United States v. Lang

MEMORANDUM ^**

Billy Lang appeals the district court’s summary dismissal of his 28 U.S.C. § 2255 motion following his guilty-plea conviction for conspiracy to possess with intent to distribute cocaine in violation of 21 U.S.C. § 846. We have jurisdiction pursuant to 28 U.S.C. § 2253. We review de novo, see Miles v. Prunty, 187 F.3d 1104, 1105 (9th Cir.1999), and we affirm.

Lang contends that his sentence was imposed in violation of the rule announced in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), because the indictment failed to allege a specific quantity of cocaine. Lang further contends that his motion is not time barred because the Antiterrorism and Effective Death Penalty Act’s one year statute of limitations period began to run from the date of the Supreme Court’s decision in Apprendi, as a newly recognized right pursuant to § 2255(3). Finally, Lang contends that his claims are not procedurally defaulted because the constitutional right recognized by Apprendi was so novel that he could not reasonably have been expected to raise it below or on direct appeal.

Lang’s contentions are foreclosed by United States v. Sanchez-Cervantes, 282 F.3d 664, 671 (9th Cir.2002) (holding that Apprendi does not apply retroactively to cases on initial collateral review). Since Apprendi is not retroactive on collateral review, we need not address Lang’s cause and prejudice arguments or his timeliness argument.

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.