                                                                           FILED
                             NOT FOR PUBLICATION                            APR 15 2010

                                                                        MOLLY C. DWYER, CLERK
                      UNITED STATES COURT OF APPEALS                     U .S. C O U R T OF APPE ALS




                             FOR THE NINTH CIRCUIT



UNITED STATES OF AMERICA,                         No. 08-56408

               Plaintiff - Appellee,              D.C. Nos. 2:08-cv-01337-DDP
                                                            2:04-cr-00837-DDP
  v.

ANGEL PENA,                                       MEMORANDUM *

               Defendant - Appellant.



                     Appeal from the United States District Court
                        for the Central District of California
                     Dean D. Pregerson, District Judge, Presiding

                               Submitted April 5, 2010 **


Before:        RYMER, McKEOWN, and PAEZ, Circuit Judges.

       Federal prisoner Angel Pena appeals pro se from the district court’s order

dismissing his 28 U.S.C. § 2255 motion. We have jurisdiction pursuant to



          *
             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).
28 U.S.C. § 2253, and we affirm.

      Pena contends that his 120-month sentence violates Apprendi v. New Jersey,

530 U.S. 466 (2000), because the drug quantity was not admitted or proven to a

jury beyond a reasonable doubt.*** We previously addressed and rejected this

contention in Pena’s direct appeal, see United States v. Pena, 223 Fed.Appx. 589,

590 (9th Cir. 2007), and therefore Pena may not re-litigate it in a § 2255 motion.

See United States v. Hayes, 231 F.3d 1132, 1139 (9th Cir. 2000); see also United

States v. Alexander, 106 F.3d 874, 876 (9th Cir. 1997).

      To the extent that Pena is raising additional arguments, we construe them as

a motion to expand the certificate of appealability. So construed, the motion is

denied. See 9th Cir. R. 22-1(e); see also Hiivala v. Wood, 195 F.3d 1098, 1104-05

(9th Cir. 1999) (per curiam).

      AFFIRMED.




        ***
             We note that on August 13, 2008, the district court issued an order
granting a certificate of appealability (“COA”) on this issue, which it filed under
docket # 04-cr-00837-DDP. Subsequently, on September 9, 2009, the district court
issued a second order denying a COA on the same issue, filed under docket # 08-
cv-01337-DDP. To the extent necessary, we sua sponte grant a COA with respect
to the same issues set forth in the district court’s August 13, 2008, order. See 28
U.S.C. § 2253(c)(3); see also 9th Cir. R. 22-1(e).

                                          2                                   08-56408
