Vallez v. McDaniel

132 F. App'x 688

• Court: Court of Appeals for the Ninth Circuit
• Decided: May 13, 2005
• Docket: No. 03-16757; D.C. No. CV-02-01363-PMP/RJJ
• Status: Published

Opinion

MEMORANDUM

**

Nevada state prisoner Manny Christopher Vallez appeals the district court’s dismissal of his 28 U.S.C. § 2254 petition and the denial of his motion for relief from judgment. We have jurisdiction pursuant to 28 U.S.C. §§ 2253 and 1291. We affirm.

Vallez contends that the district court erred in dismissing his § 2254 petition as mixed without advising him of his options. We disagree. Upon review of the record, we conclude that the district court properly dismissed Vallez’s petition when he failed to respond to the government’s motion to dismiss after the district court granted him several extensions of time and warned him that a failure to respond would result in a dismissal. Cf. Ghazali v. Moran, 46 F.3d 52, 53-54 (9th Cir.1995) (per curiam).

Vallez further contends that the district court abused its discretion in denying his Federal Rule of Civil Procedure 60(b) motion for relief from judgment. We disagree. The district court considered each equitable factor prior to determining whether there was excusable neglect, see Bateman v. United States Postal Serv., 231 F.3d 1220, 1223-24 (9th Cir.2000), and the facts supported its decision.

AFFIRMED.

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.