Monday, August 06, 2012

Petitioner should have been allowed to amend petition; appeal allowed on issue of criminal history points

U.S. v. Roberts, 2012 WL 2951540 (7/20/12) (Kan.) (unpub'd) - The d. ct. abused its discretion when it refused to permit the ยง 2255 movant to amend his petition just because the proposed amendments were not signed under penalty of perjury. The d. ct. was obligated to give the movant a chance to conform to procedural requirements, even though he sought to make new claims. And the movant was entitled to a certificate of appealability and further briefing because he alleged his attorney failed to object to too many criminal history points. Two offenses were counted separately for criminal history points. But, according to the movant, there was no intervening arrest and the offenses were sentenced on the same day.