Habeas Petitioner Allowed to Amend 2255 Motion to Add IAC Claim

U.S. v. Roberts, 2012 WL 5205327 (10/23/12) (Kan.) (unpub'd) - The 10th reverses a 28 USC § 2255 denial and orders the district court to allow an amendment to the § 2255 motion to include an ineffective assistance of counsel claim, which the 10th finds plausible. The 10th ruled this way in part due to documents submitted by the parties that were not before the district court. The documents indicate that maybe counsel should have argued the defendant didn't deserve as many criminal history points as he got because of consolidation of cases. The defendant committed a robbery on May 11. The defendant committed an escape on May 12. On May 18, he was charged by complaint with the robbery. He was sentenced on the escape and robbery on the same day. The government argued the defendant escaped after being arrested for the robbery. But the documents indicated the defendant may have escaped from custody that was due to a theft offense. Consequently, there may not have been an intervening arrest between the robbery and the escape. His guideline range under that scenario would have been 41-51, instead of 51-61.