                                                                           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                           NOT FOR PUBLICATION                              MAR 16 2011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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