UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 00-11267

____________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

ZOSIMO REYES SAENZ,

Defendant-Appellant.

_________________________________________________________________

Appeal from the United States District Court

for the Northern District of Texas

_________________________________________________________________

February 11, 2002

Before DUHÉ, BARKSDALE, and DENNIS, Circuit Judges.

RHESA HAWKINS BARKSDALE, Circuit Judge:

This appeal presents an issue of first impression in this

cir cuit: whether the district court abused its discretion by

denying, as time-barred, Zosimo Reyes Saenz’s motion to amend his

28 U.S.C. § 2255 motion, rather than deciding whether, pursuant to

Federal Rule of Civil Procedure 15, to allow the amendment. Saenz,

federal prisone r # 27420-077, was granted a certificate of

appealability on this issue alone. VACATED in PART and REMANDED.

I.

Saenz was found guilty, following a jury trial, of possession

with intent to distribute methamphetamine, in violation of 21

U.S.C. §§ 841(a)(1) and 841(b)(1)(A)(viii) (Coun t I), and

possession of a firearm during and in relation to a drug2

tra fficking crime, in violation of 18 U.S.C. § 924(c)(1) (Count

II). In November 1995, Saenz was sentenced to 235 months

imprisonment on Count I and 60 months on Count II. His appeal was

dismissed following the submission of an Anders motion and brief by

his court-appointed counsel. U nited States v. Saenz

, No. 95-11087

(5th Cir. 1996) (unpublished). That dismissal ruled Saenz’s

ineffective assistance of counsel claims should be raised in a §

2255 motion.

In February 1997, Saenz moved to correct his sentence,

pursuant to 18 U.S.C. § 3582(c)(1 ) (presenting a claim under

Bailey v. United States

, 516 U.S. 137 (1995)). The district court

treated the filing as a 28 U.S.C. § 2255 motion. F ollowing an

appeal being voluntarily dismissed by Saenz (because there was no

final or othe rwise appealable order), the district court granted

Saenz’s motion to supplement his § 2255 motion and permitted the

Government to respond to additional grounds raised in the

supplement. Saenz’s supplemental motion alleged, inter alia :

“D efendant never had any offer for a plea. Defendant never had

sufficient comunication [sic] with caunsel [sic] exept [sic] trough

[sic] messangers [sic] who come to Jail to say. (Kevin [Saenz’s

trial counsel] want you to signe [sic] this papers.)”

Followi ng responses by the Government and Saenz in May and

June 1997, respectively, the case languished for almost three years

until 18 January 2000, when Saenz moved to supplement his § 2255

motion, seeking to add th at his trial counsel failed to convey a

plea offer to him. The magistrate judge denied, as time-barred,3

Saenz’s motion to supplement, concluding that he waited 28 months

after learnin g of the plea offer to present this claim. The

magistrate judge then recommended denial of Saenz’s § 2255 motion.

Following receipt of Saenz’s obje ctions (including not being

allowed to supplement), the district court adopted the magistrate’s

report and recommendations, denying Saenz’s § 2255 motion.

Saenz timely filed a notice of appeal and separately filed an

a pplication for a certificate of appealability (COA). The

magistrate judge recommended denial of the COA for the reasons

s tated in his report and recommendations, and the district co urt

adopted that recommendation, denying Saenz’s COA request. On 2

April 2001, our court: denied the majority of the COA request but

granted a COA on “whether the district court abused its discretion

when it denied as time barred [Saenz’s] motion to amend the

complaint”; and appointed counsel for him.

II.

Habeas applications “may be amended or supplemented as

provided in the rules of proc edure applicable to civil actions”.

28 U.S.C. § 2242. Similarly, Rule 12 of the Rules Governing

Section 2255 Proceedings for the United States Distri ct Courts

authorizes district courts to apply the Federal Rules of Civil

Procedure when appropria te and not inconsistent with applicable

statutes or rules.

