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U.S. v. Morales

United States Court of Appeals, Ninth Circuit
Jul 29, 2003
71 F. App'x 692 (9th Cir. 2003)

Opinion


71 Fed.Appx. 692 (9th Cir. 2003) UNITED STATES of America, Plaintiff-Appellee, v. Daniel MORALES, Defendant-Appellant. No. 01-17511. D.C. Nos. CV-99-00324-RCB, CR-90-00233-RCB. United States Court of Appeals, Ninth Circuit. July 29, 2003

Submitted July 21, 2003.

The panel unanimously finds this case suitable for decision without oral argument. See Fed. R.App. P. 34(a)(2).

NOT FOR PUBLICATION. (See Federal Rule of Appellate Procedure Rule 36-3)

Federal inmate filed motion to vacate, set aside, or correct sentence. The United States District Court for the District of Arizona, Robert C. Broomfield, J., denied motion, and inmate appealed. The Court of Appeals held that defendant's failure to recognize illegality of government's alleged bribery of principal witnesses did not extend limitations period for filing motion.

Affirmed.

Appeal from the United States District Court for the District of Arizona, Robert C. Broomfield, District Judge, Presiding.

Before LEAVY, HAWKINS and RAWLINSON, Circuit Judges.

MEMORANDUM

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.

Federal prisoner Daniel Morales appeals the district court's order denying his 28 U.S.C. § 2255 motion as untimely. We have jurisdiction pursuant to 28 U.S.C. § 2253, and we affirm.

Morales contends that his § 2255 motion is timely because he did not realize until December 1998 that the government's alleged bribery of principal witnesses who testified against him at trial was, in fact,

Page 693.

illegal. This contention is without merit. See Hasan v. Galaza, 254 F.3d 1150, 1154 n. 3 (9th Cir.2001) (noting that a defendant's failure to appreciate the legal significance of a hitherto known factual predicate does not delay the running of the § 2255 limitations period). Moreover, Morales demonstrates no grounds for equitable tolling. See Frye v. Hickman, 273 F.3d 1144, 1146 (9th Cir.2001) (as amended) (stating that equitable tolling is available only if " 'extraordinary circumstances' beyond the prisoner's control ... made it impossible to file a petition on time").

Appellant Daniel Morales' August 7, 2002, pro se motion to amend counsel's opening brief, filed on August 7, 2002, is granted, and the brief as amended is hereby deemed submitted.

Finally, his claim based on Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000) is foreclosed by United States v. Sanchez-Cervantes 282 F.3d 664, 671 (9th Cir.2002) (holding that Apprendi does not apply retroactively on collateral review).

AFFIRMED.

Counsel's May 17, 2002, motion to withdraw as counsel pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967) is construed as a standard motion to withdraw. See Ellis v. Armenakis, 222 F.3d 627, 632-33 (9th Cir.2000) (stating that the Anders procedure does not apply to post-conviction appeals). So construed, the motion is granted.


Summaries of

U.S. v. Morales

United States Court of Appeals, Ninth Circuit
Jul 29, 2003
71 F. App'x 692 (9th Cir. 2003)
Case details for

U.S. v. Morales

Case Details

Full title:UNITED STATES of America, Plaintiff-Appellee, v. Daniel MORALES…

Court:United States Court of Appeals, Ninth Circuit

Date published: Jul 29, 2003

Citations

71 F. App'x 692 (9th Cir. 2003)

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