United States of America, Plaintiff-appellee, v. Simon Castorena Sotelo, Defendant-appellant, 83 F.3d 430 (9th Cir. 1996)

MEMORANDUM^** 

Simon Castorena Sotelo appeals pro se the district court's dismissal of his petition for relief under 28 U.S.C. § 2255. Sotelo claims the district court abused its discretion when it found his challenge to a 1979 guilty-plea conviction barred by laches. We have jurisdiction under 28 U.S.C. § 2255, and we affirm.

We review a district court's application of laches for an abuse of discretion. Telink, Inc. v. United States, 24 F.3d 42, 47 (9th Cir. 1994). Unless a petitioner shows that he has acted diligently, laches may bar a section 2255 motion if the delay in filing the motion has prejudiced the government's ability to respond to it. Rules Governing § 2255 Proceedings, 28 U.S.C. § 2255, Rule 9(a), 28 U.S.C. foll. § 2255; Telink, 24 F.3d at 47.

Here, sixteen years after he had been convicted for conspiracy to distribute heroin, Sotelo claims his conviction was barred by double jeopardy. Sotelo alleges the government administratively forfeited $79,690.00 belonging to him prior to entry of his guilty plea without providing him notice of the forfeiture proceedings.

The district court barred Sotelo's claims finding that Sotelo's lengthy delay prejudiced the government's ability to prove that it had notified Sotelo of the seizure of the money and to show that its release of the $79,690 to the tax authorities did not constitute a forfeiture. The district court also found that Sotelo failed to show that he had acted diligently in raising these claims. Because the record supports the district court's conclusion that the delay prejudiced the government and that Sotelo failed to act diligently, the district court did not abuse its discretion when it denied his section 2255 motion. See Rule 9(a); Telink, 24 F.3d at 47-48.

AFFIRMED.