Shabondy Lamar SIMPSON, Petitioner-Appellant, v. M. EVANS, Warden, Respondent-Appellee, 525 F. App'x 535

MEMORANDUM 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, 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, 127 S.Ct. 856, 166 L.Ed.2d 856 (2007), which he was required to do 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 ‘to be liberally construed,’ and a ‘pro se complaint, however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers.’ ” Woods, 525 F.3d at 889-90 (quoting Erickson v. Pardus, 551 U.S. 89, 94, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (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, 2008 — 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 Woods.

Simpson filed his second habeas petition in November 2008 — 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 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 párticular by Blakely v.

Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004).” Because “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. AFFIRMED. This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. .

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 Woods — a duty grounded in courts’ obligation to liberally construe documents filed by pro se litigants. 525 F.3d at 889-90.

Simple administrative procedures that have already been adopted by other districts in this circuit— assigning all habeas petitions by a particular inmate to the same judicial officers — could prevent the delay in consolidation that occurred in this appeal. See D. Ariz. Loe. R. 3.7(e); C.D. Cal. Gen. Order 08-05 § 2.2; id. Gen. Order 05-07 at 8-9; 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.