David Martinez, III v. Charles Ryan

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS SEP 16 2019 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

DAVID YULO MARTINEZ III, No. 18-16372

Petitioner-Appellant, D.C. No. 4:15-cv-00566-BPV

v. MEMORANDUM* CHARLES L. RYAN; ATTORNEY GENERAL FOR THE STATE OF ARIZONA,

Respondents-Appellees.

Appeal from the United States District Court for the District of Arizona Bernardo P. Velasco, Magistrate Judge, Presiding

Submitted September 11, 2019** San Francisco, California

Before: WALLACE, BEA, and FRIEDLAND, Circuit Judges.

Petitioner David Yulo Martinez III appeals the district court’s denial of his

28 U.S.C. § 2254 petition for writ of habeas corpus as untimely. We have

jurisdiction under 28 U.S.C. §§ 1291, 2253 and we review the district court’s

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). denial of Martinez’s petition de novo. Nedds v. Calderon, 678 F.3d 777, 780 (9th

Cir. 2012). We affirm.

Martinez concedes that his petition was filed untimely. He contends only

that he is entitled to equitable tolling of the Antiterrorism and Effective Death

Penalty Act’s (AEDPA) one-year statute of limitations from March 2015 until July

2015—a period during which he was hospitalized for hip surgery. But Martinez

(concededly) did not raise this argument to the district court, and our ordinary

practice is that arguments raised for the first time on appeal are waived absent

exceptional circumstances. United States v. Monreal, 301 F.3d 1127, 1131 (9th

Cir. 2002). To prevail on his appeal, Martinez thus must demonstrate both that he

is entitled to equitable tolling and that some exceptional circumstance justifies

overlooking that Martinez waived his equitable tolling argument. Because we see

no such exceptional circumstances, we conclude that Martinez waived his

equitable tolling argument.

AFFIRMED.