                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                           June 7, 2005
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                                 Clerk


    UNITED STATES OF AMERICA,

                Plaintiff-Appellee,
                                                         No. 03-2239
    v.                                          (D.C. No. CV-03-172-MV/ACT)
                                                           (D. N.M.)
    EMMANUEL N. OHIRI,

                Defendant-Appellant.


                            ORDER AND JUDGMENT            *




Before BRISCOE , ANDERSON , and MURPHY , Circuit Judges.




         After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal.   See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.




*
 This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. The court generally
disfavors the citation of orders and judgments; nevertheless, an order and
judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
         Emmanuel N. Ohiri, appearing pro se, appeals from the district court’s

denial of his motion to amend his original motion to vacate, set aside, or correct

his sentence filed pursuant to 28 U.S.C. § 2255. 1 He also seeks a certificate

appealability so he can appeal the court’s dismissal of his original motion.

Claiming actual innocence, Ohiri seeks collateral relief from his sentence and

convictions, which were based on a guilty plea. In his amended motion, he

contends the government committed Brady violations 2 by failing to disclose

exculpatory evidence material to his decision whether to plead guilty. He also

contends that he received ineffective assistance of counsel in violation of the

Sixth Amendment.

         We reverse the denial of the motion to amend the § 2255 motion and

remand for further proceedings.     3



I.       Background

         On October 4, 2000, a federal grand jury returned a twenty-five count

indictment charging General Waste Corporation (“GWC”), Ohiri, and John

Thomas Morris with conspiracy to transport, store, and dispose of hazardous



1
 This court granted Ohiri a certificate of appealability on the issue whether the
district court abused its discretion when it denied his request to file a pro se
amended § 2255 motion.
2
    Brady v. Maryland , 373 U.S. 83 (1963).
3
    Respondent’s Motion to Supplement the Record on Appeal is    granted .

                                           -2-
waste in violation of the Resources and Conservation Recovery Act.           See United

States v. Morris , 85 Fed. App. 117, 119 (10th Cir. 2003). GWC was “a New

Mexico solid waste management business licensed to remove hazardous waste

from generating facilities and transport it to final disposal facilities.”   Id. at 118.

Ohiri was GWC’s chief executive officer; Morris served as GWC’s hazardous

waste and construction debris operations manager from July 1997 to July 1998.

Id. at 119 & n.2.

       Morris pleaded guilty to three counts of knowingly making false statements

and representations on manifests.       Id. at 119. In a written statement made by

Morris to the Environmental Protection Agency in 1999 and included in his

presentence report, Morris stated:

       The first two weeks that I joined GWC, Manny Ohiri instructed me to
       identify, segregate, and label miscellaneous hazardous waste
       containers. Those containers had been accumulated by GWC waste
       management activities, and stored in GWC warehouse prior to my
       arrival. . . . I do not know how long the regulated material GWC
       accumulated had been in storage prior to my employment. My
       participation included recreating false waste manifests for proper off-
       site disposal of the waste GWC had accumulated prior to my
       employment. Manny Ohiri was aware of this activity.

United States v. Ohiri , 242 F. Supp.2d 1038, 1041 (D.N.M. 2003). Pursuant to

the terms of a plea agreement dated March 4, 2002, Ohiri also pleaded guilty to

three counts. Count 21 provided that from February 13, 1998 until May 18, 1999,

Ohiri knowingly stored 11,000 pounds of hazardous waste from the Four Corners


                                               -3-
Drilling Company without a permit. Count 23 provided that from July 17, 1998

until October 15, 1998, Ohiri knowingly stored 225 pounds of hazardous waste

from Giant Refining Company without a permit. Count 25 provided that from

May 28, 1999 until July 27, 2001, Ohiri knowingly stored 183 pounds of

hazardous waste obtained from iiná bá, a New Mexico company, and 122 pounds

of hazardous waste from TPL, Inc. without a permit. At sentencing, Ohiri argued

that an enhancement for his role as an organizer, leader, manager, or supervisor

should not be applied because the government had failed to show that Morris

“was involved criminally in the particular conduct that is the basis of [Ohiri’s]

guilty pleas.”   Id. at 1040. In addressing this argument, the district court

reviewed and read aloud Morris’ Acceptance of Responsibility Statement. This

statement was provided to the probation officer for inclusion in Morris’

presentence report.   Id. at 1041. The government concedes that it had never

provided this statement to Ohiri or his attorney, John Cline. In the Acceptance of

Responsibility Statement, Morris first repeated the statement he made to the EPA

in 1999, asserting that Ohiri instructed him to dispose of hazardous waste that had

been accumulated and unlawfully stored by GWC prior to his employment.

