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


 2 STATE OF NEW MEXICO,

 3          Plaintiff-Appellee,

 4 v.                                                                          NO. 31,802

 5 VICENTE T. SANDOVAL,

 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 Santa Fe, NM

11 for Appellee

12 Vicente T. Sandoval

13 Pro Se-Appellant


14                                 MEMORANDUM OPINION

15 GARCIA, Judge.

16          Vicente T. Sandoval, appearing pro se (Defendant) appeals from the district
 1 court’s order denying his motion to withdraw his 2004 no contest plea. [RP 143]

 2         This Court’s calendar notice proposed to affirm the district court’s order,

 3 because Defendant’s motion was untimely filed, pursuant to Rule 5-801(B) NMRA

 4 (providing that “[a] motion to reduce a sentence may be filed within ninety (90) days

 5 after the sentence is imposed”); see also State of New Mexico v. Esau Barraza, 2011-

 6 NMCA-111, ¶ 12, __ N.M. __, __ P.3d __ (No. 29,807, Sept. 21, 2011) (Although our

 7 Supreme Court has the flexibility to construe a motion as a petition for habeas corpus

 8 even where it was not denominated as such, Case v. Hatch, 2008-NMSC -024, ¶ 12,

 9 144 N.M. 20, 183 P.3d 905, this Court has no such jurisdiction or flexibility to do so.

10 See Rule 5-802(H)(2) (requiring a defendant to petition for certiorari to our Supreme

11 Court in order to obtain review of a district court’s denial of a writ of habeas

12 corpus.”).

13         In the calendar notice, we also noted: (a) that Defendant’s remedy would be

14 to file a new petition for writ of habeas corpus in the district court; (b) that the district

15 court does have jurisdiction to rule on petitions for writ of habeas corpus, pursuant to

16 N.M. Const. art. VI, §13; and (c) that the New Mexico Supreme Court, not this Court,

17 has jurisdiction to review an appeal from the district court’s ruling, pursuant to N.M.

18 Const. art. VI, § 3, and Rule 5-802(H)(2).

19         Defendant has filed a response to the calendar notice, agreeing with the


                                                 2
1 proposed disposition. [Ct. App. File, Response]

2       For the reasons set forth in the calendar notice and in this opinion, we affirm

3 the district court’s order denying Defendant’s motion to withdraw his plea.

4       IT IS SO ORDERED.

5                                              ________________________________
6                                              TIMOTHY L. GARCIA, Judge

7 WE CONCUR:



8 _________________________________
9 JAMES J. WECHSLER, Judge



10 _________________________________
11 LINDA M. VANZI, Judge




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