NOT FOR PUBLICATION APR 29 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
SHABONDY LAMAR SIMPSON, No. 11-15400
Petitioner - Appellant, D.C. No. 2:05-cv-00640-JAM-
M. EVANS, Warden, MEMORANDUM *
Respondent - Appellee.
Appeal from the United States District Court for the Eastern District of California
John A. Mendez, District Judge, Presiding
Argued and Submitted March 15, 2013
San Francisco, California
Before: NOONAN, FISHER and NGUYEN, Circuit Judges.
Shabondy Simpson, a state prisoner, appeals the district court's denial of his
28 U.S.C. § 2254 habeas petition, which the district court construed as a motion for
leave to amend Simpson's prior habeas petition pursuant to Woods v. Carey, 525
F.3d 886 (9th Cir. 2008). We have jurisdiction under 28 U.S.C. §§ 1291 and 2253,
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
and affirm on an alternative ground. See Ybarra v. McDaniel, 656 F.3d 984, 992
n.3 (9th Cir. 2011) (explaining that we may affirm the denial of habeas relief on
any ground supported by the record).
1. Although Simpson filed his petition after his notice of appeal had been
filed, the district court retained jurisdiction to deny a timely-filed motion for relief.
See Fed. R. Civ. P. 62.1(a)(2). We thus have jurisdiction to consider this appeal.
2. The district court abused its discretion in denying Simpson's motion on
the basis of delay, his lack of diligence, and prejudice to the state. In adopting the
magistrate judge's recommendation to deny Simpson's constructive motion for
leave to amend, the district court failed to consider the fact that Simpson had not
previously been afforded an opportunity to amend his petition. See Caswell v.
Calderon, 363 F.3d 832, 837 (9th Cir. 2004) (listing factors relevant to
consideration of a motion for leave to amend a complaint); Maxwell v. Lucky
Const. Co., 710 F.2d 1395, 1399 (9th Cir. 1983) ("Failure to consider pertinent
factors constitutes an abuse of discretion.").
Furthermore, the district court's conclusion that Simpson did not act
diligently is illogical and unsupported by the record. It was unreasonable to fault
Simpson for the time he spent in state court exhausting his claim under
Cunningham v. California, 549 U.S. 270
(2007), which he was required to do
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under AEDPA. See 28 U.S.C. § 2254(b). The district court's reliance on
Simpson's ability to correctly answer a question about the procedural history of his
postconviction litigation was also unwise. As Woods recognizes, pro se habeas
petitioners are often not well-versed in the complex procedural rules that govern
federal habeas petitions. For this reason, "[a] document filed pro se is â€˜to be
liberally construed,' and a â€˜ pro se complaint, however inartfully pleaded, must be
held to less stringent standards than formal pleadings drafted by lawyers.'"
Woods, 525 F.3d at 889â€"90 (quoting Erickson v. Pardus, 551 U.S. 89
, 94 (2007)
(per curiam)). It was further unreasonable to fault Simpson for failing to include
his Cunningham claim in his July 2008 motion to amend. The Cunningham claim
was not exhausted in state court until the California Supreme Court denied his state
habeas petition on July 16, 2008â€"the day after he mailed his motion to amend.
Finally, any prejudice to the state that may have resulted because Simpson's
initial habeas petition was resolved on the merits at the time the district court ruled
on the motion to amend could have been prevented by the district court's prompt
consolidation of Simpson's first and second habeas petitions as required by
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Woods.1 Simpson filed his second habeas petition in November 2008â€"eight
months before his initial habeas petition was denied on the merits. Additionally, at
the time Simpson moved to add the Cunningham claim, Simpson's July 2008
motion to amend was pending before the district court, and that motion was not
ruled on until four months after Simpson filed his second habeas petition. Had the
two petitions been timely consolidated, the district court could have ruled on both
motions at the same time. Tellingly, the court did not deny the earlier motion on
the ground that Simpson's delay in filing it had prejudiced the state.
3. We nonetheless affirm the district court on the alternative ground that
amendment would have been futile because Simpson's proposed Cunningham
claim was time-barred. As relevant here, the one-year statute of limitations runs
from the latest of either "the date on which the judgment became final by the
To the extent the district court believed that responsibility for the delay in
consolidation could be placed on Simpson because he failed to indicate on his second habeas petition that he currently had a habeas case pending, we remind the
district court of the affirmative duty imposed on district courts by Woodsâ€"a duty
grounded in courts' obligation to liberally construe documents filed by pro se
litigants. 525 F.3d at 889â€"90. Simple administrative procedures that have already
been adopted by other districts in this circuitâ€"assigning all habeas petitions by a
particular inmate to the same judicial officersâ€"could prevent the delay in
consolidation that occurred in this appeal. See D. Ariz. Loc. R. 3.7(e); C.D. Cal.
Gen. Order 08-05 § 2.2; id. Gen. Order 05-07 at 8â€"9; N.D. Cal. Gen. Order
44(D)(5). In light of the affirmative duty imposed by Woods, the district court
could similarly adopt procedures that facilitate expedient consolidation of petitions
filed by pro se petitioners.
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conclusion of direct review," 28 U.S.C. § 2244(d)(1)(A), or "the date on which the
constitutional right asserted was initially recognized by the Supreme Court, if the
right has been newly recognized by the Supreme Court and made retroactively
applicable to cases on collateral review," id. § 2244(d)(1)(C).
Simpson's sentence became final on April 22, 2003, and excluding periods
of statutory and equitable tolling, he waited more than one year after that date
before seeking relief under Cunningham. Therefore, Simpson's proposed claim
was timely only if Cunningham itself "newly recognized" the right that he sought
to assert and applies retroactively. Yet, in Butler v. Curry, 528 F.3d 624, 628 (9th
Cir. 2008), we held that Cunningham did not announce a new rule of law because
its result "was clearly dictated by the Supreme Court's [prior] Sixth Amendment
case law, in particular by Blakely v. Washington, 542 U.S. 296
"the Supreme Court announced a new rule in Blakely v. Washington," it "does not
apply retroactively to a conviction that was final before that decision was
announced." Schardt v. Payne, 414 F.3d 1025, 1038 (9th Cir. 2005). Simpson
waited more than one year after Blakely was decided before seeking relief.
Consequently his proposed claim is time-barred.
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