Morris then addressed Ohiri’s knowledge of Morris’ other illegal activities:

       Once the waste in the warehouse was organized, I started to make
       sales contacts with hazardous waste accounts I had managed prior to
       my employment with GWC. My previous employer . . . had an
       authorization granted by the State of New Mexico to store hazardous

                                           -4-
        waste, up to 180 days, received from a conditionally-exempt small-
        quantity waste generator [CESQG]. Without this type of
        authorization, a waste management transporter could only store the
        waste for no more than ten days. I personally made the decision, of
        my own accord, to operate GWC as if we were authorized as a 180-
        day storage and accumulation facility. I created uniform hazardous
        waste shipping manifests for GWC as the receiving facility. I then
        remanifested the waste containers, and had GWC designated as a
        generator for out-bound waste disposal. I intentionally did this for
        building or aggregating larger outbound shipments [for] economical
        reasons. Manny Ohiri was not informed of my waste management
        strategy and techniques in this particular case. For economical
        benefits and to increase profit margins related to the account, I would
        consolidate partial waste containers, mixing waste from multiple
        CESQGs, reducing outbound disposal container volume. I did this
        on my own accord, and Manny Ohiri was not informed of this
        strategy. In order to maintain my waste management accounts and
        integrity, I would change dates on various small quantity generator
        manifests, due to the waste facility non-approval status. I would pick
        up waste without obtaining disposal facility prior approval, and
        would hold the waste over an extended amount of time, until the
        approval was in place. I had recreated waste manifests and forged
        signatures to be in compliance, and to elude the waste generator and
        disposal facility. Manny Ohiri was not informed of this activity.

        Although it considered Morris’ Acceptance of Responsibility Statement, the

district court concluded that Ohiri had a supervisory role over Morris in other

relevant crimes and imposed a two-level enhancement pursuant to § 3B1.1(c) of

the United States Sentencing Guidelines.      Ohiri , 242 F. Supp.2d at 1041. Ohiri

was sentenced to a fifteen-month term of imprisonment, three years of supervised

release and, ordered to pay nearly $42,000 in fines and restitution.   See id. at

1042.



                                            -5-
      After Ohiri was sentenced, Cline moved to withdraw and Ohiri obtained

representation from new counsel, Ray Twohig. Twohig filed a Motion for a New

Trial, a New Sentencing, or a Correction of Sentence. The motion was denied.

Twohig then filed a perfunctory § 2255 motion alleging only that: (1) Ohiri’s

guilty plea was involuntary, (2) Ohiri was opposed to proceeding with sentencing,

and that (3) Ohiri was not aware of Morris’ Acceptance of Responsibility

Statement and thus his “involuntary guilty plea remained involuntary.” The §

2255 motion was not supported by affidavits, record evidence, or a brief. The

magistrate judge did not hold an evidentiary hearing but prepared a Report and

Recommendation recommending that the motion be dismissed. The magistrate’s

recommendation was based, in part, on his conclusion that there was “simply

nothing in the record to support Ohiri’s conclusory assertions that he did not want

to plead guilty.”

      Twohig moved to withdraw and the district court granted the motion. Ohiri

filed pro se objections to the Report and Recommendation and moved to amend

his § 2255 motion. In support of his Motion to Amend, Ohiri asserted that the

Report and Recommendation was “based on a deficient, inappropriate, incomplete

and curtailed petition filed by the attorney of record Mr. Twohig . . . [who]

refused to prosecute the petitioner’s claims of ineffective assistance of counsel,

and failed to support the petition with memorandum of law, [and] points and


                                         -6-
authorities . . . .” Ohiri further asserted that he had filed with the court an

amended § 2255 motion and referred the court to the arguments set out in that

motion.

