NOT FOR PUBLICATION FILED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.
2 16-16668