
    Winfred Howard LAVIRGNE, Petitioner-Appellant, v. James A. YATES, Respondent-Appellee.
    No. 09-17365.
    United States Court of Appeals, Ninth Circuit.
    Submitted March 14, 2011.
    
    Filed March 16, 2011.
    Cheryl Rae Anderson, Esquire, Central California Appellate Program, Sacramento, CA, for Petitioner-Appellant.
    Winfred Howard Lavirgne, Coalinga, CA, pro se.
    
      Before: WALLACE, NOONAN, and CLIFTON, Circuit Judges.
    
      
       The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2).
    
   MEMORANDUM

Petitioner-Appellant Winfred Howard Lavirgne, a California state prisoner, appeals from the district court’s denial of his petition for a writ of habeas corpus. We have jurisdiction pursuant to 28 U.S.C. § 2253.

Lavirgne’s argument that he “had an absolute right to amend [his] habeas petition once” falls outside the scope of the certifícate of appealability. Hiivala v. Wood, 195 F.3d 1098, 1103 (9th Cir.1999) (per curiam).

We choose not to expand the scope of the certificate of appealability because Lavirgne has not demonstrated a “ ‘substantial showing of the denial of a constitutional right.’ ” Id. at 1104, quoting 28 U.S.C. § 2253(c)(2). Prior to a summary dismissal by the district court, a habeas petitioner must be afforded notice and an opportunity to be heard. Herbst v. Cook, 260 F.3d 1039, 1043 (9th Cir.2001). Lav-irgne was given notice and an opportunity to be heard regarding the sua sponte dismissal of his habeas petition. In response, Lavirgne failed to present any colorable argument why the statute of limitations on his habeas petition should be tolled or how the statute of limitations was improperly calculated by the California Superior Court. Neither does he identify on appeal anything other than hypothetical speculation to support the proposition that his petition was not untimely. Lavirgne’s argument that he must also be given an opportunity to amend his habeas petition has no support in the caselaw.

AFFIRMED. 
      
       This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
     