Bryan Le Mar Smith, Sr., Petitioner-appellant, v. James H. Gomez, Respondent-appellee, 92 F.3d 1194 (9th Cir. 1996)

MEMORANDUM^*** 

Bryan Le Mar Smith, Sr. appeals the district court's dismissal of his 28 U.S.C. § 2254 habeas petition. Smith alleges that the district court erred when it dismissed his entire petition with prejudice as a sanction after it found that Smith had introduced fraudulent evidence in support of one of his four claims. We affirm.

The district court's findings relating to fraud and materiality are not clearly erroneous and sanctions of some degree were clearly justified. The district court adequately considered the efficacy of lesser sanctions; the decision to dismiss the entire petition with prejudice does not constitute an abuse of discretion on this record.

We also reject Smith's further argument that his absence from the evidentiary hearing violated his right to due process. As a habeas petitioner, Smith did not have the right to attend this hearing. Wade v. Calderon, 29 F.3d 1312, 1325-26 (9th Cir. 1994). Furthermore, Smith waived his right to object to the holding of an evidentiary hearing in his absence as he failed to raise this objection before the district court. United States v. Flores-Payon, 942 F.2d 556 (9th Cir. 1991). Therefore, we affirm the district court's action below.

Affirmed.