                                                                                FILED
                            NOT FOR PUBLICATION                                  FEB 23 2011

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



                            FOR THE NINTH CIRCUIT


ROY D. MORAGA;                                    No. 08-17721

              Petitioner - Appellant,             D.C. No. 3:03-cv-00220-LRH-
                                                  RAM
  v.

E. K. MCDANIEL; et al.,                           MEMORANDUM*

              Respondents - Appellees.


                    Appeal from the United States District Court
                             for the District of Nevada
                     Larry R. Hicks, District Judge, Presiding

                           Submitted February 18, 2011**
                             San Francisco, California

Before: TALLMAN and CALLAHAN, Circuit Judges, and CONLON, District
Judge.***




        *
             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).
        ***
              The Honorable Suzanne B. Conlon, District Judge for the United
States District Judge for the Northern District of Illinois, sitting by designation.
      Petitioner Roy D. Moraga appeals from the dismissal of his habeas petition

by the U.S. District Court for the District of Nevada.1 Three issues were certified

for appeal: (1) whether the increased sentence Moraga received on resentencing

after remand from the Nevada Supreme Court violated his due process rights under

the Fifth and Fourteenth Amendments; (2) whether the district court abused its

discretion by denying his motion to amend his fourth amended petition; and (3)

whether the U.S. district court erred in denying his motion to expand the record.

Moraga also raises one uncertified issue. We affirm in all respects.

      This petition is governed by the Antiterrorism and Effective Death Penalty

Act of 1996 (“AEDPA”). Under AEDPA, the court may grant habeas relief only

if: (1) a state court’s decision “was contrary to, or involved an unreasonable

application of, clearly established Federal law”; or (2) “was based on an

unreasonable determination of the facts in light of the evidence presented.” 28

U.S.C. § 2254(d)(1)-(2). The court reviews the denial of a habeas petition de novo.

Martinez v. Schriro, 623 F.3d 731, 735 (9th Cir. 2010).

      First, Moraga contends that his resentencing in the Nevada trial court after

remand from the Nevada Supreme Court violated his due process rights because he



      1
             The parties are familiar with the facts of this case and we repeat them
here only as necessary.

                                          2
was vindictively sentenced to a longer period of time than he was originally

sentenced. Under AEDPA, we “may not reach the merits of procedurally defaulted

claims.” Smith v. Baldwin, 510 F.3d 1127, 1139 (9th Cir. 2007) (internal quotation

marks and citation omitted). Specifically:

      In all cases in which a state prisoner has defaulted his federal claims
      in state court pursuant to an independent and adequate state
      procedural rule, federal habeas review of the claims is barred unless
      the prisoner can demonstrate cause for the default and actual prejudice
      as a result of the alleged violation of federal law, or demonstrate that
      failure to consider the claims will result in a fundamental miscarriage
      of justice.

Coleman v. Thompson, 501 U.S. 722, 750 (1991). Here, Moraga’s sentencing

claim is procedurally defaulted because of the Nevada Supreme Court’s finding

that this claim was barred as untimely and successive.2 We agree and hold that

Moraga’s federal sentencing claims are procedurally barred because of the

independent and adequate state law grounds set forth by the Nevada Supreme

Court. Cf. Smith, 510 F.3d at 1139.

      2
              The Nevada Supreme Court applied Nevada Revised Statutes
(“NRS”) § 34.726 (establishing a one year statute of limitations for challenging the
validity of a judgment or sentence) and NRS § 34.810 (permitting a court to
dismiss a petition for several reasons, including successive petitions) and found
that Moraga “filed his petition more than ten years after this court issued the
remittitur from his appeal from the amended judgment of conviction. Thus,
appellant’s petition was untimely filed. Moreover, appellant’s petition constituted
an abuse of the writ because appellant could have raised his claim in his prior
petition.”

                                         3
      Moraga argues that we may still consider his resentencing claim because of

his counsel’s ineffective assistance. We reject this claim. While it is true that

ineffective assistance of counsel may satisfy the cause requirement to overcome a

procedural default, it cannot serve as cause if that claim is itself procedurally

defaulted. Edwards v. Carpenter, 529 U.S. 446, 451–53 (2000). Here, the Nevada

Supreme Court held that Moraga’s “claim was reasonably available to him when

he filed his first post-conviction petition for habeas corpus, and [he] failed to

demonstrate that interference by officials prevented him from raising the claim in

his first petition.” We conclude that Moraga’s ineffective assistance of counsel

claim is procedurally defaulted because the claim was available at the time of his

first petition and he never raised this issue as an independent claim in his state

court proceedings.3 Cf. id.

