Frank Rust v. David B. Long

MEMORANDUM

Petitioner Frank A. Rust (“Rust”) appeals the district court’s denial of his motion to amend his federal habeas petition and subsequent denial of the petition. Rust filed a petition to vacate his sentence for assault with a deadly weapon under 28 U.S.C. § 2254 and sought to amend his petition to add a claim that the trial court erred in issuing a three-strike sentence based on his prior sex offense convictions from 1985. Because the parties are familiar with the facts and procedural history of the case, we repeat only those facts necessary to resolve the issues raised on appeal. We have jurisdiction pursuant to 28 U.S.C. §§ 1291 and 2253, and we affirm.

1. A court may deny leave to amend if the proposed amendment is futile. Bonin v. Calderon, 59 F.3d 815, 845 (9th Cir.1995). Rust seeks to amend his petition to add a- claim that the trial court erred in imposing a three-strike sentence because the jury acquitted him of his sex offender registration charge. The jury’s acquittal on the registration charge shows only that the government did not meet its burden of proof on that charge, not that the jury necessarily found that he was not in fact convicted for the 1985…