      In the amended § 2255 motion and accompanying memorandum, Ohiri

again asserted that his plea was not made knowingly and voluntarily. He also

specifically alleged Brady violations for the first time. He argued that the

government’s failure to provide him with Morris’ Acceptance of Responsibility

Statement constituted a   Brady violation and further argued that he would not have

pleaded guilty if Morris’ “exculpatory statements been disclosed to [him] prior to

entry of the pleas.” Ohiri also argued in the amended motion that Cline was

ineffective by failing to (1) properly investigate the case; (2) obtain material

information, including Morris’ Acceptance of Responsibility Statement; (3)

interview or cross-examine witnesses; and (4) offer any evidence at his sentencing

hearing. He contends that part of Cline’s ineffectiveness was due to the fact that

Ohiri was unable to pay him and Cline’s partners were pressuring him not to

spend any more time on the case.

      The court denied Ohiri’s motion to amend, concluding that the ineffective

assistance of counsel claim had been raised in the original motion and “addressed

on the merits in the Magistrate Judge’s Proposed Findings and Recommended

Disposition,” and that Ohiri had “no valid claim for ineffective assistance of


                                           -7-
counsel.” The district court did not address Ohiri’s allegations of     Brady

violations. In a separate order, the court adopted the Report and Recommendation

and dismissed Ohiri’s § 2255 motion. Ohiri has served his sentence and is no

longer incarcerated, but he is still subject to supervised release, the ramifications

of his felony convictions, and significant fines.    Thus, his § 2255 motion is not

moot. See Jones v. Cunningham, 371 U.S. 236, 242-43 (1963); Oyler v.

Allenbrand, 23 F.3d 292, 293-94 (10th Cir. 1994).

II.    Discussion

       A.     Standard of Review

       “We review a trial court’s decision on whether to allow amendment of

pleadings for abuse of discretion. A court should freely grant leave to amend

when justice so requires.” Gillette v. Tansy , 17 F.3d 308, 312 (10th Cir. 1994)

(citations omitted) (reversing district court’s denial of motion to amend § 2254

habeas application to add claim as an abuse of discretion). Rule 15 of the Federal

Rules of Civil Procedure governs a motion to amend a § 2255 motion if it is made

before the one-year limitation period for filing a § 2255 motion has expired.         See

United States v. Espinoza-Saenz     , 235 F.3d 501, 505 (10th Cir. 2000) (      holding

that “an untimely amendment to a § 2255 motion which, by way of additional

facts, clarifies or amplifies a claim or theory in the original motion may, in the

District Court’s discretion, relate back to the date of the original motion if and


                                             -8-
only if the original motion was timely filed and the proposed amendment does not

seek to add a new claim or to insert a new theory into the case” (emphasis

added)). The judgment of conviction was entered on December 23, 2002, so

Ohiri’s motion to amend his § 2255 motion, filed on August 18, 2003, was made

within the one-year limitation period.

              Rule 15(a) declares that leave to amend “shall be freely given
       when justice so requires”; this mandate is to be heeded.  See
       generally , 3 Moore, Federal Practice (2d ed. 1948), ¶15.08, ¶15.10.
       If the underlying facts or circumstances relied upon by a plaintiff
       may be a proper subject of relief, he ought to be afforded an
       opportunity to test his claim on the merits. In the absence of any
       apparent or declared reason–such as 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 allowance of the amendment, futility
       of amendment, etc.–the leave sought should, as the rules require, be
       “freely given.”

Foman v. Davis , 371 U.S. 178, 182 (1962).

       B.     The Amended Motion

       Respondent, while conceding that it received a copy of Ohiri’s proposed

amended § 2255 motion, first suggests that Ohiri may have failed to submit the

amended motion to the district court, noting that a copy of the amended motion

and accompanying affidavits and attachments is not in the district-court record.   4




4
 Ohiri asserts that he mailed the amended motion and supporting documents to the
district court on August 15. He has attached a copy of a certified mail receipt
dated August 15, 2003 to his reply brief.

