                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                       DEC 20 2017
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

CRAIG CLAY THORNTON,                            No.    16-16668

                Petitioner-Appellant,           D.C. No. 2:14-cv-00834-SPL

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

                Respondents-Appellees.

                   Appeal from the United States District Court
                            for the District of Arizona
                   Steven Paul Logan, District Judge, Presiding

                          Submitted December 18, 2017**

Before:      WALLACE, SILVERMAN, and BYBEE, Circuit Judges.

      Arizona state prisoner Craig Clay Thornton appeals pro se from the district

court’s judgment denying his 28 U.S.C. § 2254 habeas petition. We dismiss.

      The district court concluded that Thornton’s section 2254 petition was time-



      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
barred and, in the alternative, denied Thornton’s claims as procedurally defaulted

and without merit. It granted a certificate of appealability as to the timeliness of

the petition, but not as to its remaining rulings. In his opening brief, Thornton

contends that the district court erred by dismissing his petition on timeliness

grounds without providing him notice and an opportunity to be heard. He further

contends that he may be entitled to equitable tolling or to delayed accrual of the

limitations period pursuant to 28 U.S.C. § 2244(d)(1)(B).

      The state has now waived the statute of limitations defense. Regardless of

the waiver, we lack jurisdiction to review Thornton’s contentions because, in light

of the district court’s alternative denial on the merits, a decision by this court

regarding the timeliness of Thornton’s petition would not effect the result below.

See Preiser v. Newkirk, 422 U.S. 395, 401 (1975) (“[A] federal court has neither

the power to render advisory opinions nor to decide questions that cannot affect the

rights of litigants in the case before them.” (internal quotation marks omitted)).

      Thornton has not asked us to expand the certificate of appealability to

include the district court’s rulings on procedural default or the merits. Although

we may grant a certificate of appealability sua sponte, we decline to do so. See 9th

Cir. R. 22-1(e); Hiivala v. Wood, 195 F.3d 1098, 1104-05 (9th Cir. 1999)

(requiring substantial showing of the denial of a constitutional right).

      DISMISSED.


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