FILED

NOT FOR PUBLICATION

JUL 05 2017

UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

ERNEST SUNRHODES, No. 16-15062

Petitioner-Appellant, D.C. No. 2:14-cv-01368-GMN-VCF v.

QUENTIN BYRNE, Warden, MEMORANDUM*

Respondent-Appellee.

Appeal from the United States District Court for the District of Nevada Gloria M. Navarro, Chief Judge, Presiding

Argued and submitted June 13, 2017 San Francisco, California

Before: SCHROEDER and N.R. SMITH, Circuit Judges, and BATTAGLIA,** District Judge.

Ernest Sunrhodes appeals the district court’s dismissal of his 28 U.S.C.

§ 2254 federal habeas petition, challenging his three Nevada state court

convictions. We affirm.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Anthony J. Battaglia, United States District Judge for the Southern District of California, sitting by designation. The parties do not dispute that Sunrhodes’s petition was filed after the one-

year statute of limitations had expired. As to equitable tolling, Sunrhodes waived

this argument, because he failed to assert it until his motion to amend the

judgment.

Generally, an argument is considered waived if it is not timely raised at the

district court level. Taniguchi v. Schultz, 303 F.3d 950, 958–59 (9th Cir. 2002).

There are three narrow exceptions to this general rule, see id. at 959, none of which

apply here. First, the parties agree that Sunrhodes’s equitable tolling argument

does not present a pure question of law. Second, the law on equitable tolling has

not changed while this appeal was pending. Third, exceptional circumstances did

not prevent Sunrhodes from raising this argument before the district court. “[T]he

mere fact that [Sunrhodes] was pro se,” and did not have knowledge of equitable

tolling, are not “exceptional circumstance[s] that explain[] his failure to raise the

issue in the district court.” Robinson v. Kramer, 588 F.3d 1212, 1217 (9th Cir.

2009). The Respondents’ delay, in asserting that Sunrhodes’s petition was

untimely, is also not an exceptional circumstance. The Respondents did not waive

this timeliness argument, because they had not yet filed a responsive pleading. See

Randle v. Crawford, 604 F.3d 1047, 1052 (9th Cir. 2010). Sunrhodes offers no

2 other reason why the delay prevented him from asserting his equitable tolling

argument.1

AFFIRMED.

1 Sunrhodes’s Motion to Expand the Record on Appeal is DENIED. 3

FILED

Sunrhodes v. Byrne, No. 16-15062,

JUL 05 2017

SCHROEDER, Circuit Judge, concurring: MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

I concur in the result, but write separately because I do not agree with my

colleagues that the issue of equitable tolling was waived. Sunrhodes was treated

badly by his attorneys, who wasted much time and delayed notifying him of the

state courts’ denial of relief. Nevertheless, there was time remaining in which the

petition could have been filed. The district court considered equitable tolling

both in granting the motion to dismiss and denying the Rule 59 motion. Sunrhodes

has able lawyers on appeal. While I do not agree that we should regard the issue as

waived, I do agree with the district court that Sunrhodes did not make an adequate

showing of extraordinary circumstances justifying equitable tolling. See Holland

v. Florida, 560 U.S. 631, 649 (2010).