Hector M. Cardona v. Jason Ellis; Lawrence G. Wasden

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
HECTOR M. CARDONA,
Petitioner - Appellant,
v.
JASON ELLIS; LAWRENCE G.
WASDEN,
Respondents - Appellees.
No. 13-35199
D.C. No. 1:11-cv-00651-EJL
MEMORANDUM*
Appeal from the United States District Court
for the District of Idaho
Edward J. Lodge, District Judge, Presiding
Argued and Submitted February 3, 2016
Seattle, Washington
Before: KOZINSKI, O’SCANNLAIN and GOULD, Circuit Judges.
Assuming that Cardona’s one-year period to file a federal habeas petition
only began after his direct-appeal window closed, his federal petition is
nevertheless untimely. Cardona didn’t show that he was entitled to equitably toll
the eleven days after the Idaho Supreme Court denied his postconviction petition
FILED
JUN 01 2016
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.

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and before he filed his federal petition. For one, he didn’t argue that he had been
“pursuing his rights diligently” during that time period. Holland v. Florida, 560
U.S. 631, 649 (2010).
Nor did he show that “some extraordinary circumstance” during those days
frustrated his ability to file a federal petition. Id. Cardona raised an equitable
tolling argument for the first time in his Rule 59(e) motion to alter or amend the
district court’s February 12, 2013 judgment. He argued for tolling because his
former counsel failed to timely notify him of the denial of his postconviction
petition. But he did not file an amended notice of appeal separately challenging
the district court’s denial of the Rule 59(e) motion as our rules require. Fed. R.
App. P. 3(c)(1)(B); 4(a)(4)(A)(iv), (B)(ii). Nor did Cardona mention the Rule
59(e) motion or the equitable-tolling argument based on his former counsel’s
conduct in his brief on appeal, so the state couldn’t address that issue. See Le v.
Astrue, 558 F.3d 1019, 1022–23 (9th Cir. 2009). And Cardona waived the
argument that his lack of actual notice amounted to an “extraordinary
circumstance” by raising it for the first time on appeal. See In re Mercury
Interactive Corp. Secs. Litig., 618 F.3d 988, 992 (9th Cir. 2010).
AFFIRMED.

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