                                            -9-
Without seeing the amended motion, Respondent argues, the district court would

have known that Ohiri raised general allegations of ineffective assistance of

counsel, but would have had no knowledge of Ohiri’s specific claims. Thus, it

could not have abused its discretion in refusing to grant the motion to amend.

       Respondent is correct that copies of the amended motion and the supporting

documents are not in the district-court record. When the district court denied the

motion to amend, it wholly failed to discuss Ohiri’s          Brady claims and failed to

specifically address the expanded ineffective-assistance-of-counsel claims

asserted in the amended motion. In Ohiri’s motion, however, he explicitly directs

the court to the arguments set forth in the amended motion and “supporting”

documents. Accordingly, even assuming that Ohiri failed to properly file the

amended motion and accompanying documents, the district court should have

been aware that the documents were not in the record and that they were essential

to its review of Ohiri’s motion. If the district court denied the motion without

reviewing the amended motion, it would not have exercised its duty to examine

the underlying facts and circumstances alleged by Ohiri before determining

whether the motion to amend should be granted and thus would not have

exercised its discretion at all, which is reversible error.       See Foman , 371 U.S. at

182. If the district court had not received a copy of the amended motion, it

should have notified Ohiri so that it could conduct a proper review of his request.


                                              -10-
       C.     Brady Claims

       Respondent further argues, however, that the district court did not abuse its

discretion in refusing to allow Ohiri to amend his        Brady claims because

amendment would have been futile. Respondent asserts that Ohiri’s           Brady claims

were properly rejected by the district court      5
                                                      and amendment to amplify and

support the claims would be futile because Morris’ Acceptance of Responsibility

Statement was not exculpatory and because the government had no obligation to

give Morris’ statement to Ohiri before he pleaded guilty.

       To establish a Brady violation, a defendant must show: “1) that the

prosecution suppressed evidence; 2) that the evidence was favorable to the

accused; and 3) that the evidence was material.”          United States v. McElhiney,

275 F.3d 928, 932 (10th Cir. 2001) (quotation omitted). Evidence is “material” if

there is a “reasonable probability that, had the evidence been disclosed to [the

defendant], the result of the proceeding would have been different. A ‘reasonable

probability’ is a probability sufficient to undermine confidence in the outcome.”

United States v. Bagley , 473 U.S. 667, 682 (1985). “[A] showing of materiality

does not require demonstration by a preponderance that disclosure of the

suppressed evidence would have resulted ultimately in the defendant’s acquittal . .


5
 The magistrate judge determined that Brady claims were implicit in the original §
2255 motion even though counsel Twohig did not expressly make a    Brady
argument.

                                               -11-
. .” Kyles v. Whitley , 514 U.S. 419, 434 (1995). The Report and Recommendation

concluded that Morris’ Acceptance of Responsibility Statement was not

exculpatory because Ohiri’s convictions involved the storage of materials after

Morris left GWC.

      Attached to Ohiri’s proposed amended motion is a letter Ohiri alleges he

prepared on December 15, asking for the court’s mercy and clemency at

sentencing. As to Count 21, Ohiri claimed that Morris handled the drilling-

company transaction alone, undercharged for the disposal and hid the waste

because Morris knew it would cost GWC more than what Morris had charged to

dispose of it, and that, when Ohiri discovered it, Ohiri properly disposed of it

immediately, at a loss to GWC. Additionally, the district court concluded that the

waste Morris picked up from Four Corners Drilling was “precisely [the] waste

that the Environmental Protection Agency found to be stored illegally at GWC

when it executed a federal search warrant on November 13, 1998, and that is the

subject matter of Count 21.”   Ohiri , 242 F. Supp.2d at 1042. As to Count 25,

Ohiri maintained that Morris initiated and completed the transactions from iiná bá

and TPL and hid the waste, and that this waste had been mistakenly stored offsite

during warehouse reconstruction. According to Ohiri, Cline modified the letter to

delete all of his statements indicating his actual innocence.




