United States v. Angel Pena

375 F. App'x 796

Opinion

MEMORANDUM **

Federal prisoner Angel Pena appeals pro se from the district court’s order dismissing his 28 U.S.C. § 2255 motion. We have jurisdiction pursuant to 28 U.S.C. § 2253, and we affirm.

Pena contends that his 120-month sentence violates Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), because the drug quantity was not admitted or proven to a jury beyond a reasonable doubt. *** We previously ad dressed and rejected this contention in Pena’s direct appeal, see United States v. Pena, 223 Fed.Appx. 589, 590 (9th Cir.2007), and therefore Pena may not re-litigate it in a § 2255 motion. See United States v. Hayes, 231 F.3d 1132, 1139 (9th Cir.2000); see also United States v. Alexander, 106 F.3d 874, 876 (9th Cir.1997).

To the extent that Pena is raising additional arguments, we construe them as a motion to expand the certificate of appeal-ability. So construed, the motion is denied. See 9th Cir. R. 22-1(e); see also Hiivala v. Wood, 195 F.3d 1098, 1104-05 (9th Cir.1999) (per curiam).

AFFIRMED.

** This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.

*** We note that on August 13, 2008, the district court issued an order granting a certificate of appealability ("COA”) on this issue, which it filed under docket # 04-cr-00837-DDP. Subsequently, on September 9, 2009, the district court issued a second order denying a COA on the same issue, filed under docket # 08-cv-01337-DDP. To the extent necessary, we sua sponte grant a COA with respect to the same issues set forth in the district court's August 13, 2008, order. See 28 U.S.C. § 2253(c)(3); see also 9th Cir. R. 22-l(e).