Leslie

MEMORANDUM *

Nathan Leslie appeals the district court’s order denying his 28 U.S.C. § 2254 habeas corpus petition and his motion to alter or amend judgment. The appeal from the order denying the habeas petition was untimely, so we review only the denial of the motion to alter or amend judgment, as previously held in our Order filed April 12, 2006. Because the motion to alter or amend judgment was untimely, under Rule 59(e), we construe it as one seeking relief under Rule 60(b). Straw v. Bowen, 866 F.2d 1167, 1171 (9th Cir.1989).

Leslie argues that in denying his motion, the district court failed to correct a due process violation and thereby abused its discretion. He argues that his due process rights were compromised when the prosecution failed to correct the allegedly false testimony of Sergeant Cruz at trial and when it referred to that same testimony during closing argument. We disagree.

As to the first issue, we note that Leslie did not raise it in his Rule 59(e) motion and thus has waived the argument on appeal. See United States v. Smith, 424 F.3d 992, 1015 (9th Cir.2005). Even were it properly before us, however, Leslie had to demonstrate that Cruz’s testimony was…