                                                                             FILED
                              NOT FOR PUBLICATION                            NOV 23 2015

                                                                          MOLLY C. DWYER, CLERK
                       UNITED STATES COURT OF APPEALS                      U.S. COURT OF APPEALS



                              FOR THE NINTH CIRCUIT


DAVID ARZATE,                                      No. 12-17618

                 Petitioner - Appellant,           D.C. No. 1:09-cv-02156-MJS

 v.
                                                   MEMORANDUM*
F. A. GONZALES,

                 Respondent - Appellee.


                     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

          *
             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).
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.

                                           2                                     12-17618
