The opinion of the court was delivered by: Richard J. Holwell, District Judge
MEMORANDUM OPINION AND ORDER
Before the Court are pro se petitioner Alfred Soler's objection to  and motion for reconsideration of  Magistrate Judge Michael H. Dolinger's October 15, 2010 order denying Soler leave to amend his 28 U.S.C. § 2255 petition under Rule 15 to add a claim for "actual innocence." Judge Dolinger found that Soler's proposed amendment was (1) untimely; and (2) not rescued from its untimeliness either by relating back to the date of the original petition, or by stating a credible claim of actual innocence. Though unclear, Soler's objection seems to contend that Judge Dolinger misunderstood his underlying motion and that that motion merely requested Judge Dolinger to take judicial notice of certain facts relevant to his habeas petition. His motion for reconsideration then clarifies that Soler was, in fact, making a motion to amend to add a claim for actual innocence. Because Judge Dolinger's order is neither clearly erroneous nor contrary to law, and because any supposed misunderstanding was harmless, Soler's objection and motion for reconsideration are DENIED in their entirety and Judge Dolinger's Obtober 15, 2010 order is AFFIRMED.
On October 19, 2007, a jury found petitioner Alfred Soler guilty of Murder in the Course of a Drug Conspiracy, Use of Interstate Commerce Facilities in the Commission of Murder-for-Hire, and Using and Carrying a Firearm During a Drug Conspiracy. (05-cr-00165-RJH-2, ECF docket entry of Oct. 19, 2007.) This Court then sentenced Soler to life imprisonment on June 5, 2008. (Judgment in S2-05-Cr-165-02 at 2.) On April 28, 2009, the Second Circuit affirmed the conviction. United States v. Custodios, 325 Fed. Appx. 19 (2d Cir. 2009).
Soler brought his Section 2255 petition on April 26, 2010, alleging
several violations of his right to effective assistance of counsel.
(Pet'r's Mot. Of Aprl. 26, 2010 ("2255 Mot.") at 2-3.)*fn1
On September 14, 2010, Soler moved to amend his petition by
adding a claim of "actual innocence." The thrust of Soler's proposed
actual innocence claim was that one government witness stated under
cross-examination at trial that he had not seen Soler point or shoot a
firearm at the time of the incident. (Pet'r's Mot. to Amend at 2-4.)
Soler argued this amendment should have been allowed under Rule 15(c)
because it "relates back" to the date of his original petition. (Id.
at 4.) On October 8, 2010, the Government filed its memorandum in
opposition to Soler's motion to amend. (Resp't's Opp'n of Oct. 8, 2010
at 7.) Thereafter, the Government filed papers in opposition to Soler's petition on November 23, 2010. (Resp't's Opp'n
of Nov. 23, 2010 at 68.)
On October 15, 2010, Magistrate Judge Dolinger issued a memorandum and order denying Soler's proposed amendment. Preliminarily, Judge Dolinger noted the "arcane" question whether, considering that no responsive pleading is automatically required by the filing of a habeas petition, Soler had the unconditional right under Fed. R. Civ. P. 15(a)(1)(B) to amend his complaint at any time before a responsive pleading was actually filed. Soler v. United States, No. 10 Civ. 4342 (RJH) (MHD), 2010 WL 4456343, at *2 (S.D.N.Y. Oct. 18, 2010). Judge Dolinger, however, found it unnecessary to decide that issue because even if Soler could amend as of right, such amendment would be subject to dismissal under Rule 12(b)(6) for the same reason it would be futile under Rule 15(a)(2). Id.
Judge Dolinger then found, on the merits, that the proposed claim of "actual innocence" was time-barred because it was filed more than a year after Soler's conviction became final. Id., at *3. Judge Dolinger also found that Soler's proposed amendment did not "relate back" to the time of his original filing, and was thus not rescued from the statute of limitations under Rule 15(c). Id. Finally, Judge Dolinger found that the proposed claim of actual innocence was not otherwise excused from the statute of limitations because it was not credible. Id. at *4. Because the claim was untimely and no reason existed for excusing that untimeliness, Judge Dolinger denied the motion to amend.
