                                                                            FILED
                            NOT FOR PUBLICATION                             NOV 23 2015

                                                                         MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                       U.S. COURT OF APPEALS



                             FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                         No. 15-55341

               Plaintiff - Appellee,              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.




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