DAVID ARZATE V. F. GONZALES, No. 12-17618 (9th Cir. 2015)
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FILED NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS NOV 23 2015 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT DAVID ARZATE, No. 12-17618 Petitioner - Appellant, D.C. No. 1:09-cv-02156-MJS v. MEMORANDUM* F. A. GONZALES, Respondent - Appellee. Appeal from the United States District Court for the Eastern District of California Michael J. Seng, Magistrate Judge, Presiding** Submitted November 18, 2015*** Before: TASHIMA, OWENS, and FRIEDLAND, Circuit Judges. California state prisoner David Arzate appeals from the district court’s judgment denying his 28 U.S.C. § 2254 habeas petition. We dismiss. Arzate raises two challenges to his convictions for attempted murder and * This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. ** *** The parties consented to magistrate judge jurisdiction. The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). related offenses. The district court granted a certificate of appealability only as to Arzate’s claim that there was insufficient evidence to support his conviction for active participation in a criminal street gang. While this appeal was pending, the state court dismissed that count.1 As Arzate concedes, because he is no longer in custody for the criminal street gang offense, the certified claim is moot. See Calderon v. Moore, 518 U.S. 149, 150 (1996) (per curiam). Arzate’s unopposed motion to construe the opening brief as a request for a certificate of appealability as to his additional claim is granted. The request for a certificate of appealability is denied. See 9th Cir. R. 22-1(e); Hiivala v. Wood, 195 F.3d 1098, 1104-05 (9th Cir. 1999) (per curiam). DISMISSED. 1 We treat Arzate’s notice regarding the status of the case as a request for judicial notice of the state court order and abstract of judgment dated May 6, 2014. So treated, the request is granted. 2 12-17618
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