2000 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

8-1-2000

United States v. Thomas

Precedential or Non-Precedential:

Docket 98-3460

Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2000

This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova

University School of Law Digital Repository. It has been accepted for inclusion in 2000 Decisions by an authorized administrator of Villanova

University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.

Recommended Citation

"United States v. Thomas" (2000). 2000 Decisions. Paper 158.

http://digitalcommons.law.villanova.edu/thirdcircuit_2000/158
Filed 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 Circuit 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 relation 

back of amendments provision of Rule 15 of the Federal 

Rules of Civil Procedure ("Fed. R. Civ. P.") is consistent with 

28 U.S.C. S 2255 and the rules governing S 2255 

proceedings, such that an amendment to a timelyfiled 

S 2255 petition may relate back to the date of the petition 

after the expiration of the one-year period of limitations 

prescribed by the Antiterrorism and Effective Death Penalty 

Act of 1996 ("AEDPA"). We hold that it can. Under Fed. R. 

Civ. P. 15(c), an amendment which, by way of additional 

facts, clarifies or amplifies a claim or theory in the petition 

may, in the District Court's discretion, relate back to the 

date of that petition if and only if the petition was timely 

filed and the proposed amendment does not seek to add a 

new claim or to insert a new theory into the case. 

Accordingly, we will vacate the District Court's summary 

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. 

 2 
I. 

The facts underlying this appeal are simply stated. In 

1995, a jury in the Western District of Pennsylvania found 

petitioner Leroy Thomas ("Thomas") guilty of conspiracy 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 release. He 

appealed, and we affirmed his conviction and sentence. The 

Supreme Court denied Thomas's petition for a writ of 

certiorari on May 12, 1997. 

Thomas, pro se, thereafter timely filed aS 2255 petition. 

The petition consisted of a standardized form provided by 

the Clerk of the Court for the Western District of 

Pennsylvania which directs petitioners to: 

 (9) State concisely every ground on which you 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 the ground or 

 grounds which you choose. A mere statement of 

 grounds without facts will be rejected. 

 (a) Grounds 

 (b) Supporting FACTS (Tell your story briefly 

 without citing cases or law). 

App. at 8 (emphasis in original). Thomas completed the 

form and, in response to item 9(a), outlined a veritable 

laundry list of grounds in a two-page attachment. 1 In 

_________________________________________________________________ 

1. Thomas listed twenty-six separate grounds, but misnumbered two, 

resulting in an undercount such that there appear to be only twentyfour. Accordingly, in quoting the grounds in full below, we have labeled 

the erroneously double-counted issues as 8[A], 8[B], 14[A] and 14[B]: 

 Issue Number 1: Defense counsel was ineffective in failing to argue 

 that the sentence and conviction were fruit from a poisonous tree 

 and is[,] therefore[,] in violation of the Fourth Amendment of the 

 Constitution. 

 Issue Number 2: Counsel was ineffective in failing to argue that 

the 

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

 Issue Number 3: Defense counsel was ineffective in failing to move 

 for dismissal of the indictment because it was not brought about 

 within 30 days from my arrest. 
 3 
response to item 9(b), soliciting supporting facts, Thomas 

wrote: "facts will be presented in a separate memorandum 

_________________________________________________________________ 

 Issue Number 4: Defense counsel was ineffective in failing to file 

a 

 motion to dismiss the indictment where it was not signed by the 

 foreperson of the grand jury and where it was not properly sealed. 

 Issue Number 5: Defense counsel was ineffective where he failed to 

 request a mistrial when the prosecution promised to call witness 

but 

 failed to subsequently call such witness. 

 Issue Number 6: Defense counsel was ineffective in failing to call 

 defense witnesses after he promised petitioner that he would. 

 Issue Number 7: Defense counsel was ineffective in failing to 

 advise[ ] petitioner that it was his right to decide whether to 

testify 

 in his defense. 

 Issue Number 8[A]: The Government violated the Jencks and Brady 

 Act by failing to turn over certain statements 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 prosecutorial 

 misconduct in the closing argument. 

 Issue Number 10: Defense counsel was ineffective in failing to 

argue 

 before the court that the sole government [witness] before the 

grand 

 jury committed perjury which was material to the matter at hand. 

