Joe Keel, II v. James Tilton ( 2012 )

FILED
NOT FOR PUBLICATION NOV 19 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
JOE HOWARD KEEL, II, No. 09-17374
Petitioner - Appellant, D.C. No. 1:06-cv-01073-AWI
v.
MEMORANDUM *
JAMES E. TILTON, Director of
Corrections; ATTORNEY GENERAL
FOR THE STATE OF CALIFORNIA,
Respondents - Appellees.
Appeal from the United States District Court
for the Eastern District of California
Anthony W. Ishii, District Judge, Presiding
Submitted November 13, 2012 **
Before: CANBY, TROTT, and W. FLETCHER, Circuit Judges.
California state prisoner Joe Howard Keel, II, appeals pro se from the
district court’s judgment denying his 28 U.S.C. § 2254 habeas petition. We have
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
jurisdiction under 28 U.S.C. § 2253, and we affirm.
Keel filed a motion for a stay of proceedings concurrently with his habeas
petition. Keel subsequently withdrew his request for a stay and filed multiple
motions to amend his petition. Keel now contends that the district court should
have stayed proceedings and granted his motions to amend.
The district court did not err by failing to grant a stay of proceedings
because Keel withdrew that motion. The district court also did not abuse its
discretion by denying Keel’s motions to amend because amendment would have
been futile. See Bonin v. Calderon, 59 F.3d 815, 845 (9th Cir. 1995). The new
claims lack merit and would have been untimely because they did not relate back
to the claims set forth in the original petition. See Hebner v. McGrath, 543 F.3d
1133, 1138-39 (9th Cir. 2008); Bonin, 59 F.3d at 846.
We construe Keel’s additional arguments as a motion to expand the
certificate of appealability. So construed, the motion is denied. See 9th Cir. R.
22-1(e); Hiivala v. Wood, 195 F.3d 1098, 1104-05 (9th Cir. 1999) (per curiam).
AFFIRMED.
.
2 09-17374