United States v. Brian Berkley, Sr.

FILED
NOT FOR PUBLICATION NOV 23 2015
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 15-55341
Plaintiff - Appellee, D.C. No. 2:14-cv-08497-TJH
v.
MEMORANDUM*
BRIAN DARNELL BERKLEY, Sr.,
Defendant - Appellant.
Appeal from the United States District Court
for the Central District of California
Terry J. Hatter, Jr., District Judge, Presiding
Submitted November 18, 2015**
Before: TASHIMA, OWENS, and FRIEDLAND, Circuit Judges.
Federal prisoner Brian Darnell Berkley, Sr., appeals pro se from the district
court’s denial of his 28 U.S.C. § 2255 motion. We have jurisdiction under 28
U.S.C. § 2253. We review de novo the district court’s decision to deny a section
2255 motion, see United States v. Aguirre-Ganceda, 592 F.3d 1043, 1045 (9th Cir.
*
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).
2010), and we affirm.
Berkley contends that the district court erred by sentencing him as a career
offender under U.S.S.G. § 4B1.1. He also argues that counsel was ineffective for
misadvising him that if he went to trial, he would be subject to the career offender
enhancement and a mandatory life sentence for his violation of 18 U.S.C. § 2113.
The government responds that Berkley’s motion is untimely. We agree.
Berkley filed his motion more than a year after his conviction became final, and he
fails to allege the violation of a right that has been newly recognized by the
Supreme Court and made retroactively applicable to cases on collateral review.
See 28 U.S.C. § 2255(f); Ezell v. United States, 778 F.3d 762, 766 (9th Cir.), cert.
denied, 136 S. Ct. 256 (2015) (the Supreme Court did not announce a new rule in
Descamps v. United States, 133 S. Ct. 2276 (2013)). Because habeas claims that
are not raised before the district court are not cognizable on appeal, see Cacoperdo
v. Demosthenes, 37 F.3d 504, 507 (9th Cir. 1994), we do not consider Berkley’s
claim that he is “actually innocent” of the predicate offenses underlying the
U.S.S.G. § 4B1.1 enhancement.
AFFIRMED.
2 15-55341