Johnson v. United States

5 F. App'x 707

• Court: Court of Appeals for the Ninth Circuit
• Decided: March 5, 2001
• Docket: No. 00-30228; D.C. No. CR-89-00190-JCC
• Status: Published

Opinion

MEMORANDUM²

Melvin Vernell Johnson petitions pro se for review of his 1990 conviction and sentence for conspiracy to distribute drugs (21 U.S.C. § 846), one count of distribution of in excess of fifty grams of cocaine base (21 U.S.C. § 841(a)(1)), and thirteen counts of money structuring (18 U.S.C. § 5324).

Johnson asserts that the district court committed jurisdictional error when it convicted and sentenced him for cocaine base/ crack cocaine where the substance has not been scheduled or controlled under 21 U.S.C. §§ 811 or 812 at the time of Johnson’s indictment.

The government asserts that a direct appeal is untimely and that there is no basis to interpret this claim as an action brought under 28 U.S.C. § 2255. We agree. See Fed. RApp. P. 4(b)(1)(A) (criminal defendant’s notice of appeal must be filed in district court within ten days of entry of judgment); United States v. Valdez, 195 F.3d 544, 546 (9th Cir.1999) (applying AEDPA’s one-year statute of limitations to § 2255 motion). Accordingly, we lack jurisdiction to consider this petition.

DENIED.

2 . This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as may be provided by 9th Cir. R. 36-3.