                                                                               FILED
                           NOT FOR PUBLICATION
                                                                               JUN 01 2016
                   UNITED STATES COURT OF APPEALS                           MOLLY C. DWYER, CLERK
                                                                             U.S. COURT OF APPEALS


                           FOR THE NINTH CIRCUIT


HECTOR M. CARDONA,                               No. 13-35199

              Petitioner - Appellant,            D.C. No. 1:11-cv-00651-EJL

 v.
                                                 MEMORANDUM*
JASON ELLIS; LAWRENCE G.
WASDEN,

              Respondents - Appellees.


                    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

          *
          This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
                                                                                 page 2
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.
