USA V. BRIAN BERKLEY, SR., No. 15-55341 (9th Cir. 2015)

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FILED NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS NOV 23 2015 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA, Plaintiff - Appellee, No. 15-55341 D.C. No. 2:14-cv-08497-TJH v. MEMORANDUM* BRIAN DARNELL BERKLEY, Sr., Defendant - Appellant. Appeal from the United States District Court for the Central District of California Terry J. Hatter, Jr., District Judge, Presiding Submitted November 18, 2015** Before: TASHIMA, OWENS, and FRIEDLAND, Circuit Judges. Federal prisoner Brian Darnell Berkley, Sr., appeals pro se from the district court’s denial of his 28 U.S.C. § 2255 motion. We have jurisdiction under 28 U.S.C. § 2253. We review de novo the district court’s decision to deny a section 2255 motion, see United States v. Aguirre-Ganceda, 592 F.3d 1043, 1045 (9th Cir. * 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). 2010), and we affirm. Berkley contends that the district court erred by sentencing him as a career offender under U.S.S.G. § 4B1.1. He also argues that counsel was ineffective for misadvising him that if he went to trial, he would be subject to the career offender enhancement and a mandatory life sentence for his violation of 18 U.S.C. § 2113. The government responds that Berkley’s motion is untimely. We agree. Berkley filed his motion more than a year after his conviction became final, and he fails to allege the violation of a right that has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review. See 28 U.S.C. § 2255(f); Ezell v. United States, 778 F.3d 762, 766 (9th Cir.), cert. denied, 136 S. Ct. 256 (2015) (the Supreme Court did not announce a new rule in Descamps v. United States, 133 S. Ct. 2276 (2013)). Because habeas claims that are not raised before the district court are not cognizable on appeal, see Cacoperdo v. Demosthenes, 37 F.3d 504, 507 (9th Cir. 1994), we do not consider Berkley’s claim that he is “actually innocent” of the predicate offenses underlying the U.S.S.G. § 4B1.1 enhancement. AFFIRMED. 2 15-55341