Omar Lopez-Castillo v. Pat Glebe

FILED
NOT FOR PUBLICATION MAR 16 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
OMAR LOPEZ-CASTILLO, No. 10-35441
Petitioner - Appellant, D.C. No. 2:08-cv-01598-JLR
v.
MEMORANDUM *
PAT GLEBE,
Respondent - Appellee.
Appeal from the United States District Court
for the Western District of Washington
James L. Robart, District Judge, Presiding
Argued and Submitted March 10, 2011
Seattle, Washington
Before: FISHER, GOULD, and TALLMAN, Circuit Judges.
Omar Lopez-Castillo appeals the district court’s dismissal of his 28 U.S.C.
§ 2254 petition for a writ of habeas corpus as untimely. 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 Ninth Circuit Rule 36-3.
We reject Lopez-Castillo’s argument that the burden was on Respondent to
show that Lopez-Castillo was not entitled to equitable tolling. Rather, Lopez-
Castillo had the burden to establish two elements: (1) that he has been pursuing his
rights diligently, and (2) that some extraordinary circumstance stood in his way.
Holland v. Florida, 560 U.S. ___ , 130 S. Ct. 2549, 2562 (2010); Mendoza v.
Carey, 449 F.3d 1065, 1068 (9th Cir. 2006).
It was not an abuse of discretion for the district court to deny an evidentiary
hearing on the issue of Lopez-Castillo’s entitlement to equitable tolling, and the
district court properly dismissed the petition as untimely under 28 U.S.C.
§ 2244(d). Lopez-Castillo did not adequately allege that he acted with the requisite
diligence in pursuing his rights, nor did he offer to bring forward sufficient
evidence of diligence in response to the magistrate judge’s specific inquiry about
what evidence he would present if granted a hearing. See Bills v. Clark, 628 F.3d
1092, 1100–01 (9th Cir. 2010); Mendoza, 449 F.3d at 1069–71 & n.6.
AFFIRMED.
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