FISHER, Chief Judge.
This is a motion to amend respondents' answer to a petition for a writ of habeas corpus. The court has considered the matter on the papers submitted by the parties pursuant to Fed. R. Civ. P. 78.
Petitioner, James Coleman, incarcerated at Rahway State Prison, seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254. On February 2, 1985, the Superior Court of New Jersey, Law Division, Passaic County, entered a judgment of conviction against petitioner on six counts of armed robbery, as defined by N.J.S.A. 2C:12-1(b)(2). Coleman appealed his conviction to the appellate division which affirmed his conviction. On January 23, 1984, the New Jersey Supreme Court denied his petition for certification and dismissed his appeal pursuant to N.J. Ct. R. 2:12-9.
Coleman filed a petition for habeas corpus relief on November 5, 1984, alleging six violations of his due-process and equal-protection rights secured by the United States Constitution. An opinion was handed down on April 22, 1985, denying Coleman's petition for a writ of habeas corpus. On July 2, 1985, the court issued an amended opinion in this matter superceding in its entirety the original April 22 opinion.
Coleman filed another petition for a writ of habeas corpus on September 11, 1985, to which respondents filed an answer based upon the April 22 opinion. Respondents' attorney was new to the case and not aware of the superceding amended opinion until he received a copy of a letter from petitioner to the court stating that respondents had erroneously relied on the April 22 opinion. Respondents filed this motion for leave to amend the answer basing it upon the July 2 opinion and also adding a third affirmative defense.
Rule 11 promulgated under 28 U.S.C. § 2254 states that "the Federal Rules of Civil Procedure, to the extent that they are not inconsistent with these rules, may be applied, when appropriate, to petitions filed under these rules." It has been held that federal habeas corpus proceedings are civil and not criminal in nature. They are governed by the Federal Rules of Civil Procedure. Further, the writ of habeas corpus is not a proceeding in the original criminal prosecution, but an independent civil suit. United States ex rel. Gaugler v. Brierley, 477 F.2d 516, 523 (3d Cir. 1973).
Rule 15(a) of the Federal Rules of Civil Procedure states that
[a] party may amend his pleading once as a matter of course at any time before a responsive pleading is served. . . . Otherwise a party may amend his pleading only by leave of court or by written consent of the adverse party; and leave shall be freely given when justice so requires.