                                                                             FILED
                            NOT FOR PUBLICATION                               JUN 11 2012

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




                             FOR THE NINTH CIRCUIT



WALTER JOHNSON,                                   No. 10-15623

              Petitioner - Appellant,             D.C. No. 2:05-cv-01223-JAM-
                                                  DAD
  v.

M. L. EVANS,                                      MEMORANDUM *

              Respondent - Appellee.



                    Appeal from the United States District Court
                        for the Eastern District of California
                     John A. Mendez, District Judge, Presiding

                              Submitted May 15, 2012 **
                               San Francisco, California

Before: THOMAS, McKEOWN, and W. FLETCHER, Circuit Judges.

       Walter Johnson appeals the district court’s denial of his petition for a writ of

habeas corpus. He raises a single issue on appeal: whether the magistrate judge

erred as a matter of law when he failed to construe a pro se filing, styled as a Rule


        *
             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).
60(b) motion, as Johnson’s attempt to amend his pending habeas petition. We

have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.

      Johnson filed a pro se motion in August 2005 (the “August motion”) when

his habeas petition was pending. Johnson styled that document as a “Motion for

Relief From Judgment/Vacate Judgment F.R.C.P. 60(b)(1)(2)(3)(4)(6) Void

Judgment (Fraud) Vacate State Judgment F.R.C.P. 60(b)(H) Brady.” In it, Johnson

reiterated at least one argument from his habeas petition and raised additional

instances of ineffective assistance of counsel. He also asserted that DNA evidence

recovered at the scene did not point to him, and attached an earlier motion from his

state appellate counsel that faulted his trial counsel for withdrawing a “heat of

passion” defense. Johnson asked the district court “to rule on this motion 60(b)

before it rules on the writ of habeas corpus.” The magistrate judge denied the

August motion on March 3, 2006, explaining that Federal Rule of Civil Procedure

60(b) was an inappropriate vehicle to challenge a state court conviction. The

magistrate judge noted, however, that “petitioner [would] be permitted to proceed

with [his] habeas action in which he challenges the state court judgment of

conviction on the grounds of ineffective assistance of counsel.” Johnson requested

reconsideration on April 19, 2006, but the district court rejected that request as

untimely.


                                           2
      A party who “fails to file timely objections to a magistrate judge’s

nondispositive order with the district judge to whom the case is assigned forfeits its

right to appellate review of that order.” Simpson v. Lear Astronics Corp., 77 F.3d

1170, 1174 (9th Cir. 1996); see also Glenbrook Homeowners Ass’n v. Tahoe

Regional Planning Agency, 425 F.3d 611, 619 (9th Cir. 2005) (holding that appeal

of a discovery denial was foreclosed by parties’ failure to object to a magistrate’s

order within the specified time). Federal Rule of Civil Procedure 72(a) requires a

district court to consider any timely objections to a magistrate’s order on a

nondispositive motion and “modify or set aside any part of the order that is clearly

erroneous or is contrary to law.” It cautions that a party “may not assign as error”

a defect not objected to in a timely manner. Because Johnson did not timely object

to the magistrate’s order in district court, he has forfeited his right to appellate

review.

      Johnson alternatively contends that his August motion was really a motion

to amend. A motion to amend is also nondispositive. U.S. Dominator, Inc. v.

Factory Ship Robert E. Resoff, 768 F.2d 1099, 1102 n.1 (9th Cir. 1985) superseded

by rule on other grounds as recognized in Simpson, 77 F.3d at 1174 (noting that a

motion for leave to amend was properly treated as nondispositive). Thus, even if




                                            3
the magistrate should have characterized the August motion in the manner Johnson

suggests, Johnson’s failure to timely seek review again forecloses review.

      Johnson reliance on Robbins v. Carey, 481 F.3d 1143, 1147 (9th Cir. 2007);

Martinez v. Ylst, 952 F.2d 1153, 1156 (9th Cir. 1991); and Pollard v. GEO, Inc.,

629 F.3d 843, 853 (9th Cir. 2010), is misplaced because each of those cases

involved a party’s failure to object to a magistrate’s recommendation on a

dispositive matter, not a nondispositive order. None of these cases discuss

appellate review of a magistrate’s determination of non-dispositive issues of law

without prior review by the district judge.

      AFFIRMED.




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