                                                                           FILED
                            NOT FOR PUBLICATION                             JAN 28 2015

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



                            FOR THE NINTH CIRCUIT


CARLOS FOSTER,                                   No. 14-15687

               Petitioner - Appellant,           D.C. No. 2:13-cv-02138-KJM

  v.
                                                 MEMORANDUM*
TIM V. VIRGA, Warden,

               Respondent - Appellee.


                    Appeal from the United States District Court
                       for the Eastern District of California
                    Kimberly J. Mueller, District Judge, Presiding

                            Submitted January 21, 2015**

Before:        CANBY, GOULD, and N.R. SMITH, Circuit Judges.

       Carlos Foster appeals pro se from the district court’s judgment dismissing

his 28 U.S.C. § 2254 habeas petition. We have jurisdiction under 28 U.S.C.

§ 2253, and we affirm.



          *
             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).
      The district court dismissed Foster’s habeas petition on the basis that it was

an unauthorized second or successive petition. The court granted a certificate of

appealability on the issue of whether Foster needed permission to file the second

petition given that the first petition was denied as untimely. See, e.g., Cook v.

Ryan, 688 F.3d 598, 608 (9th Cir. 2012). Foster has not addressed this issue on

appeal and has thereby waived any challenge to the district court’s dismissal. See

Womack v. Del Papa, 497 F.3d 998, 1004 (9th Cir. 2007).

      We treat Foster’s allegations regarding ineffective assistance of counsel,

newly discovered DNA evidence, and cumulative error, as a motion to expand the

certificate of appealability, and we deny the motion. See 9th Cir. R. 22-1(e);

Hiivala v. Wood, 195 F.3d 1098, 1104-05 (9th Cir. 1999) (per curiam).

      Foster’s motion to dismiss the answering brief is denied.

      AFFIRMED.




                                           2                                     14-15687
