FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

FEB 17, 2009

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 08-14267

Non-Argument Calendar

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D. C. Docket No. 06-01085-CV-TWT-1

KYLE RICHARD BISHOP, III,

Petitioner-Appellant,

versus

FRED BURNETT,

Warden,

THURBERT BAKER,

Respondents-Appellees.

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Appeal from the United States District Court

for the Northern District of Georgia

_________________________

(February 17, 2009)

Before BLACK, BARKETT and HULL, Circuit Judges.

PER CURIAM:
Kyle Richard Bishop, a Georgia prisoner proceeding pro se, appeals the

district court’s denial of his motion to expand the record relating to his federal

habeas petition, filed pursuant to 28 U.S.C. § 2254. After review, we affirm.

Bishop is serving a 40-year sentence for child molestation, aggravated child

molestation and aggravated sexual battery. On May 4, 2006, Bishop filed a § 2254

petition, which the district court denied on January 30, 2007. Over a year later,

Bishop filed a motion to expand the record to include an affidavit from his victim

averring that she perjured her trial testimony and that Bishop is actually innocent.

The district court denied the motion, concluding that Bishop had never raised an

actual innocence claim in the state courts and, therefore, such a claim was

unexhausted. The district court’s order stated that “Petitioner’s Motion to Expand

the Record is . . . DENIED.” But the district court granted a certificate of

appealability (“COA”) on the issue of “whether [Bishop] can amend his petition to

assert a claim of actual innocence before exhausting state remedies as to that

claim.”

On appeal, the parties address the issue identified in the COA and also the

propriety of denying Bishop’s motion to expand the record. We first note that

Bishop never moved to amend his § 2254 petition and the district court never

construed Bishop’s motion to expand the record as a motion to amend the petition.

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Further, the district court’s COA did not encompass the denial of the motion to

expand the record. Accordingly, we sua sponte expand the COA to include the

issue of whether the district court erred in denying Bishop’s motion to expand the

record pursuant to Rule 7 of the Rules Governing Section 2254 Cases. See Hodges

v. Att’y Gen., Fla., 506 F.3d 1337, 1341-42 (11th Cir. 2007), cert. denied, 129 S.

Ct. 122 (2008) (recognizing that this Court in unusual cases has the discretion to

expand the COA to include related issues). Finally, whether viewed as a motion

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for leave to amend his § 2254 petition or as a motion to expand the record, the

district court did not abuse its discretion in denying Bishop’s motion because

Bishop filed his motion well over a year after the district court had already denied

his § 2254 petition and dismissed his case.

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AFFIRMED.

However, to the extent Bishop raises arguments related to the merits of his § 2254 1

petition, we decline to address them as outside the scope of the COA.

We review the denial of a habeas petitioner’s motion for leave to amend his petition for 2

an abuse of discretion. Moore v. Balkcom, 716 F.2d 1511, 1526-27 (11th Cir. 1983). Likewise,

a district court’s denial of a Rule 7 motion to expand the record is reviewed for abuse of

discretion. Beuke v. Houk, 537 F.3d 618, 653 (6th Cir. 2008); Mark v. Ault, 498 F.3d 775, 788

(8th Cir. 2007).

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