Huerto-Carrillo v. United States

49 F. App'x 116

• Court: Court of Appeals for the Ninth Circuit
• Decided: October 10, 2002
• Docket: No. 01-56162; D.C. Nos. CV-01-00210-NAJ, CR-94-01443-NAJ
• Status: Published

Opinion

MEMORANDUM

**

Abel Huerto-Carrillo appeals the district court’s denial as untimely of his 28 U.S.C. § 2255 habeas petition. We review de novo the district court’s denial of a motion under 28 U.S.C. § 2255, and we dismiss for lack of jurisdiction. United States v. Span, 75 F.3d 1383, 1386 (9th Cir.1996).

Huerto-Carrillo contends that his habeas petition is timely because the Supreme Court’s decision in Apprendi v. New Jersey, 530 U.S. 466, 467, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), is a retroactive new rule, and the one-year statute of limitations began to run from the day of the Apprendi decision. The Government asserts that Huerto-Carrillo expressly waived any right to appeal or to collaterally attack the conviction and sentence in his plea agreement. It is well-established that a knowing and voluntary waiver of appeal is enforceable. United States v. NavarroBotello, 912 F.2d 318, 319 (9th Cir.1990). Huerto-Carrillo does not challenge the knowing and voluntary nature of his waiver of appeal, and our review of the record shows that his waiver of appeal is valid; accordingly, we lack jurisdiction to consider this appeal.¹

DISMISSED.

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.

1 . Petitioner’s motion for extension of time to file appellant’s reply brief is GRANTED. The Clerk is directed to file the reply brief received by this Court on March 15, 2002.