                                         -12-
      Ohiri agreed to plead guilty to “caus[ing] the storage” of hazardous waste

and he pleaded guilty to counts alleging that he “knowingly stored” hazardous

waste without authority to do so. We emphasize that Ohiri asserts his innocence

on all charges to which he pleaded guilty and argues that he pleaded guilty only

because Morris’ 1999 statements to the Environmental Protection Agency and the

New Mexico Environment Department accused him of involvement in illegal

conduct. Ohiri further asserts that he believed Morris would testify against him

and that he was warned by Cline that he could likely be convicted based on

Morris’ testimony. In his Acceptance of Responsibility Statement, however,

Morris asserted that Ohiri was not aware of some of the illegal activities he

engaged in while employed by GWC. Even though the illegal conduct to which

Ohiri pleaded guilty includes conduct that occurred after Morris left GWC, Ohiri

asserts that if he had been aware of Morris’ Acceptance of Responsibility

Statement, he would not have pleaded guilty to “knowingly” storing waste he

alleges was obtained by Morris and which remained hidden on GWC’s property

after Morris left the company.

      We conclude that the arguments and documents supporting Ohiri’s Motion

to Amend not considered by the district court call into question the conclusion

reached by the district court that Morris’ Acceptance of Responsibility Statement

was not exculpatory.


                                        -13-
       The district court, however, also concluded that Ohiri could not establish a

Brady violation because “the government is not required to produce all         Brady

material when a defendant pleads guilty.”         As support for this conclusion, the

district court relied on    United States v. Ruiz , 536 U.S. 622 (2002). The issue

before the Supreme Court in       Ruiz was whether the Constitution requires federal

prosecutors, before entering into a binding, “fast track” plea agreement with a

criminal defendant prior to indictment , to disclose “ impeachment information

relating to any informants or other witnesses.”       Ruiz , 536 U.S. at 625 (emphasis

added). The fast-track plea agreement at issue in        Ruiz required the defendant to

expressly waive the right to receive impeachment information, but the government

agreed to disclose “any [known] information establishing the factual innocence of

the defendant” and acknowledged its “continuing duty to provide such

information.”    Id. (quotation omitted).

       The Supreme Court noted that “impeachment evidence is special in relation

to the fairness of a trial ,” not in respect to whether a   plea is voluntary , and that

the “Constitution does not require the prosecutor to share all useful information

with the defendant.”       Id. at 629. It explained that impeachment evidence differs

from exculpatory evidence in that it is not “critical information of which the

defendant must always be aware prior to pleading guilty given the random way in

which such information may, or may not, help a particular defendant.”          Id. at 630.


                                             -14-
The Ruiz Court further noted how the defendant’s constitutional rights to receive

Brady materials had been protected: “the proposed plea agreement at issue here

specifies, the Government will provide ‘any information establishing the factual

innocence of the defendant.’”     Id. at 631.

       Ruiz is distinguishable in at least two significant respects. First, the

evidence withheld by the prosecution in this case is alleged to be exculpatory, and

not just impeachment, evidence. Second, Ohiri’s plea agreement was executed

the day jury selection was to begin, and not before indictment in conjunction with

a “fast-track” plea. Thus, the government should have disclosed all known

exculpatory information at least by that point in the proceedings. By holding in

Ruiz that the government committed no due process violation by requiring a

defendant to waive her right to impeachment evidence before indictment in order

to accept a fast-track plea, the Supreme Court did not imply that the government

may avoid the consequence of a         Brady violation if the defendant accepts an

eleventh-hour plea agreement while ignorant of withheld exculpatory evidence in

the government’s possession.      See McCann v. Mangialardi , 337 F.3d 782, 787

(7th Cir. 2003) (stating that, given     Ruiz’s distinction between exculpatory and

impeachment evidence, “it is highly likely that the Supreme Court would find a

violation of the Due Process Clause if prosecutors . . . have knowledge of a

criminal defendant’s factual innocence but fail to disclose such information to a


                                              -15-
defendant before he enters into a guilty plea”);    United States v. Persico , 164 F.3d

796, 804-05 (2d Cir. 1999) ( “The Government’s obligation to disclose Brady

materials is pertinent to the accused’s decision to plead guilty; the defendant is

entitled to make that decision with full awareness of favorable [exculpatory and

impeachment] evidence known to the Government.”).

