against Duffus was insu fficient to convict him of money laundering and in failing t o object to the District Court's use of the sentencing guide lines in effect at the time of sentencing as opposed to thos e in effect at the time Duffus allegedly withdrew from the cons piracy. In addition, Duffus asserted that at sentencing the District Court had miscalculated the quantity of drugs attri butable
to him.

More than six months after filing his petition, and after the one year grace period accorded petitioners afte r AEDPA's effective date of April 24, 1996 had run, D uffus moved to amend the petition to add another ineffect ive assistance of counsel claim, this one arising from his attorney's alleged failure to move to suppress drug evidence. Adopting the Magistrate Judge's Report an d Recommendation, the District Court denied Duffus's motion to amend because of Duffus's delay in presenting th at claim and dismissed the petition without an evidentiary h earing.
The District Court had earlier allowed Duffus thirt y to sixty days to supplement his petition, but Duffus waited six months before seeking leave to amend. Additionally, he had had the benefit of the six years since his convicti on, the one-year grace period following the enactment of th e AEDPA, and the six months since the filing of his p etition. "There was nothing in [Duffus's] motion to amend," found the Court, "that could not have been included in th e original motion." Id. at 336.

On appeal, this Court noted that under Rule 15(a), a petitioner may amend his or her pleading once as a matter of course at any time before a responsive pleading is served.2

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2. Rule 15(a) states in relevant part:

9The government, however, had already filed a respon sive

pleading in Duffus's case. Therefore, Duffus could only amend his pleading "by leave of court which leave s hall be freely given when justice so requires." Id . at 337 (quoting Fed. R. Civ. P. 15(a)). We stated that leave to ame nd should be freely granted unless there is evidence of "undu e delay, bad faith or dilatory motive on the part of the mov ant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowing the amendment or futility of amendment." Id. (citing Foman v. Davis, 371 U.S. 17 8, 182 (1962)). Moreover, we noted that "ordinarily delay alone is not a basis to deny a motion to amend." Duffus, 174 F.3d at 337. Nevertheless, we affirmed the District Cour t's denial of Duffus's motion to amend in light of the "specia l situation" created by the AEDPA's one-year period o f limitations with its recognized grace period. Had t he District Court granted Duffus's motion to add a new claim, we reasoned, it would have "frustrated the intent o f Congress that claims under 28 U.S.C. S 2255 be adva nced within one year after a judgment of conviction beco mes final[.]" Id.

Duffus stated, however, albeit in dictum , that in certain circumstances, a district court could allow an amen dment to a S 2255 petition after the expiration of the on e-year period of limitations. Specifically, we noted that, while it would frustrate the intent of Congress to allow Duf fus to amend his petition by adding a "completely new" gro und for relief after the one-year period of limitations had run, "[c]ertainly the court could have permitted an amen dment

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(a) Amendments. A party may amend the party' s pleading once as a matter of course at any time before a resp onsive pleading is

served or, if the pleading is one to which no respo nsive pleading is permitted and the action has not been placed upon the trial calendar, the party may so amend it at any t ime within 20 days after it is served. Otherwise a party may am end the party's pleading only by leave of court or by written consent of the adverse party; and leave shall be freely given when justice so requires.

Fed. R. Civ. P. Rule 15(a).

10to clarify a claim initially made." Id. (emphasis a dded).

"[W]hile Duffus asserted in his initial motion that his attorney had been ineffective, the particular claim with respect to failing to move to suppress evidence was completely new. Thus, the amendment could not be de emed timely under the `relation back' provisions of Fed. R. Civ. P. 15(c)." Id. The facts of this case cause us to go w here Duffus did not have to go and to determine whether Duffus's dictum regarding the applicability of Rule 15(c) to a S 2255 petition should become the law of this Cir cuit.

The purpose of Rule 15 "is to provide maximum opportunity for each claim to be decided on its mer its rather than on procedural technicalities. This is demonstrated by the emphasis Rule 15 places on the permissive approach that the district courts are to take to amendment requests, no matter what their character may be[.]" 6 Charles Alan Wright & Arthur R. Miller, Fe deral Practice & Procedure S 1471 (2d ed. 1990)(2000 Supp .) (footnotes omitted) (hereinafter "Fed. Prac. & Proc ."). In the context of non-habeas civil proceedings, a party ma y not allege an entirely new claim by amendment after the expiration of the statute of limitations. A party m ay, however, attempt to raise and to relate back a new claim which would otherwise have been barred by the statu te of limitations as long as the claim "arose out of the conduct, transaction, or occurrence set forth . . . in the o riginal pleading." Fed. R. Civ. P. 15(c)(2).3 The one-year period of
limitations contained in the AEDPA is a statute of limitations like any other statute of limitations i n a civil proceeding. See Kapral v. United States, 166 F.3d 5 65, 567

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3. Rule 15(c) provides in relevant part:

(c) Relation Back of Amendments. An amendmen t of a pleading relates back to the date of the original ple ading when

(1) relation back is permitted by the law t hat provides the

statute of limitations applicable to the action, or

(2) the claim or defense asserted in the am end ed pleading arose out of the conduct, transaction, or occurren ce set forth or attempted to be set forth in the original pleading[.]

