                                                                                                                           Opinions of the United
2007 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


12-13-2007

USA v. Fontanez
Precedential or Non-Precedential: Non-Precedential

Docket No. 98-1920




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Recommended Citation
"USA v. Fontanez" (2007). 2007 Decisions. Paper 66.
http://digitalcommons.law.villanova.edu/thirdcircuit_2007/66


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                                                                   NOT PRECEDENTIAL


                   IN THE UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT


                                       NO. 98-1920


                            UNITED STATES OF AMERICA

                                             v.

                                 AUDELIZ FONTANEZ,
                                a/k/a ALEX FONTANEZ,
                          a/k/a ALEX POLLOCK FONTANEZ

                                    Audeliz Fontanez
                                       Appellant



                    On Appeal From the United States District Court
                       For the Eastern District of Pennsylvania
                        (D.C. Crim. Action No. 96-cr-00086-1)
                     District Judge: Hon. Clarence C. Newcomer


                    Submitted Pursuant to Third Circuit LAR 34.1(a)
                                  December 11, 2007

                       BEFORE: RENDELL and STAPLETON,
                      Circuit Judges, and IRENAS, District Judge*

                           (Opinion Filed: December 13, 2007)




*Hon. Joseph E. Irenas, Senior District Judge for the District of New Jersey, sitting by
designation.
                               OPINION OF THE COURT




STAPLETON, Circuit Judge:

       We have before us only No. 98-1920. On January 30, 2002, we issued a

Certificate of Appealability. It limited proceedings to the following:

       “whether the District Court abused its discretion in failing to allow
       Petitioner to amend his 28 U.S.C. Section 2255 motion. In addition . . . the
       parties should address (a) when, in light of the withdrawal and subsequent
       reinstatement of the direct appeal, did Petitioner’s ‘judgment of conviction
       become [] final’ for purposes of the statute of limitations; and (b) whether
       Petitioner’s motion to amend was timely.”

       The motion to amend referred to in the Certificate of Appealability is the motion

filed August 27, 1998. In that motion, Fontanez said only the following with respect to

the issues he sought to place before the Court by amendment:

       “There are significant issues that have not been raised by counsel, of record,
       in the instant petition which petitioner Fontanez vehemently believes will
       conclusively support the ‘ineffective-assistance-of-counsel’ claim and will
       further support a vacation of the Judgment of Conviction insofaras (sic) the
       verdict was rendered on evidence that was unconstitutionally sound.
                                             ***
       Petitioner Fontanez’s most significant issue that must be posited before this
       Court is ‘actual innocence’ and counsel has failed to raise same, with
       support of evidence that has not been presented before to this Court in
       previous proceeding(s).”

       On October 6, 2004 we denied a motion to expand the Certificate of Appealability

in No. 98-1920. We ruled at that time that Fontanez’s “new perjury claims [were] beyond


                                             2
the scope of this appeal” and that these “perjury claims had not been raised in the [District

Court] at the time of the 98-1920 appeal.” The issue before us thus has nothing to do

with the perjury claims Fontanez currently seeks to pursue. Rather, the sole issue before

us is whether the District Court abused its discretion in not granting permission to amend

in response to Fontanez’s August 27, 1998 filing. We hold that it did not.

       While Fed. R. Civ. P. 15 provides that leave to amend “shall be freely granted

when justice so requires,” one seeking to amend must provide the Court with sufficient

information to allow it to determine whether justice does so require. The Court, for

example, must be able to determine such matters as whether the amendment sought would

be futile or unduly prejudicial to the opponent. When the application to amend provides

only conclusory statements like the “evidence . . . was unconstitutionally sound” and

“actual innocence,” the Court is not able to fulfill its responsibilities under Fed. R. Civ. P.

15, and it does not abuse its discretion if it denies the application.1

       The judgment of the District Court will be affirmed.




   1
    Fontanez’s counsel, in his Anders brief, does not address when petitioner’s judgment
of conviction became final. Fontanez, in his supplemental brief in response to counsel’s
Anders brief, asserts that his judgment of conviction became final on October 19, 2001,
while the United States asserts that petitioner’s conviction became final on November 29,
2001. Neither addresses whether the 1998 motion was timely. We see no value in
pursuing that question further because we find that the District Court did not abuse its
discretion in denying that motion.
                                               3