Subject to certain conditions, Federal Rule of Civil Procedure

15 allows a party to amend a pleading. He may do so, inter alia

,

once before service of a responsive pleading; otherwise, he may4

amend “only by leave of court or by written consent of the adverse

party; and leave shall be freely given when justice so requires”.

F ED

. R. C IV

. P. 15(a). “An amendment of a pleading relates back to

the date of the original pleading when

... the clai m or defense

asserted in the amended pleading arose out of t he conduct,

transaction, or occurrence set forth or attempted to be set forth

in the original pleading.” F ED

. R. C IV

. P. 15(c)(2).

The Government concedes Rule 15 applies in § 2255 proceedings.

Every circuit that has addressed this issue agrees th e AntiTerrorism and Effecti ve Death Penalty Act’s one-year statute of

limitations, 28 U.S.C. §§ 2244(d)(1) and 2255, does not render Rule

15 inapplicable to federal habeas proceedings. S ee, e.g., Calderon

v. Ashmus

, 523 U.S. 740, 750 (199 8) (Breyer, J., concurring)

(unless expre ssly governed by statute, Rule 15 applies in habeas

proceedings); Fama v. Comm’r of Corr. Servs.

, 235 F.3d 804, 814-16

(2d Cir. 2000) (applying Rule 15 to both §§ 2254 and 2255 motions);

Anthony v. Cambra , 236 F.3d 568, 576-77 (9th Cir. 2000) (applying

Rule 15 to § 2255 motion), ce rt. denied , 121 S. Ct. 2576 (2001);

U nited States v. Espinoza-Saenz , 235 F.3d 501, 503-04 (10th Cir.

2000) (§ 2255 motion); United States v. Thomas , 221 F.3d 430, 436

(3d Cir. 2000) (Rule 15 applies to § 2255 as long as the petitioner

is not seeking “to add an entirely new claim or new theory of

relief”.); Davenport v. United States

, 217 F.3d 1341, 1344-46 (11th

Cir. 2000), cert. denied

, 121 S. Ct. 1232 (2001); United States v.

Pittman

, 209 F.3d 314, 317-18 (4th Cir. 2000); United States v.

Craycraft , 167 F.3d 451, 457 (8th Cir. 1999).5

Moreover, the Government is of the opinion that the proposed

amendment

— counsel’s alleged failure to convey a plea offer

—

r elates back to Saenz’s permitted 1997 supplement concerning the

claims that trial counsel was ineffective because, inter alia , he

did not s ufficiently communicate with Saenz and “Defendant never

had any offer for a plea”.

The district court, by adopting the magistrate judge’s report

and recommendations, denied Sae nz’s motion as time-barred. We

review for abuse of discretion a district court’s decision

concerning amendment of pleadings. E .g., Uni on Planters Nat’l

Leasing, Inc. v. Wood s , 687 F.2d 117, 121 (5th Cir. 1982). An

erroneous legal conclusion constitutes an abuse of discretion.

E.g

., In re Coastal Plains, Inc. , 179 F.3d 197, 205 (5th Cir.

1999), cert. denied , 528 U.S. 1117 (2000).

Because the Government responded to Saenz’s supplemental

motion in 1997, Saenz was required to seek leave from the district

court to again amend his § 2255 motion. S ee F ED

. R. C IV

. P. 15(a).

The district court ruled Saen z’s motion was time-barred, without

explaining the basis, Rule 15 or otherwise, for doing so. In other

words, it should have stated the underlying legal basis for its

finding a time-bar, including determining, under Rule 15, whether

the amendment relat ed back to Saenz’s original pleading and

“consider[ed] such factors as prejudice to the opposing party,

undue delay, repeated failure to cure deficiencies with prior

amendment, bad faith, dilatory motive and futility of amendment”.

Union Planters , 687 F.2d at 121.6 III.

Therefore, we VACATE that portion of the judgment denying

l eave to supplement concerning Saenz’s allegedly not receiving a

plea offer from his trial counsel and REMAND to the district court

for further proceedings c onsistent with this opinion, including

deciding whether the supplement should be allowed under Federal

Rule of Civil Procedure 15.

VACATED in PART and REMANDED