 Issue Number 11: The prosecution committed misconduct at trial by 

 presenting perjur[ed] testimonies of its witnesses: 

 1. Troy Saunders 

 2. Benjamin Day 

 3. Larry Humphries 

 4. Edward Shied 

 Issue Number 12: Defense counsel was ineffective in failing to 
 [object to] the introduction of the guns allegedly found in 

apartment 

 next door to petitioner. 

 Issue Number 13: The prosecution committed misconduct by 

 advising defense counsel that it will not be introducing guns into 

 trial and then by turning around and introducing the same weapons 

 into evidence. 

 Issue Number 14[A]: The prosecution violated Rule 16 of the 

 Discovery Rule by failing to advise the defense of the evidence it 

 intended to introduce as its case-in-chief at trial. 

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

after mailing his S 2255 petition and six days prior to the 

expiration of the AEDPA's one-year period of limitations, 

Thomas filed a "Motion to Hold 2255 Petition in Abeyance 

until Petitioner Submits Memorandum of Law in Support of 

the Petition," which he represented would be submitted 

within sixty to ninety days. He argued that he needed 

additional time because the "issues are complicated, 

requiring an extensive review" of the record and because 

his time was limited due to a prison work assignment. 

_________________________________________________________________ 

 Issue Number 14[B]: Defense counsel was ineffective in failing to 

 interview the prosecution witnesses before trial. 

 Issue Number 15: Defense counsel was ineffective in failing to 

 interview defense witnesses. 

 Issue Number 16: The government failed to prove that the substance 

 allegedly involved in the offense was crack as defined in the 

 sentencing guidelines. 

 Issue Number 17: Defense counsel was ineffective in failing to 

 appeal order denying probable cause motion. 

 Issue Number 18: Defense counsel was ineffective 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 ineffective in failing to 

argue 

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

 Issue Number 20: Petitioner's sentence and conviction is in 

violation 

 of double jeopardy and the due process clause of the Constitution 

of 

 the United States. 

 Issue Number 21: The government violated Brady by failing to 

 disclose to the defense that it had made deals with its witnesses. 

 Issue Number 22: Defense counsel was ineffective in failing to 

object 

 to the variance between the evidence presented to the grand jury 

 and the evidence presented at trial. 

 Issue Number 23: Defense counsel was ineffective in not objecting 

to 

 the Government's witnesses's in-court identification of petitioner. 

 Issue Number 24: Defense counsel was ineffective in failing to 
 impeach the prosecution's witnesses with their prior inconsistent 

 testimonies and statements. 

 5 
The government, in its response to the motion, contended 

that Thomas's request for extra time and permission to file 

a memorandum of law constituted an impermissible endrun around the AEDPA's one-year period of limitations. It 

maintained, as well, that the grounds set forth in Thomas's 

petition were vague, conclusory, and lacking in factual 

support and, therefore, were insufficient to entitle him to 

any relief whatsoever. The District Court agreed, and on 

June 29, 1998 denied Thomas's request to file his proposed 

memorandum because it would constitute an amendment

beyond the AEDPA's period of limitations and dismissed the 

petition on the ground that it failed to set forth a cause of 

action as required by Rule 2 of the Federal Rules Governing 

S 2255 Proceedings. The Court stated: 

 Defendant has attached a two-page statement setting 

 forth 24 issues which he alleges to be the grounds for 

 his motion. The statement of these issues, however, is 

 entirely conclusory and details none of the supporting 

 facts. As to the supporting facts, defendant alleges 

 "facts will be presented in a separate Memorandum of 

 Law in support of petition[.]" Were defendant to file a 

 memorandum setting forth the facts supporting his 

 grounds for the motion at the present time, or in the 

 future, the memorandum would, in effect, amend 

 defendant's motion in a material respect after 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 his 

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 motion for 

reconsideration and subsequently denied his request for a 

certificate of appealability. 

On September 17, 1999, this Court granted a certificate 

of appealability as to the following issues: (1) whether the 

District Court erred in determining that it lacked the 

 6 
discretion to accept petitioner's memorandum of law

because it would be filed out of time; and (2) whether Rule 

15 is inconsistent with 28 U.S.C. S 2255 and with the 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 both in 

their briefs and at oral argument. Simultaneously with the 

filing of their opening brief, CJA counsel moved to expand 

the scope of the certificate of appealability to include 

consideration of the factual sufficiency of Thomas's petition. 