       Under the unusual circumstances presented in this case, we conclude that

the district court abused its discretion when it refused to allow amendment of

Ohiri’s § 2255 motion to allege a    Brady or due process violation.

       D.     Ineffective Assistance Claim

       Although an ineffective assistance of counsel claim was not independently

raised in the original § 2255 motion, the magistrate judge read Ohiri’s original §

2255 motion to include a claim that Cline provided ineffective assistance by not

obtaining Morris’ agreement with the government, by not obtaining a copy of

Morris’ Acceptance of Responsibility Statement, and by coercing him into

pleading guilty. The Report and Recommendation concluded that Ohiri could not

establish constitutionally ineffective performance because he could not show that

Cline’s performance caused him to plead guilty and that “nothing in the record []

support[s] Ohiri’s conclusory assertions that he did not want to plead guilty.”     See

Hill v. Lockhart , 474 U.S. 52, 56-57, 59 (1985). As support for the conclusion

that Ohiri wanted to plead guilty, the Report and Recommendation noted that


                                            -16-
Ohiri was informed about Morris’ Acceptance of Responsibility Statement at

sentencing and, yet, “did not ask [the] Court to allow him to withdraw his plea.”

      Ohiri objected to, and sought to address, these findings and conclusions by

submitting his amended motion (which alleged additional claims of pre-trial

ineffective assistance including failures to interview any witnesses, to obtain

expert testimony, and to test the government’s physical evidence, and claims of

pre-sentencing ineffective assistance by failure to offer any mitigating evidence

and refusing to use available evidence or Ohiri’s testimony to contradict the

government’s witnesses) together with his and Cline’s affidavits. The district

court did not specifically comment about the evidentiary submissions or the

additional claims; the court simply concluded that Ohiri “has no valid claim for

ineffective assistance of counsel.”

      On appeal, Respondent again argues that Ohiri’s proposed amendment to

his § 2255 motion to add or amplify ineffective-assistance-of-counsel claims is

futile, and that the district court therefore did not abuse its discretion when it

denied his motion to amend. Respondent’s futility argument relies, in part, on the

district court’s determination that Morris’ Acceptance of Responsibility Statement

was not exculpatory; we have already concluded that this determination is

questionable and must be re-examined based on arguments Ohiri makes in his

amended motion. Further, although the district court concluded that Ohiri’s plea


                                          -17-
was made knowingly and voluntarily, that conclusion was reached without a

review of the arguments and supporting documents contained in Ohiri’s amended

§ 2255 motion.   6
                     Because the district court did not consider those arguments, we

do not have confidence in its conclusion that Ohiri’s plea was made voluntarily.

Respondent’s other arguments on futility go to the merits of Ohiri’s amended

claims and are best resolved by the district court in the first instance; particularly

in this case, where no evidentiary hearing was held. Based on the allegations and

arguments set forth in Ohiri’s amended motion, we cannot accept Respondent’s

argument that amendment would be futile. Accordingly, we see no reason not to

apply the general rule set forth in   Gillette and Espinoza-Saenz that one seeking

post-conviction relief should be allowed to timely amend his pleadings to add new

claims and supporting facts if “there is no evidence of bad faith by petitioner or

of prejudice to respondents,”     Gillette, 17 F.3d at 313, and the motion to amend is

timely filed, see Espinoza-Saenz, 235 F.3d at 505. We conclude that the district

court abused its discretion when it refused to allow Ohiri to file an amended §

2255 motion raising specific ineffective assistance of counsel claims.




6
    These documents include an affidavit from Cline.

                                           -18-
III.   Conclusion

       We reverse the district court’s order denying Ohiri’s motion to amend his

§ 2255 motion.   7
                     The matter is remanded to the district court for further

proceedings consistent with this order and judgment.


                                                      Entered for the Court


                                                      Michael R. Murphy
                                                      Circuit Judge




7
 In light of our conclusion that the district court abused its discretion when it
refused Ohiri’s request to amend his § 2255 motion, it is unnecessary for us to
address the bases on which Ohiri seeks a COA.

                                           -19-
