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A Brownsville, Texas, firm more accustomed to defending businesses in civil actions than criminal defendants helped a federal prison inmate serving 25 years for drug trafficking get his ineffective-assistance-of-counsel claim reviewed by the trial court. In a 3-0 ruling on Feb. 11, the 5th U.S. Circuit Court of Appeals held in United States v. Zosimo Reyes Saenz that an amendment to a 28 U.S.C. � 2255 motion is not time-barred if it relates to a claim previously asserted in the original motion. Although the Antiterrorism and Effective Death Penalty Act (AEDPA), 28 U.S.C. � 2244, imposes a one-year statute of limitations for habeas corpus claims, the limit doesn’t apply if an amendment “relates back” to the original motion, says Jaime Saenz (no relation to the defendant), a Rodriguez, Colvin & Chaney partner who worked on the appeal. The appeal presented an issue of first impression for the circuit: whether the district court abused its discretion by denying Zosimo Reyes Saenz’s motion to amend the � 2255 motion as time-barred, Judge Rhesa Hawkins Barksdale, author of the 5th Circuit’s opinion, wrote for the court. The trial court’s denial of Saenz’s amended pleading without stating the legal basis for the denial or determining whether the amendment related back to the original pleading was an abuse of discretion, the 5th Circuit held. Senior Judge John M. Duhe Jr. and Judge James L. Dennis joined in the decision. A former professional boxer, Saenz was arrested for drug trafficking after being stopped on Interstate 40 near Amarillo, Texas, in 1995, says Christy Drake, an Assistant U.S. Attorney in Amarillo. Saenz was traveling from California to Oklahoma at the time of his arrest, Drake says. Because Saenz had a weapon when he was arrested, Drake says, he also was charged with possession of a firearm while engaged in drug trafficking. Following a jury trial before U.S. District Judge Mary Lou Robinson of Amarillo, Saenz was found guilty of the drug and gun charges. His conviction on the firearms charge added five years to his sentence, Drake says. Representing himself, Saenz filed his � 2255 motion in 1997, but the case languished for almost three years until Saenz moved to supplement the motion in January 2000 and stated that his trial counsel never informed him about a plea offer, the 5th Circuit’s opinion said. U.S. Magistrate Judge Clinton Averitte denied the motion to supplement, concluding that Saenz waited 28 months after learning of the plea offer to present the claim. Because habeas corpus proceedings are civil rather than criminal proceedings, Rodriguez Colvin argued that the Federal Rules of Civil Procedure should apply in Saenz’s case, says Jon K. Schmid, who also worked on the appeal. In its brief, the firm noted that Saenz claimed he did not receive a plea offer when he filed his original motion. Saenz’s wife said in a sworn statement that she didn’t mention the plea offer to him until late 1999 or early 2000, the brief said. Schmid, of counsel at Rodriguez Colvin, says the claim “got lost” in the rest of Saenz’s argument in the original motion. Saenz re-asserted the claim in his motion to supplement, the brief said. Although this is the first time the 5th Circuit has addressed the issue, other circuits have acted on it. Every circuit that has addressed the matter has reached the same conclusion: that the AEDPA’s one-year limit does not render Rule 15 of the Federal Rules of Civil Procedure inapplicable to federal habeas proceedings, Barksdale said in the opinion. The 5th Circuit remanded the case to the trial court for a review of the amendment. Rodriguez Colvin’s Jaime Saenz says the appeals court addressed only the procedural issue. “The district court will decide whether there’s merit to his [Zosimo Saenz's] argument,” he says. Drake says Robinson has issued an order for Saenz to be brought back before her for a March 21 hearing. Eduardo Rodriguez, senior partner in Rodriquez Colvin, got the firm involved in the Saenz case through Vinson & Elkins’ Texas Appointment Plan, Schmid says. Scott Atlas, a partner in Vinson & Elkins’ Houston office, says the pro bono program, which was started in late 1982, enables attorneys who practice civil law to assist with criminal appeals. Atlas notes that about 150 firms around the state participate in the program, agreeing to handle at least one appeal before the 5th Circuit every other year.

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