     This memorandum opinion was not selected for publication in the New Mexico Appellate Reports.
     Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum
     opinions.   Please also note that this electronic memorandum opinion may contain
     computer-generated errors or other deviations from the official paper version filed by the Court of
     Appeals and does not include the filing date.

 1        IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

 2 STATE OF NEW MEXICO,

 3          Plaintiff-Appellee,

 4 v.                                                                                   NO. 31,945

 5 GARY MAYLON SANDERS,

 6          Defendant-Appellant.

 7 APPEAL FROM THE DISTRICT COURT OF OTERO COUNTY
 8 William H. Brogan, District Judge

 9 Gary K. King, Attorney General
10 Margaret McLean, Assistant Attorney General
11 Santa Fe, NM

12 for Appellee

13 Gary Sanders
14 Las Cruces, NM

15 Pro Se Appellant

16                                 MEMORANDUM OPINION

17 VANZI, Judge.
 1        Defendant, Gary Maylon Sanders, appearing pro se, appeals from the district

 2 court’s denial of his motion to reconsider sentence. The district court concluded it

 3 lacked jurisdiction to consider the motion because it was not timely filed pursuant to

 4 Rule 5-801(B) NMRA. We affirm.

 5 BACKGROUND

 6        Pursuant to a plea and disposition agreement dated June 19, 2006, Defendant

 7 pled no contest to multiple offenses and admitted to having a prior felony conviction.

 8 He was sentenced on October 6, 2006, to a term of 20 years’ imprisonment.

 9 Defendant filed an amended petition for writ of habeas corpus on June 23, 2009,

10 which the district court denied on September 15, 2011. Defendant filed a petition for

11 writ of certiorari with the New Mexico Supreme Court, which the Supreme Court

12 denied on October 25, 2011. On November 18, 2011, Defendant filed a motion to

13 reconsider sentence in the district court pursuant to Rule 5-801. The State argued

14 Defendant’s motion was untimely pursuant to Rule 5-801(B). The district court

15 denied Defendant’s motion, concluding that the motion was untimely, and it therefore

16 lacked jurisdiction. Defendant challenges this determination on appeal.

17 DISCUSSION




                                             2
 1        “We review de novo the legal question of whether a trial court has jurisdiction

 2 in a particular case.” State v. Torres, 2012-NMCA-026, ¶ 11, 272 P.3d 689, (internal

 3 quotation marks and citation omitted), cert. granted, 2012-NMCERT-003, ___ P.3d

 4 ___.

 5        We apply the same rules of construction to procedural rules adopted by
 6        the Supreme Court as we do to statutes. According to those rules of
 7        construction, our overarching goal is to determine the underlying intent
 8        of the drafters, and we begin that task by parsing the plain language of
 9        the rule.

10 Id. ¶ 12 (internal quotation marks and citations omitted).

11        The district court determined it lacked jurisdiction to consider Defendant’s

12 motion for reconsideration under Rule 5-801(B). This rule states, in pertinent part:

13        A motion to reduce a sentence may be filed within ninety (90) days after
14        the sentence is imposed, or within ninety (90) days after receipt by the
15        court of a mandate issued upon affirmance of the judgment or dismissal
16        of the appeal, or within ninety (90) days after entry of any order or
17        judgment of the appellate court denying review of, or having the effect
18        of upholding, a judgment of conviction.

19 Rule 5-801(B) (emphasis added). Defendant contends that his motion to reconsider

20 sentence was timely because it was filed within ninety days of the Supreme Court’s

21 order denying his petition for writ of certiorari, which is “any order” within the

22 meaning of Rule 5-801(B). The State contends the motion was untimely because the

23 Supreme Court’s order denying Defendant’s petition for writ of certiorari is not an

                                             3
 1 “order . . . denying review of, or having the effect of upholding, a judgment of

 2 conviction.” We agree with the State.

 3        An order of the Supreme Court denying a petition for a writ of certiorari from

 4 a habeas corpus petitioner is not an order triggering the Rule 5-801(B) clock. The

 5 phrase “any order” in Rule 5-801(B) cannot be read independently from the clause in

 6 which it is contained. This phrase is qualified by the language “denying review of,

 7 or having the effect of upholding, a judgment of conviction” and must be read in

 8 conjunction with that language. Rule 5-801(B). Thus, as relevant here, the triggering

 9 event for the Rule 5-801(B) clock is the “entry of any order or judgment of the

10 appellate court denying review of, or having the effect of upholding, a judgment of

11 conviction.” An order denying a petition for writ of certiorari in a habeas proceeding

12 is neither an order denying review of a judgment of conviction, nor an order having

13 the effect of upholding a judgment of conviction.

14        This interpretation is bolstered by our review of Rule 5-801(B) as a whole. The

15 rule identifies two additional events triggering the Rule 5-801(B) clock: imposition

16 of sentence and “receipt by the court of a mandate issued upon affirmance of the

17 judgment or dismissal of the appeal[.]” Rule 5-801(B). These two events are clearly

18 tied to a defendant’s sentence and direct appeal; they do not extend to a habeas corpus


                                              4
 1 petition. We believe the drafters intended for this entire rule, including the “any order

 2 or judgment” language relied upon by Defendant in this case, to limit a defendant to

 3 seeking modification of his sentence within a time frame triggered by events relating

 4 to his original sentence and his direct appeal.

 5        Defendant cites State v. Ervin, 2002-NMCA-012, 131 N.M. 640, 41 P.3d 908,

 6 in support of his reading of Rule 5-801(B). In Ervin, we declined to consider the

 7 defendant’s argument that the sex offender registration requirement imposed on him

 8 was unconstitutional and noted that the defendant could still raise the issue in the

 9 district court pursuant to Rule 5-801(B). Ervin, 2002-NMCA-012, ¶ 25. Ervin

10 involved a direct appeal, not a petition for habeas corpus, see id. ¶ 1, and thus is

11 inapposite. The fact that the defendant in Ervin may have had recourse under Rule 5-

12 801(B) does not mean Defendant is entitled to recourse here. Under the plain

13 language of Rule 5-801(B), Defendant’s motion to reconsider sentence was not timely

14 filed and, therefore, the district court lacked jurisdiction to consider it.

15 CONCLUSION

16        We affirm the district court’s denial of Defendant’s motion to reconsider

17 sentence.

18        IT IS SO ORDERED.


                                                5
1                               __________________________________
2                               LINDA M. VANZI, Judge


3 WE CONCUR:



4 _________________________________
5 JAMES J. WECHSLER, Judge



6 _________________________________
7 JONATHAN B. SUTIN, Judge




                                  6