Fed. R. Civ. P. Rule 15(c).

11(3d Cir. 1999). And Duffus teaches that, as in non- habeas

civil proceedings, a party cannot amend a S 2255 pe tition to add a completely new claim after the statute of lim itations has expired. Here, we are dealing with yet another type of amendment: one which, if we take Thomas at his word
, merely seeks to correct a pleading deficiency by ex panding the facts but not the claims alleged in the petitio n.4 An amendment for that purpose would clearly fall withi n Rule 15(c). See 6 Fed. Prac. & Proc.S 1474.

A S 2255 petition provides a federal prisoner the opportunity to seek one full collateral review of h is or her conviction and sentence. While we certainly do not suggest that a prisoner can willy nilly file papers at his or her whim, to eliminate or to compromise what will likel y be a prisoner's only opportunity to collaterally challen ge a sentence by refusing to even consider whether a pro posed amendment relates back to his or her petition would be to elevate procedural rules over substance. Thus, we h old that Rule 15(c)(2) applies to S 2255 petitions insofar a s a District Court may, in its discretion, permit an amendment t o a petition to provide factual clarification or amplif ication after the expiration of the one-year period of limitation s, as long as the petition itself was timely filed and the pet itioner does

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4. Although we do not know precisely what Thomas wo uld have set forth in the memorandum he sought to submit, it is probab ly fair to say, as he said, that he intended to amplify his twenty-six grounds with additional facts. See App. at 8 ("facts will be pre sented in a separate memorandum of law in support of petition"). Because he has not declared an intention to raise a new claim, we need not reach the issue of whether a new claim would be proscribed if that claim "arose out of the conduct, transaction, or occurrence set forth o r attempted to be set forth in the original pleading." Rule 15(c)(2). We note, however, that at least two other circuits have applied Rule 15(c)(2) 's "conduct, transaction, or occurrence" test to cases in which S 2255 petitioners sought to add new claims to their original petition s after the expiration
of the statute of limitations. See United States v. Pittman, 209 F.3d 314, 317 (4th Cir. 2000)(applying Rule 15(c)(2) and affi rming denial of permission to amend because proposed amendment aros e from separate occurrence); United States v. Craycraft, 167 F.3d 4 51, 457 (8th Cir. 1999)(applying Rule 15(c)(2) and affirming denial o f permission to amend because proposed claim was "distinctly separate" fr om claims already pled).

12not seek to add an entirely new claim or new theory of

relief.

The District Court's denial of Thomas's request tof ile a memorandum of law and its dismissal of his petition predated our ruling in Duffus. We assume that the Dist rict Court, without Duffus's guidance, was operating und er the erroneous impression that it did not have the autho rity under Rule 15 to allow an amendment to a habeas pet ition. As a result, the Court did not seek to determine wh ether
Thomas would have advanced a new claim or new theor y or whether he was merely seeking to add meat to the ba re bones of the numerous grounds he listed in his peti tion.

In any event, post-Duffus, it is clear that a Distr ict Court does have the authority under Rule 15(a) to conside r a motion to amend a habeas petition and, post-Thomas, to consider whether the proposed amendment relates bac k to the filing date of the petition after the expiratio n of the statute of limitations. Whether Thomas's proposed amendment should be permitted to relate back to the date of his petition is a question for the District Cour t to
consider on remand.5

B.

Prior to oral argument, this Court enlarged the sco pe of the certificate of appealability to include the iss ue of whether Thomas's S 2255 petition pled sufficient fa cts to avoid summary dismissal.6 This is a question of som e

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5. The government argues that remand would be futil e because it is inevitable that the District Court will deny Thomas permission to amend. This argument is based on the government's assumpti on that Thomas's

stated reason for the amendment -- the need for mor e time -- is inadequate because he had sufficient time to famili arize himself with the facts of his own case. We express no opinion on the adequacy or inadequacy of Thomas's reason for requesting an ext ension of time, but we disagree that the District Court need not addres s the issue.

