Allen

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ERNEST LEE ALLEN,  No. 02-16917 Petitioner-Appellant, D.C. No. v.  CV-01-05994-

ART CALDERON, OWW/DLB

Respondent-Appellee.  OPINION

Appeal from the United States District Court for the Eastern District of California Oliver W. Wanger, District Judge, Presiding

Argued and Submitted December 9, 2004—San Francisco, California

Filed May 3, 2005

Before: Diarmuid F. O’Scannlain, Robert E. Cowen,* and Carlos T. Bea, Circuit Judges.

Opinion by Judge Cowen

*The Honorable Robert E. Cowen, Senior United States Circuit Judge for the Third Circuit, sitting by designation.

4807 4810 ALLEN v. CALDERON

COUNSEL

David M. Porter, Assistant Federal Public Defender, Sacra- mento, California, for the appellant.

Justain P. Riley, Deputy Attorney General, Sacramento, Cali- fornia, for the appellee.

OPINION

COWEN, Circuit Judge:

Ernest Lee Allen appeals the district court’s order dismiss- ing his petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 for failure to…