United States District Court, D. Idaho
MEMORANDUM DECISION AND ORDER
LYNN WINMILL, U.S. DISTRICT COURT JUDGE
the Court is Movant Uriel Jose Ortega's Motion for Leave
to Amend his pending § 2255 motion. See Civ.
Dkt. 15. For the reasons explained below, the
Court will grant the motion. The Court will also
retroactively grant two pending motions for extensions.
See Civ. Dkts. 36, 42.
2015, Ortega pleaded guilty to conspiracy to distribute
methamphetamine. The Court denied Ortega's motion to
withdraw his guilty plea and sentenced him to 264 months'
imprisonment. Ortega appealed his conviction and sentence. In
April 2017, the Ninth Circuit dismissed the appeal in light
of the appeal waiver in the plea agreement. See Apr. 24,
2017 Order, Crim. Dkt. 90. In dismissing the appeal, the
court noted that “[t]he record does not support
Ortega's contentions that his plea was involuntary or
that the government breached the plea agreement.”
Id. See also Dec. 15, 2017 Mandate, Crim. Dkt. 93.
after the Ninth Circuit issued its mandate, Ortega filed a
motion under 28 U.S.C. § 2255. See Civ. Dkt. 1.
He amended that motion in March 2018, see Civ. Dkt.
7, and he now asks to amend the motion a second time.
See Civ. Dkt. 15. At the time he filed the pending
motion to amend, the government had not yet responded to the
underlying § 2255 motion, and the one-year deadline for
filing a § 2255 motion had not expired. See 28
U.S.C. § 2255(f).
of the Federal Rules of Civil Procedure permits courts to
grant a party leave to amend its pleading at any time, and
encourages them to do so “freely” if
“justice so requires.” Fed.R.Civ.P. 15(a)(2);
see also 28 U.S.C. § 2242; Rule 12, Rules
Governing § 2255 Proceedings. In determining whether to
grant leave to amend under Rule 15, courts
consider such factors as “bad faith, undue delay,
prejudice to the opposing party, futility of the amendment,
and whether the party has previously amended his
pleadings.” Bonin v. Calderon, 59 F.3d 815,
845 (9th Cir.1995).
Ortega wishes to add another claim that his counsel was
ineffective. He now says his counsel was ineffective by
failing to (1) review lab reports regarding the purity of the
methamphetamine and (2) provide copies of those lab reports
to Ortega. Ortega says this is “problematic”
because several courts, including this Court, have recently
expressed concerns as to whether purity levels in
methamphetamine are an accurate indicator of culpability and
defendant's role in the offense. Motion to
Amend, Civ. Dkt. 15, at 3 (page 58(a) per Ortega's
pagination). Ortega argues that, at a minimum, he should be
resentenced and that during any resentencing, he should be
allowed to argue that the purity of the methamphetamine is
not indicative of his role in the offense. Id. at 5
(page 58(e) per Ortega's pagination).
Court will allow Ortega to amend his motion. Most
significantly, the government has not demonstrated prejudice.
As Ortega points out, the Court has allowed the government
numerous extensions of time in which to respond to
Ortega's motion, and at the time he filed his current
motion to amend, the government had not yet responded.
See generally Eminence Capital, LLC v. Aspeon, Inc.,
316 F.3d 1048, 1052 (9th Cir. 2003) (“it is the
consideration of prejudice to the opposing party that carries
the greatest weight”). Substantively, in the interest
of judicial economy and efficiency, the Court will evaluate
the merits of Ortega's new claim in the context of
evaluating the other claims in Ortega's underlying 2255
motion. The briefing on that motion ripened on April 12, 2019
and will be addressed in due course. The parties need not
file any additional briefing unless invited to do so by the
Movant Uriel Jose Ortega's Motion to Amend (Dkt. 15) is
government's Motion for an Extension (Dkt. 36) is