                                                                            FILED
                            NOT FOR PUBLICATION                              APR 29 2013

                                                                        MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



SHABONDY LAMAR SIMPSON,                          No. 11-15400

              Petitioner - Appellant,            D.C. No. 2:05-cv-00640-JAM-
                                                 DAD
  v.

M. EVANS, Warden,                                MEMORANDUM *

              Respondent - Appellee.



                    Appeal from the United States District Court
                        for the Eastern District of California
                     John A. Mendez, District Judge, Presiding

                       Argued and Submitted March 15, 2013
                             San Francisco, California

Before: NOONAN, FISHER and NGUYEN, Circuit Judges.

       Shabondy Simpson, a state prisoner, appeals the district court’s denial of his

28 U.S.C. § 2254 habeas petition, which the district court construed as a motion for

leave to amend Simpson’s prior habeas petition pursuant to Woods v. Carey, 525

F.3d 886 (9th Cir. 2008). We have jurisdiction under 28 U.S.C. §§ 1291 and 2253,



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
and affirm on an alternative ground. See Ybarra v. McDaniel, 656 F.3d 984, 992

n.3 (9th Cir. 2011) (explaining that we may affirm the denial of habeas relief on

any ground supported by the record).

      1. Although Simpson filed his petition after his notice of appeal had been

filed, the district court retained jurisdiction to deny a timely-filed motion for relief.

See Fed. R. Civ. P. 62.1(a)(2). We thus have jurisdiction to consider this appeal.

      2. The district court abused its discretion in denying Simpson’s motion on

the basis of delay, his lack of diligence, and prejudice to the state. In adopting the

magistrate judge’s recommendation to deny Simpson’s constructive motion for

leave to amend, the district court failed to consider the fact that Simpson had not

previously been afforded an opportunity to amend his petition. See Caswell v.

Calderon, 363 F.3d 832, 837 (9th Cir. 2004) (listing factors relevant to

consideration of a motion for leave to amend a complaint); Maxwell v. Lucky

Const. Co., 710 F.2d 1395, 1399 (9th Cir. 1983) (“Failure to consider pertinent

factors constitutes an abuse of discretion.”).

      Furthermore, the district court’s conclusion that Simpson did not act

diligently is illogical and unsupported by the record. It was unreasonable to fault

Simpson for the time he spent in state court exhausting his claim under

Cunningham v. California, 549 U.S. 270 (2007), which he was required to do


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under AEDPA. See 28 U.S.C. § 2254(b). The district court’s reliance on

Simpson’s ability to correctly answer a question about the procedural history of his

postconviction litigation was also unwise. As Woods recognizes, pro se habeas

petitioners are often not well-versed in the complex procedural rules that govern

federal habeas petitions. For this reason, “[a] document filed pro se is ‘to be

liberally construed,’ and a ‘ pro se complaint, however inartfully pleaded, must be

held to less stringent standards than formal pleadings drafted by lawyers.’”

Woods, 525 F.3d at 889–90 (quoting Erickson v. Pardus, 551 U.S. 89, 94 (2007)

(per curiam)). It was further unreasonable to fault Simpson for failing to include

his Cunningham claim in his July 2008 motion to amend. The Cunningham claim

was not exhausted in state court until the California Supreme Court denied his state

habeas petition on July 16, 2008—the day after he mailed his motion to amend.

      Finally, any prejudice to the state that may have resulted because Simpson’s

initial habeas petition was resolved on the merits at the time the district court ruled

on the motion to amend could have been prevented by the district court’s prompt

consolidation of Simpson’s first and second habeas petitions as required by




                                           3
Woods.1 Simpson filed his second habeas petition in November 2008—eight

months before his initial habeas petition was denied on the merits. Additionally, at

the time Simpson moved to add the Cunningham claim, Simpson’s July 2008

motion to amend was pending before the district court, and that motion was not

ruled on until four months after Simpson filed his second habeas petition. Had the

two petitions been timely consolidated, the district court could have ruled on both

motions at the same time. Tellingly, the court did not deny the earlier motion on

the ground that Simpson’s delay in filing it had prejudiced the state.

      3. We nonetheless affirm the district court on the alternative ground that

amendment would have been futile because Simpson’s proposed Cunningham

claim was time-barred. As relevant here, the one-year statute of limitations runs

from the latest of either “the date on which the judgment became final by the


      1
         To the extent the district court believed that responsibility for the delay in
consolidation could be placed on Simpson because he failed to indicate on his
second habeas petition that he currently had a habeas case pending, we remind the
district court of the affirmative duty imposed on district courts by Woods—a duty
grounded in courts’ obligation to liberally construe documents filed by pro se
litigants. 525 F.3d at 889–90. Simple administrative procedures that have already
been adopted by other districts in this circuit—assigning all habeas petitions by a
particular inmate to the same judicial officers—could prevent the delay in
consolidation that occurred in this appeal. See D. Ariz. Loc. R. 3.7(e); C.D. Cal.
Gen. Order 08-05 § 2.2; id. Gen. Order 05-07 at 8–9; N.D. Cal. Gen. Order
44(D)(5). In light of the affirmative duty imposed by Woods, the district court
could similarly adopt procedures that facilitate expedient consolidation of petitions
filed by pro se petitioners.

                                           4
conclusion of direct review,” 28 U.S.C. § 2244(d)(1)(A), or “the date on which the

constitutional right asserted was initially recognized by the Supreme Court, if the

right has been newly recognized by the Supreme Court and made retroactively

applicable to cases on collateral review,” id. § 2244(d)(1)(C).

      Simpson’s sentence became final on April 22, 2003, and excluding periods

of statutory and equitable tolling, he waited more than one year after that date

before seeking relief under Cunningham. Therefore, Simpson’s proposed claim

was timely only if Cunningham itself “newly recognized” the right that he sought

to assert and applies retroactively. Yet, in Butler v. Curry, 528 F.3d 624, 628 (9th

Cir. 2008), we held that Cunningham did not announce a new rule of law because

its result “was clearly dictated by the Supreme Court’s [prior] Sixth Amendment

case law, in particular by Blakely v. Washington, 542 U.S. 296 (2004).” Because

“the Supreme Court announced a new rule in Blakely v. Washington,” it “does not

apply retroactively to a conviction that was final before that decision was

announced.” Schardt v. Payne, 414 F.3d 1025, 1038 (9th Cir. 2005). Simpson

waited more than one year after Blakely was decided before seeking relief.

Consequently his proposed claim is time-barred.

      AFFIRMED.




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