David Arzate v. F. A. Gonzales

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
DAVID ARZATE,
Petitioner - Appellant,
v.
F. A. GONZALES,
Respondent - Appellee.
No. 12-17618
D.C. No. 1:09-cv-02156-MJS
MEMORANDUM*
Appeal from the United States District Court
for the Eastern District of California
Michael J. Seng, Magistrate Judge, Presiding**
Submitted November 18, 2015***
Before: TASHIMA, OWENS, and FRIEDLAND, Circuit Judges.
California state prisoner David Arzate appeals from the district court’s
judgment denying his 28 U.S.C. § 2254 habeas petition. We dismiss.
Arzate raises two challenges to his convictions for attempted murder and
FILED
NOV 23 2015
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
** The parties consented to magistrate judge jurisdiction.
*** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).

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related offenses. The district court granted a certificate of appealability only as to
Arzate’s claim that there was insufficient evidence to support his conviction for
active participation in a criminal street gang. While this appeal was pending, the
state court dismissed that count.1 As Arzate concedes, because he is no longer in
custody for the criminal street gang offense, the certified claim is moot. See
Calderon v. Moore, 518 U.S. 149, 150 (1996) (per curiam).
Arzate’s unopposed motion to construe the opening brief as a request for a
certificate of appealability as to his additional claim is granted. The request for a
certificate of appealability is denied. See 9th Cir. R. 22-1(e); Hiivala v. Wood, 195
F.3d 1098, 1104-05 (9th Cir. 1999) (per curiam).
DISMISSED.
1 We treat Arzate’s notice regarding the status of the case as a request for
judicial notice of the state court order and abstract of judgment dated May 6, 2014.
So treated, the request is granted.
12-17618 2

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