This Court granted the request, including in the 

certification: (1) whether the original S 2255 petition 

included sufficient facts to avoid summary dismissal; and 

(2) whether, in light of the strict one-year time limit 

imposed by the AEDPA, district courts confronted with 

S 2255 petitions which the courts deem to include too 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 denying the 

amendment but, rather, apparently believed that it did not 

have the authority to apply Rule 15 to a S 2255 petition. 

The question of whether Rule 15 applies to S 2255 petitions 

implicates the interpretation and application of legal 

precepts; therefore, our standard of review is plenary. See 

Cooney v. Fulcumer, 886 F.2d 41, 43 (3d Cir. 1989). We 

also exercise plenary review over the legal conclusions 

which prompted the District Court to summarily dismiss 

Thomas's petition. See Rios v. Wiley, 201 F.3d 257, 262 (3d 

Cir. 2000). 

A. 

The Federal Rules of Civil Procedure apply to habeas 

corpus proceedings "to the extent that the practice in such 

 7 
proceedings is not set forth in statutes of the United States 

and has heretofore conformed to the practice in civil 

actions." Fed. R. Civ. P. 81(a)(2). In addition, the rules 

governing S 2255 proceedings provide that: 

 If no procedure is specifically prescribed by these rules, 

 the district court may proceed in any lawful manner 

 not inconsistent with these rules, or any applicable 

 statute, and may apply the Federal Rules of Criminal 

 Procedure or the Federal Rules of Civil Procedure, 

 whichever it deems most appropriate, to motionsfiled 

 under these rules. 

Fed. R. S 2255 Proceedings 12 (emphasis added). Neither 28 

U.S.C. S 2255 nor the rules governing S 2255 proceedings 

explicitly proscribes the relation back of amendments. 

Rather, the statute and governing rules are silent.

The procedures applied to habeas petitions filed after 

April 24, 1996, the effective date of the AEDPA, and, 

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 civil 

proceedings of allowing amendments to correct a defective 

pleading or to amplify an insufficiently stated claim and 

relating those amendments back to the date of the original 

filing when the amendments might otherwise have been 

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 judgment 

of conviction becomes final." 28 U.S.C. S 2255; see

generally United States v. Miller, 197 F.3d 644, 651 (3d Cir. 

1999). The government posits that the tension between 

Rule 15(c) and the AEDPA requires us to hold that Rule 

15(c) cannot apply to habeas proceedings in the same 

manner in which it applies to other civil proceedings. We 

disagree. 

In United States v. Duffus, 174 F.3d 333 (3d Cir. 1999), 

cert. denied, 120 S. Ct. 163 (1999), this Court addressed 

the apparent inconsistency between Rule 15(a) and the 

 8 
AEDPA. There, Duffus, proceeding pro se,filed a S 2255 

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 petitioners after 

the AEDPA's effective date. In the petition, Duffus asserted 

that his attorney had been ineffective in failing to contend 

on appeal that the evidence against Duffus was insufficient 

to convict him of money laundering and in failing to object 

to the District Court's use of the sentencing guidelines in 

effect at the time of sentencing as opposed to those in effect 

at the time Duffus allegedly withdrew from the conspiracy. 

In addition, Duffus asserted that at sentencing the District 

Court had miscalculated the quantity of drugs attributable 

to him. 

More than six months after filing his petition, and after 

the one year grace period accorded petitioners after 

AEDPA's effective date of April 24, 1996 had run, Duffus 

moved to amend the petition to add another ineffective 

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 and 

Recommendation, the District Court denied Duffus's motion 

to amend because of Duffus's delay in presenting that claim 

and dismissed the petition without an evidentiary hearing. 

The District Court had earlier allowed Duffus thirty 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 conviction, the 

one-year grace period following the enactment of the 

AEDPA, and the six months since the filing of his petition. 

"There was nothing in [Duffus's] motion to amend," found 

the Court, "that could not have been included in the 

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 

_________________________________________________________________ 

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

 9 
The government, however, had already filed a responsive 

pleading in Duffus's case. Therefore, Duffus could only 

amend his pleading "by leave of court which leave shall be 

freely given when justice so requires." Id . at 337 (quoting 

Fed. R. Civ. P. 15(a)). We stated that leave to amend should 

be freely granted unless there is evidence of "undue delay, 

bad faith or dilatory motive on the part of the movant, 

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. 178, 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 Court's denial 

of Duffus's motion to amend in light of the "special 

situation" created by the AEDPA's one-year period of 

limitations with its recognized grace period. Had the 

District Court granted Duffus's motion to add a new claim, 

we reasoned, it would have "frustrated the intent of 

Congress that claims under 28 U.S.C. S 2255 be advanced 

within one year after a judgment of conviction becomes 

final[.]" Id. 

