United States v. Darnell Garcia

FILED
NOT FOR PUBLICATION JUN 11 2010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. 08-50161
Plaintiff - Appellee, D.C. No. 2:88-cr-00983-TJH
v.
MEMORANDUM *
DARNELL GARCIA,
Defendant - Appellant.
Appeal from the United States District Court
for the Central District of California
Terry J. Hatter, Jr., District Judge, Presiding
Submitted May 25, 2010 **
Before: CANBY, THOMAS, and W. FLETCHER, Circuit Judges.
California state prisoner Darnell Garcia appeals pro se from the district
court’s judgment dismissing his habeas petition. We have jurisdiction under 28
U.S.C. § 1291, and we affirm.
*
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).
Garcia contends that he has served more time than is necessary because the
district court did not modify his presentence investigation report (“PSR”), or order
a supplemental report, to reflect the sentence reduction that he received on direct
appeal. Garcia’s petition challenges the legality, rather than the execution, of his
sentence, and his claims do not qualify for the savings clause of 28 U.S.C. § 2255,
whereby a prisoner may challenge his sentence in a 28 U.S.C. § 2241 petition. We
therefore construe this appeal as a successive § 2255 motion, which must be
certified by this court before it can be presented to the district court. See Harrison
v. Ollison, 519 F.3d 952, 956, 959-960 (9th Cir. 2008). The district court therefore
lacked jurisdiction to consider this claim. See 28 U.S.C. § 2244(b); see also United
States v. Allen, 157 F.3d 661, 664 (9th Cir. 1998).
We construe Garcia’s notice of appeal as a request for a certificate of
appealability on the issue of whether his motion was properly dismissed as second
or successive without authorization. So construed, the motion is denied. See 9th
Cir. R. 22-1(d); see also Slack v. McDaniel, 529 U.S. 473, 483-85 (2000).
AFFIRMED.
2 08-50161