* 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that this opinion should not be published and is not precedent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.

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.

- - - - - - - - - -

Appeal from the United States District Court

for the Eastern District of Texas

USDC No. 1-96-CV-187

- - - - - - - - - -

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 
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

-3-

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.