                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                            FILED
                           FOR THE NINTH CIRCUIT                               FEB 23 2012

                                                                           MOLLY C. DWYER, CLERK
MICHAEL A. RIVERA,                               No. 09-16119               U.S. COURT OF APPEALS



              Petitioner - Appellant,            D.C. No. 2:08-cv-00317-FJM-JCG

  v.
                                                 MEMORANDUM*
STATE OF ARIZONA ATTORNEY
GENERAL and CHARLES L. RYAN,

              Respondents - Appellees.


                   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



        *
         This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
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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