                                                           [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT
                        ________________________           FILED
                                                  U.S. COURT OF APPEALS
                               No. 09-13062         ELEVENTH CIRCUIT
                                                        JUNE 18, 2010
                           Non-Argument Calendar
                                                         JOHN LEY
                         ________________________
                                                          CLERK

                    D. C. Docket No. 05-00414-CV-CAR-5

EDWARD PALMORE,



                                                            Petitioner-Appellant,

                                    versus

PATRICIA A. HICKS,

                                                          Respondent-Appellee.


                         ________________________

                 Appeal from the United States District Court
                     for the Middle District of Georgia
                      _________________________

                                (June 18, 2010)

Before BLACK, PRYOR and FAY, Circuit Judges.

PER CURIAM:

     Edward Palmore, a Georgia state prisoner serving a 20-year sentence for
cruelty to children, appeals from the magistrate judge’s order denying his pro se

motion to amend his petition under 28 U.S.C. § 2254 by adding two claims for

relief. On appeal, Palmore, proceeding pro se, argues that the magistrate abused

his discretion in denying Palmore’s motion to amend because, pursuant to

Fed.R.Civ.P. 15(a), he had the right to amend his § 2254 petition as a matter of

course before the state filed a response.

      For the reasons set forth below, we affirm.

                                            I.

      In October 2005, Palmore, proceeding pro se, filed a petition for habeas

relief under 28 U.S.C. § 2254 in the district court. Palmore raised the following

eight claims: (1) police officers violated his Fourth Amendment rights by

conducting a warrantless search of his house; (2) the trial court failed to hold a

hearing regarding his motion to suppress; (3) trial counsel was ineffective for

failing to pursue his motion to suppress, which previously had been filed on

Palmore’s behalf by a different attorney; (4) a government witness’s testimony

included an opinion that infringed upon the jury’s province as the fact-finder; (5) a

government witness gave perjured testimony; (6) documents needed to impeach a

state witness were not available; (7) the trial court permitted Palmore’s original

trial attorney to withdraw, thus denying his right to counsel; and (8) irrelevant and



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prejudicial material, which had not been admitted into evidence, was presented to

the jury (“claims 1-8”).

        In December 2005, before the state filed a response, Palmore filed a motion

to amend his § 2254 petition, asserting that he wished to add the following two

claims: (9) he was denied access to the courts while in county prison because the

prison did not have a legal library (“claim 9”); and (10) trial counsel was

ineffective because, during his representation of Palmore, counsel was suffering

from prostate cancer, and was medicated and in a great deal of pain (“claim 10”).

The magistrate judge entered an order denying Palmore’s motion to amend, stating

that:

        [A] review of [the proposed] amendment reveals that the claims
        presented are not appropriate for consideration in a habeas corpus
        petition as [Palmore] alleges violations of his constitutional rights and
        does not attack his sentence. Therefore, if [Palmore] wishes to pursue
        said claims he must file a [new] lawsuit pursuant to 42 U.S.C. § 1983.

        Thereafter, Patricia Hicks, Warden of the Augusta State Medical Prison,

answered Palmore’s petition and denied that he was entitled to relief under § 2254.

After Hicks filed her answer, along with a supporting brief and exhibits, Palmore

submitted a brief in support of his § 2254 petition. In this brief, Palmore provided

details concerning the claims that he initially raised in his § 2254 petition. He did

not object to or otherwise address the magistrate’s order denying his motion to



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amend. Palmore also filed objections to Hicks’s answer, in which he further

discussed the merits of two of the eight claims that he raised in his initial § 2254

petition. Again, Palmore did not object to or address the magistrate’s denial of his

motion to amend.

      The magistrate judge entered a report and recommendation, recommending

that the court deny Palmore’s § 2254 petition. Palmore filed objections to the

report and recommendation, in which he did not argue that the magistrate erred by

denying his motion to amend. In addition, Palmore also filed a motion for

reconsideration, in which he asked that the court reconsider a previous order

denying his request for an evidentiary hearing as to his Fourth Amendment claims

(claims 1 and 2), as well as his claims that he was denied counsel and did not have

access to impeachment material (claims 6 and 7). In this motion, as in his other

pleadings, Palmore’s did not address the magistrate’s order denying his motion to

amend.

      The district court entered an order adopting the magistrate’s report and

recommendation, and denying relief under § 2254. We subsequently granted a

COA as to the following issue: “Whether the district court erred by failing to grant

[Palmore’s] motion to amend his habeas petition, brought pursuant to 28 U.S.C.

§ 2254.”



                                           4
                                          II.

      Appellate review is limited to the issue or issues specified in the COA.

Murray v. United States, 145 F.3d 1249, 1250-51 (11th Cir. 1998); see 28 U.S.C.

§ 2253(c)(3). Procedural issues that must be resolved before we can address the

underlying claim specified in the COA are presumed to be encompassed in the

COA. McCoy v. United States, 266 F.3d 1245, 1248 n.2 (11th Cir. 2001).

      Under Fed.R.Civ.P. 72(a), where a magistrate judge enters a non-dispositive

pretrial ruling, a party must object to the ruling within a specified time period, and

“may not assign as error a defect in the order not timely objected to.” Fed.R.Civ.P.

72(a); see Williams v. Chatman, 510 F.3d 1290, 1293 (11th Cir. 2007) (noting that

the Federal Rules of Civil Procedure apply to habeas proceedings to the extent that

they are not inconsistent with the statutes that govern habeas proceedings). An

order disposing of a motion to amend is a non-dispositive pretrial ruling. See 28

U.S.C. § 636(b)(1)(A) (providing that a magistrate judge may determine any

pretrial matter except for those specifically enumerated in the statute); Schur v.

L.A. Weight Loss Centers, Inc., 577 F.3d 752, 760 & n.6 (7th Cir. 2009) (noting

that, for purposes of Fed.R.Civ.P. 72(a) a motion to amend is a non-dispositive

pretrial matter); Daley v. Marriott Int’l, Inc., 415 F.3d 889, 893 n.9 (8th Cir. 2005)

(same); Cont’l Cas. Co. v. Dominick D’Andrea, Inc., 150 F.3d 245, 251 (3d Cir.



                                           5
1998) (same); Pagano v. Frank, 983 F.2d 343, 346 (1st Cir. 1993) (same). Where

a party failed to object to a magistrate’s ruling regarding a non-dispositive pretrial

matter, the party has forfeited his right to challenge the ruling on appeal. Smith v.

Sch. Bd. of Orange County, 487 F.3d 1361, 1365 (11th Cir. 2007); see also Farrow

v. West, 320 F.3d 1235, 1249 n.21 (11th Cir. 2003) (applying this rule in the

context of reviewing pleadings filed by a pro se litigant).

       Here, because the issue of whether Palmore forfeited his right to appeal from

the magistrate’s denial of his motion to amend is a procedural issue that must be

resolved before we reach the underlying question of whether the magistrate abused

its discretion by denying the motion, we construe the COA to include this issue.

Because a magistrate’s disposition of a motion to amend constitutes a non-

dispositive pretrial ruling, Palmore was required to object to the magistrate’s denial

of his motion to amend to preserve this argument for appeal. Palmore failed to

object to the magistrate’s order and, as result, he forfeited his right to raise this

issue on appeal. Accordingly, we affirm.

       AFFIRMED.




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