                                                                              FILED
                           NOT FOR PUBLICATION                                MAR 13 2015

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



                           FOR THE NINTH CIRCUIT


SAMUEL SALDANA,                                  No. 12-17157

              Petitioner - Appellant,            D.C. No. 3:11-cv-04716-CRB

  v.
                                                 MEMORANDUM*
RON BARNS,

              Respondent - Appellee.


                  Appeal from the United States District Court
                      for the Northern District of California
                Charles R. Breyer, Senior District Judge, Presiding

                           Submitted March 10, 2015**
                             San Francisco California

Before: McKEOWN, MURGUIA, and FRIEDLAND, Circuit Judges.

       Petitioner/Appellant Samuel Saldaña was convicted of robbery and

carjacking in California’s Santa Clara County. Saldaña filed a timely petition for

writ of habeas corpus in the Northern District of California. The district court


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
denied the petition because Saldaña had failed to exhaust his claims. Saldaña then

litigated his claims to completion in state court and returned to district court with a

new petition well after the one-year statute of limitations had elapsed. See 28

U.S.C. § 2244(d)(1)(A). The district court dismissed Saldaña’s second petition as

untimely. Saldaña now argues that he is entitled to equitable tolling.

      Saldaña argues that the district court was required to inform him that he

could stay and abey his first petition while he litigated his claims in state court

before dismissing the petition as unexhausted. Saldaña waived this argument by

failing to raise it in the district court in the action on his second petition. See Smith

v. Marsh, 194 F.3d 1045, 1052 (9th Cir. 1999). Instead, Saldaña argued before the

district court that his second petition’s untimeliness should be excused because

Saldaña is actually innocent. Accordingly, he failed to raise the issue “‘sufficiently

for the trial court to rule on it.’” See Butler v. Long, 752 F.3d 1177, 1180 (9th Cir.

2014) (quoting Walsh v. Nev. Dep’t of Human Res., 471 F.3d 1033, 1037 (9th Cir.

2006)). Even if the issue was not waived, it is settled that district courts in this

Circuit do not have a duty to inform habeas petitioners of the stay and abey

procedure. See Robbins v. Carey, 481 F.3d 1143, 1148–49 (9th Cir. 2007).

      AFFIRMED.




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