Edward Palmore v. Patricia A. Hicks

FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
JUNE 18, 2010
JOHN LEY
CLERK
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 09-13062
Non-Argument Calendar
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D. C. Docket No. 05-00414-CV-CAR-5
EDWARD PALMORE,
Petitioner-Appellant,
versus
PATRICIA A. HICKS,
Respondent-Appellee.
________________________
Appeal from the United States District Court
for the Middle District of Georgia
_________________________
(June 18, 2010)
Before BLACK, PRYOR and FAY, Circuit Judges.
PER CURIAM:
Edward Palmore, a Georgia state prisoner serving a 20-year sentence for

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cruelty to children, appeals from the magistrate judge’s order denying his pro se
motion to amend his petition under 28 U.S.C. § 2254 by adding two claims for
relief. On appeal, Palmore, proceeding pro se, argues that the magistrate abused
his discretion in denying Palmore’s motion to amend because, pursuant to
Fed.R.Civ.P. 15(a), he had the right to amend his § 2254 petition as a matter of
course before the state filed a response.
For the reasons set forth below, we affirm.
I.
In October 2005, Palmore, proceeding pro se, filed a petition for habeas
relief under 28 U.S.C. § 2254 in the district court. Palmore raised the following
eight claims: (1) police officers violated his Fourth Amendment rights by
conducting a warrantless search of his house; (2) the trial court failed to hold a
hearing regarding his motion to suppress; (3) trial counsel was ineffective for
failing to pursue his motion to suppress, which previously had been filed on
Palmore’s behalf by a different attorney; (4) a government witness’s testimony
included an opinion that infringed upon the jury’s province as the fact-finder; (5) a
government witness gave perjured testimony; (6) documents needed to impeach a
state witness were not available; (7) the trial court permitted Palmore’s original
trial attorney to withdraw, thus denying his right to counsel; and (8) irrelevant and
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prejudicial material, which had not been admitted into evidence, was presented to
the jury (“claims 1-8”).
In December 2005, before the state filed a response, Palmore filed a motion
to amend his § 2254 petition, asserting that he wished to add the following two
claims: (9) he was denied access to the courts while in county prison because the
prison did not have a legal library (“claim 9”); and (10) trial counsel was
ineffective because, during his representation of Palmore, counsel was suffering
from prostate cancer, and was medicated and in a great deal of pain (“claim 10”).
The magistrate judge entered an order denying Palmore’s motion to amend, stating
that:
[A] review of [the proposed] amendment reveals that the claims
presented are not appropriate for consideration in a habeas corpus
petition as [Palmore] alleges violations of his constitutional rights and
does not attack his sentence. Therefore, if [Palmore] wishes to pursue
said claims he must file a [new] lawsuit pursuant to 42 U.S.C. § 1983.
Thereafter, Patricia Hicks, Warden of the Augusta State Medical Prison,
answered Palmore’s petition and denied that he was entitled to relief under § 2254.
After Hicks filed her answer, along with a supporting brief and exhibits, Palmore
submitted a brief in support of his § 2254 petition. In this brief, Palmore provided
details concerning the claims that he initially raised in his § 2254 petition. He did
not object to or otherwise address the magistrate’s order denying his motion to
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amend. Palmore also filed objections to Hicks’s answer, in which he further
discussed the merits of two of the eight claims that he raised in his initial § 2254
petition. Again, Palmore did not object to or address the magistrate’s denial of his
motion to amend.
The magistrate judge entered a report and recommendation, recommending
that the court deny Palmore’s § 2254 petition. Palmore filed objections to the
report and recommendation, in which he did not argue that the magistrate erred by
denying his motion to amend. In addition, Palmore also filed a motion for
reconsideration, in which he asked that the court reconsider a previous order
denying his request for an evidentiary hearing as to his Fourth Amendment claims
(claims 1 and 2), as well as his claims that he was denied counsel and did not have
access to impeachment material (claims 6 and 7). In this motion, as in his other
pleadings, Palmore’s did not address the magistrate’s order denying his motion to
amend.
The district court entered an order adopting the magistrate’s report and
recommendation, and denying relief under § 2254. We subsequently granted a
COA as to the following issue: “Whether the district court erred by failing to grant
[Palmore’s] motion to amend his habeas petition, brought pursuant to 28 U.S.C.
§ 2254.”
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II.
Appellate review is limited to the issue or issues specified in the COA.
Murray v. United States, 145 F.3d 1249, 1250-51 (11th Cir. 1998); see 28 U.S.C.
§ 2253(c)(3). Procedural issues that must be resolved before we can address the
underlying claim specified in the COA are presumed to be encompassed in the
COA. McCoy v. United States, 266 F.3d 1245, 1248 n.2 (11th Cir. 2001).
Under Fed.R.Civ.P. 72(a), where a magistrate judge enters a non-dispositive
pretrial ruling, a party must object to the ruling within a specified time period, and
“may not assign as error a defect in the order not timely objected to.” Fed.R.Civ.P.
72(a); see Williams v. Chatman, 510 F.3d 1290, 1293 (11th Cir. 2007) (noting that
the Federal Rules of Civil Procedure apply to habeas proceedings to the extent that
they are not inconsistent with the statutes that govern habeas proceedings). An
order disposing of a motion to amend is a non-dispositive pretrial ruling. See 28
U.S.C. § 636(b)(1)(A) (providing that a magistrate judge may determine any
pretrial matter except for those specifically enumerated in the statute); Schur v.
L.A. Weight Loss Centers, Inc., 577 F.3d 752, 760 & n.6 (7th Cir. 2009) (noting
that, for purposes of Fed.R.Civ.P. 72(a) a motion to amend is a non-dispositive
pretrial matter); Daley v. Marriott Int’l, Inc., 415 F.3d 889, 893 n.9 (8th Cir. 2005)
(same); Cont’l Cas. Co. v. Dominick D’Andrea, Inc., 150 F.3d 245, 251 (3d Cir.
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1998) (same); Pagano v. Frank, 983 F.2d 343, 346 (1st Cir. 1993) (same). Where
a party failed to object to a magistrate’s ruling regarding a non-dispositive pretrial
matter, the party has forfeited his right to challenge the ruling on appeal. Smith v.
Sch. Bd. of Orange County, 487 F.3d 1361, 1365 (11th Cir. 2007); see also Farrow
v. West, 320 F.3d 1235, 1249 n.21 (11th Cir. 2003) (applying this rule in the
context of reviewing pleadings filed by a pro se litigant).
Here, because the issue of whether Palmore forfeited his right to appeal from
the magistrate’s denial of his motion to amend is a procedural issue that must be
resolved before we reach the underlying question of whether the magistrate abused
its discretion by denying the motion, we construe the COA to include this issue.
Because a magistrate’s disposition of a motion to amend constitutes a non-
dispositive pretrial ruling, Palmore was required to object to the magistrate’s denial
of his motion to amend to preserve this argument for appeal. Palmore failed to
object to the magistrate’s order and, as result, he forfeited his right to raise this
issue on appeal. Accordingly, we affirm.
AFFIRMED.
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