United States of America, Plaintiff-appellee, v. Evert Virgil Bozarth, Defendant-appellant, 119 F.3d 7 (9th Cir. 1997)

MEMORANDUM^* 

Evert Virgil Bozarth appeals pro se the district court's denial of his pro se "motion for leave to file belated appeal" in an action where Bozarth was sentenced for cocaine distribution to ten years imprisonment plus a fine. Bozarth's motion stated that in 1988, the district court did not advise him at sentencing that he had the right to appeal his sentence, and he now sought to file a belated appeal. The government argues that jurisdiction over Bozarth's motion is lacking because it was filed more than 120 days after his sentence became final. We agree.

This court has held, however, that a properly filed motion under 28 U.S.C. § 2255 may raise the issue whether a defendant in these circumstances could be entitled to resentencing with notice of the right to appeal. Biro v. United States, 24 F.3d 1140, 1141-42 (9th Cir. 1994). Here, the district court did not construe Bozarth's pro se motion as a section 2255 action. See United States v. Johnson, 988 F.2d 941, 943 (9th Cir. 1993).

We therefore remand to the district court to allow that court to allow Bozarth to file a section 2255 motion so the district court can consider the merits of Bozarth's claims that (1) he did not waive the right to appeal in his written plea agreement, and (2) at sentencing, the district court failed to comply with Fed. R. Crim. P. 32(a) (2) by advising Bozarth he had the right to appeal only his sentence. See Biro, 24 F.3d at 1142.

REMANDED.