Ricardo Perez v. Jeremy Bean

• Court: Court of Appeals for the Ninth Circuit
• Decided: October 25, 2024
• Docket: 22-16640
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS OCT 25 2024 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

RICARDO PEREZ, No. 22-16640

Petitioner-Appellant, D.C. No. 2:17-cv-01393-JCM-VCF v.

JEREMY BEAN, Warden, MEMORANDUM*

Respondent-Appellee.

Appeal from the United States District Court for the District of Nevada James C. Mahan, District Judge, Presiding

Argued and Submitted October 7, 2024 Las Vegas, Nevada

Before: BEA, CHRISTEN, and BENNETT, Circuit Judges.

Petitioner Ricardo Perez appeals the district court’s order denying his

motion for relief from the judgment, which dismissed his petition for a writ of

habeas corpus, 28 U.S.C. § 2254. Because the parties are familiar with the facts,

we do not recount them here. We have jurisdiction pursuant to 28 U.S.C. § 1291.

We review for abuse of discretion the district court’s denial of a motion filed

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. pursuant to Fed. R. Civ. P. 60(b)(6). Bynoe v. Baca, 966 F.3d 972, 979 (9th Cir.

2020). We affirm.

A Rule 60(b)(6) motion, including one premised on attorney abandonment,

“must be made within a reasonable time.” Fed. R. Civ. P. 60(c)(1). “[R]elief may

only be granted where the petitioner has diligently pursued review of his claims.”

Foley v. Biter, 793 F.3d 998, 1004 (9th Cir. 2015) (citing Gonzalez v. Crosby, 545

U.S. 524, 537 (2005)). “Reasonable diligence ‘does not require an overzealous or

extreme pursuit of any and every avenue of relief’; instead, it ‘requires the effort

that a reasonable person might be expected to deliver under his or her particular

circumstances.’” Brooks v. Yates, 818 F.3d 532, 535 (9th Cir. 2016) (quoting Doe

v. Busby, 661 F.3d 1001, 1015 (9th Cir. 2011)).

Here, Perez filed his Rule 60(b)(6) motion on August 16, 2022, more than

three years after the district court dismissed Perez’s petition. The district court

concluded that Perez should have been aware by February 2021 that his attorney,

Derrick Penney, abandoned him. Although Perez contends that he did not learn of

Penney’s abandonment until November 2021, he provides no explanation for the

delay in filing his motion. Accordingly, we conclude that the district court did not

abuse its discretion by finding that Perez failed to exercise diligence.

AFFIRMED.