Duffus stated, however, albeit in dictum , that in certain 

circumstances, a district court could allow an amendment 

to a S 2255 petition after the expiration of the one-year 

period of limitations. Specifically, we noted that, while it 

would frustrate the intent of Congress to allow Duffus to 

amend his petition by adding a "completely new" ground for 

relief after the one-year period of limitations had run, 

"[c]ertainly the court could have permitted an amendment 

_________________________________________________________________ 

 (a) Amendments. A party may amend the party's pleading once as 

 a matter of course at any time before a responsive pleading is 

served 

 or, if the pleading is one to which no responsive pleading is 

 permitted and the action has not been placed upon the trial 

 calendar, the party may so amend it at any time within 20 days 

 after it is served. Otherwise a party may amend 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). 

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

"[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 deemed 

timely under the `relation back' provisions of Fed. R. Civ. P. 

15(c)." Id. The facts of this case cause us to go where 

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 Circuit. 

The purpose of Rule 15 "is to provide maximum 

opportunity for each claim to be decided on its merits 

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, Federal 

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 may not 

allege an entirely new claim by amendment after the

expiration of the statute of limitations. A party may, 

however, attempt to raise and to relate back a new claim 

which would otherwise have been barred by the statute of 

limitations as long as the claim "arose out of the conduct, 

transaction, or occurrence set forth . . . in the original 

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 in a civil 

proceeding. See Kapral v. United States, 166 F.3d 565, 567 

_________________________________________________________________ 

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

 (c) Relation Back of Amendments. An amendment of a pleading 

 relates back to the date of the original pleading when 

 (1) relation back is permitted by the law that provides the 

statute 

 of limitations applicable to the action, or 

 (2) the claim or defense asserted in the amend ed pleading arose 

 out of the conduct, transaction, or occurrence 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 petition to 

add a completely new claim after the statute of limitations 

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 expanding 

the facts but not the claims alleged in the petition.4 An 

amendment for that purpose would clearly fall within 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 his 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 likely be a 

prisoner's only opportunity to collaterally challenge a 

sentence by refusing to even consider whether a proposed 

amendment relates back to his or her petition would be to 

elevate procedural rules over substance. Thus, we hold that 

Rule 15(c)(2) applies to S 2255 petitions insofar as a District 

Court may, in its discretion, permit an amendment to a 

petition to provide factual clarification or amplification after 

the expiration of the one-year period of limitations, as long 

as the petition itself was timely filed and the petitioner does 

_________________________________________________________________ 

4. Although we do not know precisely what Thomas would have set forth 

in the memorandum he sought to submit, it is probably 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 presented 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 or 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 petitions 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 affirming denial of 

permission to amend because proposed amendment arose from separate 

occurrence); United States v. Craycraft, 167 F.3d 451, 457 (8th Cir. 

1999)(applying Rule 15(c)(2) and affirming denial of permission to amend 

because proposed claim was "distinctly separate" from claims already 

pled). 

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

relief. 

The District Court's denial of Thomas's request tofile a 

memorandum of law and its dismissal of his petition predated our ruling in Duffus. We assume that the District 

Court, without Duffus's guidance, was operating under the 

erroneous impression that it did not have the authority 

under Rule 15 to allow an amendment to a habeas petition. 

As a result, the Court did not seek to determine whether 

Thomas would have advanced a new claim or new theory or 

whether he was merely seeking to add meat to the bare 

bones of the numerous grounds he listed in his petition. 

In any event, post-Duffus, it is clear that a District Court 

does have the authority under Rule 15(a) to consider a 

motion to amend a habeas petition and, post-Thomas, to 

consider whether the proposed amendment relates back to 

the filing date of the petition after the expiration 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 Court to 

consider on remand.5 

B. 

