Opinion
Case No. 3:09-cr-049-1 Civil Case No. 3:13-cv-223
04-23-2014
UNITED STATES OF AMERICA, Plaintiff, v. GREGORY CHEW, Defendant.
District Judge Thomas M. Rose
Magistrate Judge Michael R. Merz
DECISION AND ORDER GRANTING MOTION TO AMEND
This § 2255 case is before the Court on Defendant's Motion to Amend his § 2255 Motion to Vacate "to include a previously unpleaded claim that his trial attorney, Jill R. Flagg ("Ms. Flagg") prevented him from exercising his right to testify in his own defense. . . ." (Memorandum, Doc. No. 214, PageID 5256.) The United States has filed a Response in Opposition (Doc. No. 215) and Chew has filed a Reply in Support (Doc. No. 218).
The parties agree that Fed. R. Civ. P. 15 governs the instant Motion and the Court agrees that is appropriate under Rule 12 of the Rules Governing § 2255 Cases and Mayle v. Felix, 545 U.S. 644, 655 (2005).
Defendant relies in part on Fed. R. Civ. P. 15(a)( Doc. No. 214, PageID 5265-67), but that portion of the Rule applies, by its own terms, to "Amendments Before Trial." Instead, the Motion is governed by Fed. R. Civ. P. 15(b) which reads:
(b) Amendments During and After Trial.
(1) Based on an Objection at Trial. If, at trial, a party objects that evidence is not within the issues raised in the pleadings, the court may permit the pleadings to be amended. The court should freely permit an amendment when doing so will aid in presenting the merits and the objecting party fails to satisfy the court that the evidence would prejudice that party's action or defense on the merits. The court may grant a continuance to enable the objecting party to meet the evidence.
(2) For Issues Tried by Consent. When an issue not raised by the pleadings is tried by the parties' express or implied consent, it must be treated in all respects as if raised in the pleadings. A party may move--at any time, even after judgment--to amend the pleadings to conform them to the evidence and to raise an unpleaded issue. But failure to amend does not affect the result of the trial of that issue.
The parties are also in agreement that Chew had a constitutional right to testify in his own behalf at trial. (Memorandum, Doc. No. 214, PageID 5256, citing Rock v. Arkansas, 483 U.S. 44 (1987));(Response, Doc. No. 215, PageID 5273). That right is personal to a defendant and can only be waived by him or her, not by his or her attorney. United States v. Webber, 208 F.3d 545, 550 (6 Cir. 2000), citing Rock, 483 U.S. at 52 and United States v. Joelson, 7 F.3d 174, 177 (9Cir. 1993).
The Government points out this claim is not raised or even suggested by the original Motion to Vacate, despite its length and the complexity of the allegations made (Response, Doc. No. 215, PageID 5273). Nor was there any request by Defendant to amend before the hearing. Id. Government counsel asserts the first time he learned of this issue was during the direct examination of Defendant on February 21, 2014. Id. Chew does not claim he made any request to amend before the hearing, but instead relies on the consent implicit in allowing Chew to testify on this issue and actively cross-examining him on it (Reply, Doc. No. 218, PageID 5333).
The Government asserts that it "has never expressly or by implication consented to any amendment of the § 2255 motion." (Response, Doc. No. 215, PageID 5273.) However, counsel cites no place in the transcript of the proceedings where any objection was made to trying this issue (See Response, passim).
Defendant asserts that the amendment, if allowed now, would relate back to the date of the original filing (Memorandum, Doc. No. 214, PageID 5267-69). The Government makes no response to that assertion (Response, passim). Even if the United States would have had a statute of limitations defense to this added claim because of the time that has expired since the conviction became final, the statute of limitations is an affirmative defense which is forfeited if not pled or raised by a respondent. Day v. McDonough, 547 U.S. 198 (2006).
Even though Chew gave no notice of his intention to raise this claim prior to the hearing, the Government was not prejudiced: Ms. Flagg and Mr. Chew, the relevant witnesses on the issue were present and able to be examined. The issue is not so complex as to have required extra time to prepare and in any event the Government did not request any continuance to prepare for this claim, but instead thoroughly cross-examined the Defendant on this point.
Accordingly, the motion to amend is GRANTED and the Magistrate Judge will render a report and recommendation on the basis of the evidence taken on this claim as well as the other issues that were tried.
Michael R. Merz
United States Magistrate Judge