                            NOT FOR PUBLICATION

                     UNITED STATES COURT OF APPEALS                          FILED
                            FOR THE NINTH CIRCUIT                             MAR 16 2011

                                                                          MOLLY C. DWYER, CLERK
                                                                           U .S. C O U R T OF APPE ALS

WINFRED HOWARD LAVIRGNE,                         No. 09-17365

              Petitioner - Appellant,            D.C. No. 2:09-cv-00649-LKK-DAD

  v.
                                                 MEMORANDUM *
JAMES A. YATES,

              Respondent - Appellee.



                  Appeal from the United States District Court
                      for the Eastern District of California
               Lawrence K. Karlton, Senior District Judge, Presiding

                             Submitted March 14, 2011 **
                              San Francisco, California

Before: WALLACE, NOONAN, and CLIFTON, Circuit Judges.

       Petitioner-Appellant Winfred Howard Lavirgne, a California state prisoner,

appeals from the district court’s denial of his petition for a writ of habeas corpus.

We have jurisdiction pursuant to 28 U.S.C. § 2253.


        *
             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).
      Lavirgne’s argument that he “had an absolute right to amend [his] habeas

petition once” falls outside the scope of the certificate of appealability. Hiivala v.

Wood, 195 F.3d 1098, 1103 (9th Cir. 1999) (per curiam).

      We choose not to expand the scope of the certificate of appealability because

Lavirgne has not demonstrated a “‘substantial showing of the denial of a

constitutional right.’” Id. at 1104, quoting 28 U.S.C. § 2253(c)(2). Prior to a

summary dismissal by the district court, a habeas petitioner must be afforded

notice and an opportunity to be heard. Herbst v. Cook, 260 F.3d 1039, 1043 (9th

Cir. 2001). Lavirgne was given notice and an opportunity to be heard regarding

the sua sponte dismissal of his habeas petition. In response, Lavirgne failed to

present any colorable argument why the statute of limitations on his habeas

petition should be tolled or how the statute of limitations was improperly

calculated by the California Superior Court. Neither does he identify on appeal

anything other than hypothetical speculation to support the proposition that his

petition was not untimely. Lavirgne’s argument that he must also be given an

opportunity to amend his habeas petition has no support in the caselaw.

      AFFIRMED.




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