Shabondy Simpson v. M. Evans

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…