6. CJA Counsel argue that the form distributed to h abeas petitioners by
the Clerk of the Court for the Western District of Pennsylvania should be changed. Counsels' point is well-taken. The form in structs petitioners to "[s]tate concisely every ground," to "allege facts in support of the ground

13significance because were we to find that none of t he

grounds alleged in the petition would entitle Thoma s to relief, the petition would be subject to summary di smissal. See Fed. R. S 2255 Proceedings 4(b). 7 Indeed, we h ave previously held that vague and conclusory allegatio ns

___________________________________________________ ______________

or grounds," and to "[t]ell your story briefly". Ap p. at 8 (emphasis in original). These directives, which emphasize brevit y, may well place a petitioner in a "Catch-22" situation, wherein he or she may strive to meet that requirement at the risk of summary dismis sal for failure to plead sufficient grounds or facts. Moreover, this f orm resembles the Model form contained in the habeas rules, a form wh ich has not been changed since 1982. Prior to the AEDPA, a petitione r whose factual allegations were too brief had the opportunity to c ome back in without bumping up against a statute of limitations. Accord ingly, we recommend
that the district courts amend their forms in the f ollowing ways. First, the form might encourage petitioners to specificall y plead facts
sufficient to support their claims. Second, the form might war n petitioners that, due to the AEDPA's period of limitations, they may not have the opportunity to amend their petitions at a later dat e. Further, the form could perhaps instruct petitioners that while an am endment to clarify or to offer further factual support may be permitted a t the discretion of the District Court, an amendment which seeks to introdu ce a new claim or a new theory into the case will not be permitted af ter the statute of limitations has expired.

These types of amendments to the standard habeas fo rms would be in keeping with this Court's recognition in United Sta tes v. Miller, 192 F.3d 644, 649 (3d Cir. 1999), that the AEDPA has "dramat ically altered" the nature of federal habeas proceedings. They would al so be in keeping with the prophylactic rule announced in Miller, see id. at 646, which was aimed both at promoting judicial efficiency in thes e proceedings, and insuring that federal habeas petitioners fairly hav e their one chance to obtain collateral relief, see id. at 651.

7. Rule 4(b) states, in relevant part:

The motion, together with all the files, rec ords, transcripts, and correspondence relating to the judgment unde r attack, shall be examined promptly by the judge to whom it is assigned. If it plainly appears from the face of the motion and any annexed exhibits and the prior proceedings in the case that the m ovant is not entitled

to relief in the district court, the judge shal l make an order for its summary dismissal[.]

Fed. R. S 2255 Proceedings 4(b).

14contained in a S 2255 petition may be disposed of w ithout

further investigation by the District Court. See Un ited States v. Dawson, 857 F.2d 923, 928 (3d Cir. 1988). Were all of Thomas's claims vague or conclusory, it coul d well be argued that any later filing would, in effect, cons titute an attempt to add a new claim or theory, an addition w hich Duffus would prohibit.

The District Court held that Thomas's petition was legally
insufficient because Thomas failed to set forth fac ts supporting the grounds alleged. We certainly agree that more than a few of Thomas's twenty-six grounds appe ar to be quite conclusory and too vague to warrant furthe r investigation. See, e.g., Issues Five, Fourteen and Fifteen (claims involving the alleged failure to interview and to call certain witnesses, with no potential witnesses iden tified). Some of the grounds, however, do allege sufficient supporting facts. See, e.g., Issues Three (claim th at indictment was not brought within 30 days of arrest ), Four (claim that indictment was not properly signed and sealed), Seven (claim that defense counsel failed to advise Thomas of his right to testify) and Eleven (claim that sev eral prosecution witnesses committed perjury and naming the specific witnesses). Needless to say, the District Court may
well find that at least some of the claims which do allege sufficient facts are, nevertheless, frivolous. Cert ain claims, however, such as the claim that defense counsel fai led to advise petitioner that he had the right to testify in his own defense, at least on their face present substantial issues upon which the District Court could have proceeded.

We hold, therefore, that the District Court erred i n summarily dismissing the petition in its entirety. Rather,
the District Court should have taken the less drast ic approach of paring down the extraordinarily lengthy list of grounds and proceeding on those -- perhaps only a f ew in number -- which did allege sufficient facts. And, o f course, had the District Court granted Thomas's application to file the memorandum in which he promised to present additional facts, that list, and the facts supporti ng that list, may well have changed.

15III.

For the foregoing reasons, we hold that under Fed. R. Civ. P. 15(c), a District Court may, in its discret ion, permit an amendment which clarifies or amplifies a claim o r theory in a timely filed S 2255 petition after the AEDPA's one-year period of limitations has expired. Because the Dist rict Court erred in summarily dismissing the petition an d in failing to consider whether Thomas's proposed amend ment, which we trust he will submit forthwith, relates ba ck to the date of the petition, we will vacate and remand for proceedings in accordance with this opinion.

A True Copy:

Teste:

Clerk of the United States Court of Appeals
for the Third Circuit

16