United States v. Tydingco

51 F. App'x 775

• Court: Court of Appeals for the Ninth Circuit
• Decided: December 5, 2002
• Docket: No. 01-16774; D.C. No. CR-99-00191-WBS
• Status: Published

Opinion

MEMORANDUM

**

Federal prisoner Joseph Carl-Borja Ty-dingco appeals pro se the district court’s denial of his 28 U.S.C. § 2255 motion to vacate, set aside, or correct his sentence for conspiracy to manufacture methamphetamine. We have jurisdiction pursuant to 28 U.S.C. § 2253, and we affirm.

Tydingeo contends that the district court erred by denying his petition on the ground that Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000) does not apply retroactively to cases on initial collateral review. Because Ty-dingeo failed to raise his Apprendi claim on direct appeal, or demonstrate cause and actual prejudice, it is procedurally defaulted.¹ See Bousley v. United States, 523 U.S. 614, 621-22, 118 S.Ct. 1604, 140 L.Ed.2d 828 (1998); Marino v. Vasquez, 812 F.2d 499, 508 (9th Cir.1987) (commenting that court of appeals may affirm district court on any grounds contained in the record).

AFFIRMED.

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 Ninth Circuit Rule 36-3.

1 . To the extent that Tydingeo raises other issues in his brief, we do not consider them because they fall outside the scope of the certificate of appealability. See United States v. Christakis, 238 F.3d 1164, 1168 (9th Cir.2001).