Prior to oral argument, this Court enlarged the scope of 

the certificate of appealability to include the issue of 

whether Thomas's S 2255 petition pled sufficient facts to 

avoid summary dismissal.6 This is a question of some 

_________________________________________________________________ 

5. The government argues that remand would be futile because it is 

inevitable that the District Court will deny Thomas permission to amend. 

This argument is based on the government's assumption that Thomas's 

stated reason for the amendment -- the need for more time -- is 

inadequate because he had sufficient time to familiarize himself with the 

facts of his own case. We express no opinion on the adequacy or 

inadequacy of Thomas's reason for requesting an extension of time, but 

we disagree that the District Court need not address the issue. 

6. CJA Counsel argue that the form distributed to habeas petitioners by 

the Clerk of the Court for the Western District of Pennsylvania should be 

changed. Counsels' point is well-taken. The form instructs petitioners to 

"[s]tate concisely every ground," to "allege facts in support of the 

ground 

 13 
significance because were we to find that none of the 

grounds alleged in the petition would entitle Thomas to 

relief, the petition would be subject to summary dismissal. 

See Fed. R. S 2255 Proceedings 4(b). 7 Indeed, we have 

previously held that vague and conclusory allegations 

_________________________________________________________________ 

or grounds," and to "[t]ell your story briefly". App. at 8 (emphasis in 

original). These directives, which emphasize brevity, 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 dismissal for failure to 

plead sufficient grounds or facts. Moreover, this form resembles the 

Model form contained in the habeas rules, a form which has not been 

changed since 1982. Prior to the AEDPA, a petitioner whose factual 

allegations were too brief had the opportunity to come back in without 

bumping up against a statute of limitations. Accordingly, we recommend 

that the district courts amend their forms in the following ways. First, 

the form might encourage petitioners to specifically plead facts 

sufficient 

to support their claims. Second, the form might warn petitioners that, 

due to the AEDPA's period of limitations, they may not have the 

opportunity to amend their petitions at a later date. Further, the form 

could perhaps instruct petitioners that while an amendment to clarify or 

to offer further factual support may be permitted at the discretion of the 

District Court, an amendment which seeks to introduce a new claim or 

a new theory into the case will not be permitted after the statute of 

limitations has expired. 

These types of amendments to the standard habeas forms would be in 

keeping with this Court's recognition in United States v. Miller, 192 F.3d 

644, 649 (3d Cir. 1999), that the AEDPA has "dramatically altered" the 

nature of federal habeas proceedings. They would also be in keeping with 

the prophylactic rule announced in Miller, see id. at 646, which was 

aimed both at promoting judicial efficiency in these proceedings, and 

insuring that federal habeas petitioners fairly have 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, records, transcripts, and 

 correspondence relating to the judgment under 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 movant is not entitled 

to 

 relief in the district court, the judge shall make an order for its 

 summary dismissal[.] 

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

 14 
contained in a S 2255 petition may be disposed of without 

further investigation by the District Court. See United 

States v. Dawson, 857 F.2d 923, 928 (3d Cir. 1988). Were 

all of Thomas's claims vague or conclusory, it could well be 

argued that any later filing would, in effect, constitute an 

attempt to add a new claim or theory, an addition which 

Duffus would prohibit. 

The District Court held that Thomas's petition was legally 

insufficient because Thomas failed to set forth facts 

supporting the grounds alleged. We certainly agree that 

more than a few of Thomas's twenty-six grounds appear to 

be quite conclusory and too vague to warrant further 

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 identified). 

Some of the grounds, however, do allege sufficient 

supporting facts. See, e.g., Issues Three (claim that 

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 several 

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. Certain claims, 

however, such as the claim that defense counsel failed 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 in 

summarily dismissing the petition in its entirety. Rather, 

the District Court should have taken the less drastic 

approach of paring down the extraordinarily lengthy list of 

grounds and proceeding on those -- perhaps only a few in 

number -- which did allege sufficient facts. And, of 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 supporting that list, 

may well have changed. 

 15 
III. 

For the foregoing reasons, we hold that under Fed. R. 

Civ. P. 15(c), a District Court may, in its discretion, permit 

an amendment which clarifies or amplifies a claim or theory 

in a timely filed S 2255 petition after the AEDPA's one-year 

period of limitations has expired. Because the District 

Court erred in summarily dismissing the petition and in 

failing to consider whether Thomas's proposed amendment, 

which we trust he will submit forthwith, relates back 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