                                                                                                                           Opinions of the United
2000 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


8-1-2000

United States v. Thomas
Precedential or Non-Precedential:

Docket 98-3460




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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 twenty-
four. 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 end-
run 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 pre-
dated 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

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