United States District Court, W.D. New York
DECISION AND ORDER
HONORABLE RICHARD J. ARCARA UNITED STATES DISTRICT JUDGE.
Rico Vendetti seeks leave to amend his pending motion to
vacate, which he filed pursuant to 28 U.S.C. § 2255.
Petitioner seeks to add to two of his grounds for relief the
allegation that “[c]ounsel withheld esculpatory [sic]
medical evidence.” See Docket No. 677 at 8,
11. On September 7, 2017, the Court ordered Petitioner to
show cause why his proposed amendment should not be denied as
untimely, given that it was filed after 28 U.S.C. §
2255's state of limitations expired. Petitioner has filed
a response. See Docket No. 685.
issue before the Court is whether Petitioner's proposed
amendment “relates back” to his timely §
2255 motion. Fed.R.Civ.P. 15(c)(2). “[A]n amended
habeas petition . . . does not relate back . . . when it
asserts a new ground for relief supported by facts that
differ in both time and type from those the original pleading
set forth.” Mayle v. Felix, 545 U.S. 644, 650
(2005). In other words, a proposed amendment must arise
“from the same core facts alleged in the original
petition, not those related generally to petitioner's
trial, conviction, or sentence.” Gibson v.
Artus, 407 F. App'x 517, 519 (2d Cir. 2010).
Second Circuit has suggested that a proposed amendment does
not “relate back” simply because it seeks
relief on the same ground as the original petition-for
example, a proposed amendment that seeks to add additional
ineffective assistance of counsel claims does not
“relate back” merely because the original
petition also contained an ineffective assistance of counsel
claim. See id. See also Ozsusamlar v. United
States, Nos. 10-CV-6655(KMW)(HBP), 02-CR-763(KMW), 2013
WL 4623648, at *4 (S.D.N.Y. Aug. 29, 2013) (“Proposed
amendments must satisfy the Mayle standard even
where both the original claims and the new claims are for
ineffective assistance of counsel.”)Put differently,
to “relate back, ” “the original and
amended petitions” must “state claims that are
tied to a common core of operative facts.”
Mayle, 545 U.S. at 664.
Petitioner's proposed amendment in the generous light to
which pro se pleadings are entitled, Petitioner has
shown that his proposed amendment “relates back”
to two grounds for relief raised in his original § 2255
motion. The first ground for relief in Petitioner's
original § 2255 motion-ineffective assistance of
counsel-alleges that his attorney was constitutionally
ineffective because he allegedly failed to file motions and
“multiple appeals”; because he allegedly failed
to “properly advise [Petitioner] as to plea nor its
impact”; because he allegedly failed to investigate the
underlying facts of the case; and because he allegedly
coerced or manipulated Petitioner into pleading guilty.
See Docket No. 677 at 8. Although it is hard to
generalize the “operative facts, ”
Mayle, 545 U.S. at 664, of Petitioner's first
claim, the claim alleges both that his attorney was negligent
and-importantly here-that he coerced Petitioner into pleading
guilty. A claim that Petitioner's attorney withheld
exculpatory evidence in order to help make Petitioner plead
guilty arises from the same core of operative facts as the
first claim in Petitioner's original § 2255 motion:
Both claims concern Petitioner's discussions with his
attorney about whether to plead guilty, and both concern the
manner in which Petitioner's counsel allegedly persuaded
Petitioner to plead guilty.
has likewise shown that his proposed amendment relates back
to the facts alleged in his fourth ground for relief, i.e.,
that he did not enter into his plea, as Petitioner puts it,
“knowingly and willfully.” Docket No. 677 at 11.
Petitioner's claims about the voluntariness of his plea
are of the same type as those concerning the effectiveness of
his counsel. A claim that Petitioner's attorney withheld
exculpatory evidence in order to to convince Petitioner to
plead guilty arises from the same operative facts as the
allegations in Petitioner's original § 2255 motion.
motion to amend (Docket No. 672) is therefore granted.
Petitioner's proposed amended § 2255 motion (Docket
No. 677) is deemed the operative pleading and supersedes
Petitioner's original § 2255 motion. See L.
Civ. R. 15(a). Further, the Government's motion to compel
(Docket No. 678) is granted. On or before December 1, 2017,
Petitioner's former counsel, Matthew Lembke, Esq., shall
respond to the allegations set forth in Grounds 1 and 4 of
Petitioner's amended § 2255 motion. See
Docket No. 670. The Government's answer and memorandum of
law shall be filed on or before December 22, 2017. Petitioner
shall have 20 days upon receipt of the Government's
answer to file a response and memorandum of law.
 Several courts of appeals have adopted
this approach. See, e.g., United States v.
Gonzalez, 592 F.3d 675, 680 (5th Cir. 2009); United
States v. Hernandez, 436 F.3d 851, 858 (8th Cir. 2006);
United States v. ...