Unpublished Disposition, 857 F.2d 1478 (9th Cir. 1988)

MEMORANDUM^** 

Jones appeals a judgment adverse to his complaint against Eugene F. Lynch, United States District Judge, Northern District of California. We affirm.

The district court liberally construed Jones' complaint as a suit for damages under 42 U.S.C. § 1983 and as a petition for habeas corpus under 28 U.S.C. § 2241(c). It then dismissed the claim for damages on the ground that the acts of Judge Lynch in sentencing Jones were acts performed in his judicial capacity and thus immune from liability under 42 U.S.C. § 1983. The petition for habeas corpus was dismissed without prejudice as untimely because premature.

Jones' appeal was timely. He appears to argue that his sentence was incorrect because, while he was convicted of conspiring to manufacture methamphetamine among other things, 21 U.S.C. § 812, which requires that the schedules of substances be republished annually, was not complied with. The basis for this claim appears to be that republication in the Code of Federal Regulations (CFR) does not meet the requirements of 21 U.S.C. § 812. Jones makes no other arguments in this appeal.

The republication issue was neither raised in, nor considered by, the trial court. Therefore, we will not consider it here. No special circumstances exist that would justify consideration by us. Jones raises no other issue in this appeal.

AFFIRMED.