On October 29, 2010, Soler filed his first response to Judge Dolinger's order. The paper is titled an "Objection" and is described as the same in multiple instances in the filing; but Soler also asks this Court to "either entertain this as a timely reconsideration motion, or in the alternative as a Notice of Appeal . . . [and] prays that this matter be reconsidered." (Pet'r's Objection at 1, 2.) Though Soler's argument is unclear, the Court understands it as contending that Judge Dolinger misread his prior motion as one to amend his pleading when Soler's actual intention in that motion was for Judge Dolinger to take judicial notice under Federal Rule of Evidence 201(d) of the facts presented therein. (Id. at 2, 4-5.) Then on November 29, 2010, Soler filed his second response to Judge Dolinger's order. This paper is titled a "Motion for Reconsideration Pursuant to [Fed. R. Civ. P.] 59(e)" (Pet'r's Reconsideration Mot. at 1); but the Court understands it as brought pursuant to Rule 72(a) and 28 U.S.C. § 636(b)(1)(A) which allow a district judge to reconsider the magistrate judge's ruling on a pretrial matter. The filing first notifies the Court, unequivocally, that Soler's amendment motion was intended to add a claim of actual innocence to his habeas petition. (Pet'r's Reconsideration Mot. at 5 ("Petitioner fully adopts the theory that his claim constitutes an actual innocence claim."); 6 ("[Petitioner] argues that the allegations contained in the petition . . . were sufficient to alert the district judge to consider actual innocence.").) It then explains that actual innocence claims are excused from habeas statutes of limitations, (id., at 8-9), and provides several pages analyzing Soler's actual innocence claims. (See generally id. at 8-14).
Soler brings two motions; an objection to Judge Dolinger's denial of leave to amend his complaint and a motion for reconsideration of that denial. The standard of review for both, however, is the same. A district court will modify or set aside any part of the magistrate judge's order that it finds "is clearly erroneous or is contrary to law." Fed. R. Civ. P. 72(a); 28 U.S.C. § 636(b)(1)(A). The reviewing court must be "left with the definite and firm conviction that a mistake has been committed," and the magistrate judge's order "may be overturned only if found to have been an abuse of discretion." Beckles v. City of New York, No. 08 Civ. 3687 (RJH) (JCF), 2010 WL 1841714, at *2 (S.D.N.Y. May 10, 2010).
B. Judge Dolinger Did Not Err in Denying Soler's Motion to Amend
It is well-settled that the Federal Rules of Civil Procedure, and specifically Rule 15 governing amendments of pleadings, apply to habeas petitions. Mayle v. Felix, 545 U.S. 644, 655 (2005) (citing 28 U.S.C. § 2242, Fed. R. Civ. P. 81(a)[(4)], and Habeas Corpus R. 11). Rule 15(a)(1) grants the movant the right to amend a pleading once as a matter of course within either twenty-one days after filing the original pleading or twenty-one days after service of a responsive pleading or Rule 12(b), (e), or (f) motion. Fed. R. Civ. P. 15(a)(1). Rule 15(a)(2), on the other hand, allows amendment only with the consent of the opposing party or of the district court. Fed. R. Civ. P. 15(a)(2). In habeas situations, "[b]efore a responsive pleading is served, pleadings may be amended once as a 'matter of course,' i.e., without seeking court leave." Mayle, 545 U.S. at 655.
Even so, however, when "the statute of limitations has expired, Rule 15 dictates that amendments are only to be granted if they 'relate back [under Fed. R. Civ. P. 15(c)] to the date of the original proceeding.'" Nieves-Andino v. Conway, No. 08 Civ. 5887 (NRB), 2010 WL 1685970, at *7 (S.D.N.Y. Apr. 20, 2010) (citing Mayle, 545 U.S. at 655); see also Veal v. United States, Nos. 01 Civ. 8033 (SCR), 97 Cr. 544 (SCR), 04 Civ. 5122 (MBM), 2007 WL 3146925, at *4 (S.D.N.Y. Oct. 09, 2007) (Robinson, J.) ("An amendment to a 28 U.S.C. § 2255 petition filed ...