                                                                            FILED
                            NOT FOR PUBLICATION                                 JUL 06 2010

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




                            FOR THE NINTH CIRCUIT



FRANK HUGH COLTON,                                No. 08-35633

              Petitioner - Appellant,             D.C. No. 3:05-CV-01868-PK

  v.
                                                  MEMORANDUM *
GUY HALL,

              Respondent - Appellee.



                  Appeal from the United States District Court
                            for the District of Oregon
                Ancer L. Haggerty, Senior District Judge, Presiding

                             Submitted June 10, 2010 **
                                 Portland, Oregon

Before: THOMPSON, McKEOWN and PAEZ, Circuit Judges.

       Petitioner Frank Hugh Colton was convicted by jury of two counts of

unlawful sexual conduct with a minor, in violation of Or. Rev. Stat. § 163.427. At

sentencing, the Oregon trial judge found that the acts did not arise out of a


        *
             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).
continuous and uninterrupted course of conduct, and imposed consecutive

sentences. See Or. Rev. Stat. § 137.123.

      Colton’s pro se habeas corpus petition, filed in the district court, alleged

ineffective assistance of counsel and averred that “[t]he sentence was

unconstitutional.” Two years later, Colton sought to amend his petition to add a

claim that the imposition of consecutive sentences by the Oregon court deprived

him of his constitutional right to a jury trial. The district court rejected that claim

as untimely.

      We have jurisdiction under 28 U.S.C. § 2254, and we affirm.

      Colton argues the claim he sought to add by amendment is timely, because it

“relates back” to his initial habeas petition. Relation back applies to habeas claims

only if they “arose out of the conduct, transaction, or occurrence set out—or

attempted to be set out—in the original pleading.” Fed. R. Civ. P. 15(c)(1)(B).

See also Mayle v. Felix, 545 U.S. 644, 650, 664 (2005) (explaining that relation

back applies to claims “tied to a common core of operative facts,” but not to claims

“assert[ing] a new ground for relief supported by facts that differ in both time and

type from those the original pleading set forth”).

      Colton’s initial petition asserted that his trial counsel erred by failing to

object to his sentence, and stated: “The sentence was unconstitutional, as petitioner


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was sentence[d] to a mandatory term, and received two counts of the same charge.”

The claim Colton sought to add by amendment challenged the Oregon court’s

imposition of consecutive sentences. Thus, the two claims involve different

alleged errors by different actors. In addition, the two claims are not “tied to a

common core of operative facts.” See id. at 664. The original petition never

mentions the consecutive nature of the sentences or any case law upon which

Colton now relies. We conclude the district court did not abuse its discretion by

denying Colton’s motion to amend. See Williams v. Boeing Co., 517 F.3d 1120,

1132 n.8 (9th Cir. 2008) (explaining that a district court’s denial of a motion to

amend a complaint that will relate back under Rule 15(c) is reviewed for abuse of

discretion).

      Even if relation back were to apply, however, the Oregon court did not err

by imposing consecutive sentences. As the Supreme Court held in Oregon v. Ice,

129 S. Ct. 711, 719 (2009), a state may assign to judges the decision whether to

impose consecutive sentences. That’s what the Oregon sentencing court did.

Colton does not present clear and convincing evidence that the crimes arose from a

continuous and uninterrupted course of conduct. See 28 U.S.C. § 2254(e). The

two acts occurred on the same day and involved the same victim, but the acts




                                           3
occurred in two separate rooms and enough time passed between them for one

activity to have been completed before the second activity began.

      AFFIRMED.




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