      Second, Moraga contends the U.S. district court abused its discretion by

failing to allow him to amend his fourth amended petition. Moraga argues that the

district court erred in applying Mayle v. Felix, 545 U.S. 644, 662 (2005), to hold

      3
             Were we to reach the merits, we would reject his claim because (a)
Moraga was sentenced by a different judge on remand; (b) the resentencing judge
was acting at the direction of the Nevada Supreme Court that he should be
sentenced on all four counts of conviction, rather than the one sentence for all
counts imposed by the original trial judge; and (c) Moraga’s contention that the
trial judge would have sentenced him to concurrent, rather than consecutive
sentences is not supported by the record.

                                           4
that he had exceeded AEDPA’s one-year statute of limitations for bringing the

additional claims he wanted to raise in what would have served as his fifth

amended petition. He asserts that two of the claims he wanted to raise related back

to his original federal petition, and thus were timely.

      “The district court’s decision to deny leave to amend is reviewed for abuse

of discretion.” Caswell v. Calderon, 363 F.3d 832, 836 (9th Cir. 2004) (per

curiam). In considering whether to exercise its discretion to grant or deny leave to

amend, “[a] district court may, however, take into consideration such factors as

“bad faith, undue delay, prejudice to the opposing party, futility of the amendment,

and whether the party has previously amended his pleadings.” In re Morris, 363

F.3d 891, 894 (9th Cir. 2004). “The district court’s discretion to deny leave to

amend is particularly broad where a [petitioner] previously has amended the

complaint.” World Wide Rush, LLC v. City of Los Angeles, 606 F.3d 676, 690 (9th

Cir. 2010).

      Whether or not Moraga’s claims were timely, the district court did not abuse

its discretion in denying leave to amend given the number of times it had already

permitted Moraga to amend his petition. In addition, Moraga does not provide a

satisfactory explanation for why adding these particular claims at this advanced

stage of the proceedings did not constitute undue delay because he knew of, but did


                                           5
not bring, these claims in his state court petitions, his original petition, or any of

the subsequent petitions prior to his motion to amend his fourth amended petition.

Id.

      Third, Moraga contends that the district court erred by denying his motion to

expand the record. Specifically, he contends that the district court erred in

concluding that he could have discovered the evidence in the supplemental exhibits

through the exercise of due diligence at an earlier stage of the litigation.

      Section 2254(e) constrains when the district court may expand the record to

allow new evidence to situations where the “factual predicate that could not have

been previously discovered through the exercise of due diligence.” §

2254(e)(2)(A)(ii). We have held that “‘a petitioner who ‘knew of the existence of

[ ] information’ at the time of his state court proceedings, but did not present it

until federal habeas proceedings, ‘failed to develop the factual basis for his claim

diligently.’” Rhoades v. Henry, 598 F.3d 511, 517 (9th Cir. 2010) (quoting

Cooper-Smith v. Palmateer, 397 F.3d 1236, 1241 (9th Cir. 2005)). Here, although

Moraga contends that he previously raised his claim in his pro se state petition in

1990, he does not offer an explanation for why it was not until the motion to

expand the record in 2008 that he was able to locate and present the documents

related to his claims. We conclude that Moraga failed to develop the facts in the


                                            6
record in conformance with § 2254(e)(2) and therefore the district court did not err

in denying Moraga’s motion to expand the record. Rhoades, 598 F.3d at 517.

      Finally, we decline to certify Moraga’s uncertified issue. Moraga’s brief

does not cite to any federal or Nevada law that stands for the proposition that a

court’s reliance on an uncertified copy of a conviction in sentencing is error. We

have recently rejected the claim that a certified copy of a court document is

required under similar circumstances. United States v. Strickland, 601 F.3d 963,

969 (9th Cir. 2010) (en banc).

      The district court’s denial of Moraga’s petition is therefore AFFIRMED.




                                          7
