Winfred Lavirgne v. James Yates

MEMORANDUM

Petitioner-Appellant Winfred Howard Lavirgne, a California state prisoner, appeals from the district court’s denial of his petition for a writ of habeas corpus. We have jurisdiction pursuant to 28 U.S.C. § 2253 .

Lavirgne’s argument that he “had an absolute right to amend [his] habeas petition once” falls outside the scope of the certifícate of appealability. Hiivala v. Wood, 195 F.3d 1098, 1103 (9th Cir.1999) (per curiam).

We choose not to expand the scope of the certificate of appealability because Lavirgne has not demonstrated a “ ‘substantial showing of the denial of a constitutional right.’ ” Id. at 1104 , quoting 28 U.S.C. § 2253 (c)(2). Prior to a summary dismissal by the district court, a habeas petitioner must be afforded notice and an opportunity to be heard. Herbst v. Cook, 260 F.3d 1039, 1043 (9th Cir.2001). Lav-irgne was given notice and an opportunity to be heard regarding the sua sponte dismissal of his habeas petition. In response, Lavirgne failed to present any colorable argument why the statute of limitations on his habeas petition should be tolled or how the statute of limitations was improperly calculated by the California Superior Court. Neither…