United States v. Cervantes

104 F. App'x 669

• Court: Court of Appeals for the Ninth Circuit
• Decided: August 13, 2004
• Docket: No. 03-56166
• Status: Published

Opinion

MEMORANDUM

**

Hector Morales Cervantes appeals pro se the district court’s judgment denying his 28 U.S.C. § 2255 motion and his application for writ of habeas corpus challenging his conviction and 235-month sentence for manufacturing and possessing methamphetamine in violation of 21 U.S.C. § 841. We have jurisdiction pursuant to 28 U.S.C. § 2253. We review de novo, see United States v. Valdez, 195 F.3d 544, 546 (9th Cir.1999), and we affirm.

This court’s June 4, 2004 Order to Show Cause is discharged.

Cervantes contends that the district court erred by dismissing his § 2255 motion as untimely because the late filing was caused by the district court’s failure to timely inform him of its earlier decision on his application for writ of habeas corpus under 28 U.S.C. § 1651. We disagree. Because the record shows that Cervantes was not prevented from timely filing his § 2255 motion by “extraordinary circumstances” beyond his control, he is not entitled to equitable tolling. See United States v. Battles, 362 F.3d 1195, 1197 (9th Cir.2004); Fail v. Hubbard, 315 F.3d 1059, 1062 (9th Cir.2001).

Because we conclude that the district court properly denied Cervantes’ 28 U.S.C. § 1651 application, his request that we remand for reconsideration of his § 1651 application is denied. See United States v. Valdez-Pacheco, 237 F.3d 1077, 1080 (9th Cir.2001) (per curiam).

AFFIRMED.

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.