Michael A. Rivera v. STATE OF ARIZONA ATTORNEY GENERAL and CHARLES L. RYAN

* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MICHAEL A. RIVERA,
Petitioner - Appellant,
v.
STATE OF ARIZONA ATTORNEY
GENERAL and CHARLES L. RYAN,
Respondents - Appellees.
No. 09-16119
D.C. No. 2:08-cv-00317-FJM-JCG
MEMORANDUM*
Appeal from the United States District Court
for the District of Arizona
Frederick J. Martone, District Judge, Presiding
Argued and Submitted February 16, 2012
San Francisco, California
Before: GRABER, BERZON, and TALLMAN, Circuit Judges.
Petitioner Michael A. Rivera appeals the denial of his habeas corpus
petition, filed pursuant to 28 U.S.C. § 2254. In denying Petitioner’s petition, the
district judge accepted and adopted a magistrate judge’s report that recommended
denying the petition as untimely. That report also contained an alternative ruling
FILED
FEB 23 2012
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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that, even if the petition were timely, Petitioner would not be entitled to relief,
because all of his claims were either procedurally barred, not exhausted, or
substantively not cognizable on federal habeas. On appeal, Petitioner challenges
only the untimeliness portion of the district court’s decision.
Having failed to raise, in his opening brief, a challenge to any part of the
alternative holding, Petitioner has now waived the opportunity to do so. See Smith
v. Marsh, 194 F.3d 1045, 1052 (9th Cir. 1999) ("[A]rguments not raised by a party
in its opening brief are deemed waived."). Even though the certificate of
appealability did not encompass any issue relating to the merits holding, our rules
permit briefing of uncertified issues. See 9th Cir. R. 22-1(e) ("[I]f a petitioner
concludes during the course of preparing the opening brief, that an uncertified
issue should be discussed in the brief, the petitioner shall first brief all certified
issues under the heading, ‘Certified Issues,’ and then, in the same brief, shall
discuss any uncertified issues under the heading, ‘Uncertified Issues.’"). Because
the unchallenged alternative holding is independently sufficient to decide the case,
we need not and do not decide the timeliness-related issues.
AFFIRMED.

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