United States v. Angel Pena , 375 F. App'x 796 ( 2010 )

FILED
NOT FOR PUBLICATION APR 15 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 08-56408
Plaintiff - Appellee, D.C. Nos. 2:08-cv-01337-DDP
2:04-cr-00837-DDP
v.
ANGEL PENA, MEMORANDUM *
Defendant - Appellant.
Appeal from the United States District Court
for the Central District of California
Dean D. Pregerson, District Judge, Presiding
Submitted April 5, 2010 **
Before: RYMER, McKEOWN, and PAEZ, Circuit Judges.
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
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
28 U.S.C. § 2253, and we affirm.
Pena contends that his 120-month sentence violates Apprendi v. New Jersey,
530 U.S. 466 (2000), because the drug quantity was not admitted or proven to a
jury beyond a reasonable doubt.*** We previously addressed 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 appealability. 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.
***
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. 22-1(e).
2 08-56408