Sodano v. United States, 041719 FED3, 17-3467

Docket Nº:17-3467
Opinion Judge:HARDIMAN, Circuit Judge.
Party Name:JAMES SODANO, Appellant v. UNITED STATES OF AMERICA
Attorney:Thomas A. Dreyer [Argued] Counsel for Appellant Craig Carpenito Steven G. Sanders [Argued] Mark E. Coyne Norman Gross Office of United States Attorney Counsel for Appellee
Judge Panel:Before: CHAGARES and HARDIMAN, Circuit Judges, and GOLDBERG, District Judge
Case Date:April 17, 2019
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit
 
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JAMES SODANO, Appellant

v.

UNITED STATES OF AMERICA

No. 17-3467

United States Court of Appeals, Third Circuit

April 17, 2019

NOT PRECEDENTIAL

Argued April 3, 2019

On Appeal from the United States District Court for the District of New Jersey (D.C. No. 3-14-cv-07630) District Judge: Honorable Peter G. Sheridan

Thomas A. Dreyer [Argued] Counsel for Appellant

Craig Carpenito Steven G. Sanders [Argued] Mark E. Coyne Norman Gross Office of United States Attorney Counsel for Appellee

Before: CHAGARES and HARDIMAN, Circuit Judges, and GOLDBERG, District Judge [*]

OPINION [**]

HARDIMAN, Circuit Judge.

James Sodano, litigating pro se in the District Court, filed a motion to vacate his sentence under 28 U.S.C. § 2255.1 Sodano made several arguments that his counsel was ineffective, but ineffectiveness in plea bargaining under Lafler v. Cooper, 566 U.S. 156 (2012), was not among them. After the Government answered, but within the one year period to file a motion under § 2255, Sodano filed a "Memorandum in Support" of his motion to vacate, which he "requested to be attached" to that motion. Mem. in Support at 1, No. 3-14-cv-07630 (D.N.J. Sept. 8, 2015), ECF No. 9. Sodano argued in that submission that his trial counsel was ineffective for failing to explain the risks of turning down a plea bargain.

About a year and a half after his judgment became final, Sodano filed a motion to amend to formally add the Lafler claim to his motion to vacate the sentence. The Government conceded "Sodano did raise a Lafler claim, albeit inartfully," and that "[g]iven Sodano's status as a pro se petitioner, the Government submits that his [Memorandum in Support] should be viewed as a[ ] [timely] amendment to the initial petition." Gov't Letter at 1, No. 3-14-cv-07630 (D.N.J. Mar. 21, 2017), ECF No. 18. The District Court disagreed, holding Sodano could not bypass the rules of amendment by adding new claims in a supplemental brief. Mem. Order at 1-2, No. 3-14-cv-07630 (D.N.J. Mar. 26, 2017), ECF No. 19. We granted a Certificate of Appealability on the Lafler claim only.

Consistent with the position taken...

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