David Yulo Martinez Iii v. Charles L. Ryan; Attorney General for the State of Arizona

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
DAVID YULO MARTINEZ III,
Petitioner-Appellant,
v.
CHARLES L. RYAN; ATTORNEY
GENERAL FOR THE STATE OF
ARIZONA,
Respondents-Appellees.
No. 18-16372
D.C. No. 4:15-cv-00566-BPV
MEMORANDUM*
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).
FILED
SEP 16 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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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.

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