United States v. Mays

62 F. App'x 154

• Court: Court of Appeals for the Ninth Circuit
• Decided: April 15, 2003
• Docket: No. 02-16067; D.C. No. CV-00-04031-TEH, CR-90-00293-TEH
• Status: Published

Opinion

MEMORANDUM

**

Gregory Mays appeals the district court’s denial of his 28 U.S.C. § 2255 motion. We have jurisdiction pursuant to 28 U.S.C. § 2253(a). Reviewing de novo, United States v. Benboe, 157 F.3d 1181, 1183 (9th Cir.1998), we affirm.

In his third § 2255 motion, Mays seeks to raise a claim of error under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). The rule of Apprendi, however, cannot be raised in a successive collateral petition because the Supreme Court has not made Apprendi retroactive. Rees v. Hill, 286 F.3d 1103, 1104 (9th Cir.2002) (stating that “we necessarily determined [in United States v. Sanchez-Cervantes, 282 F.3d 664, 665 (9th Cir.), cert. denied, — U.S. -, 123 S.Ct. 48, 154 L.Ed.2d 243 (2002)] that the Supreme Court has not previously made Apprendi retroactive to cases on collateral review”). In addition, Apprendi is not available even on initial collateral review. Sanchez-Cervantes, 282 F.3d at 665 (concluding that “the new rule of criminal procedure announced in Apprendi does not apply retroactively on initial collateral review”).

Thus, the district court properly denied Mays’s motion. See 28 U.S.C. § 2244(b)(2)(A), (b)(4); United States v. Villa-Gonzalez, 208 F.3d 1160, 1165 (9th Cir.2000) (per curiam) (stating that it is proper to deny a successive motion when the record conclusively demonstrates that the statutory requirements for successive motions are not met).

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.