                                                                            FILED
                            NOT FOR PUBLICATION                              AUG 12 2014

                                                                         MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                       U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


FRANK A. RUST,                                    No. 11-56562

              Petitioner - Appellant,             D.C. No. 5:06-cv-00576-PA-VBK

  v.
                                                  MEMORANDUM*
DAVID B. LONG, Warden,

              Respondent - Appellee.


                    Appeal from the United States District Court
                       for the Central District of California
                     Percy Anderson, District Judge, Presiding

                             Submitted August 8, 2014**
                                Pasadena, California

Before: WARDLAW, CALLAHAN, and M. SMITH, Circuit Judges.

       Petitioner Frank A. Rust (“Rust”) appeals the district court’s denial of his

motion to amend his federal habeas petition and subsequent denial of the petition.

Rust filed a petition to vacate his sentence for assault with a deadly weapon under


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
28 U.S.C. § 2254 and sought to amend his petition to add a claim that the trial

court erred in issuing a three-strike sentence based on his prior sex offense

convictions from 1985. Because the parties are familiar with the facts and

procedural history of the case, we repeat only those facts necessary to resolve the

issues raised on appeal. We have jurisdiction pursuant to 28 U.S.C. §§ 1291 and

2253, and we affirm.

      1.     A court may deny leave to amend if the proposed amendment is futile.

Bonin v. Calderon, 59 F.3d 815, 845 (9th Cir. 1995). Rust seeks to amend his

petition to add a claim that the trial court erred in imposing a three-strike sentence

because the jury acquitted him of his sex offender registration charge. The jury’s

acquittal on the registration charge shows only that the government did not meet its

burden of proof on that charge, not that the jury necessarily found that he was not

in fact convicted for the 1985 offenses underlying the registration charge. Further,

Rust’s sentencing enhancement claim is in effect an attack on the validity of his

prior conviction, barred by Lackawanna County District Attorney v. Coss, 532 U.S.

394 (2001), and Rust does not argue, nor could he successfully argue, that any of

Lackawanna’s exceptions apply. Finally, Rust concedes that he was in fact

convicted in 1985 for rape, forced oral copulation, and kidnaping. Accordingly,

Rust’s proposed amendment is futile.


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      2.     A court may deny leave to amend based on undue delay, and a movant

must show good cause for an untimely request. Bonin, 59 F.3d at 845; Coleman v.

Quaker Oats Co., 232 F.3d 1271, 1294 (9th Cir. 2000). The district court held that

Rust engaged in undue delay and had not shown good cause based on its findings

that (1) Rust knew or should have known about his sentencing enhancement claim

when he filed his first federal habeas petition in 2004; (2) Rust did not explain why

he did not include the claim in 2004; (3) Rust had been ordered not to add any new

habeas claims when the court stayed his federal petition to allow him to exhaust

certain claims in state court; (4) Rust did not adequately explain why he waited two

years to raise the new claim in federal court; and (5) the State had been prejudiced

by the delay in resolving Rust’s habeas claims despite having fully litigated his

2004 petition. Therefore the district court did not abuse its discretion in denying

Rust’s motion to amend.

      AFFIRMED.




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