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

2 STATE OF NEW MEXICO, 3 Plaintiff-Appellee, v. NO. 31,802 VICENTE T. SANDOVAL, 6 Defendant-Appellant.

7 APPEAL FROM THE DISTRICT COURT OF OTERO COUNTY William H. Brogan, District Judge Gary K. King, Attorney General Santa Fe, NM for Appellee Vicente T. Sandoval Pro Se-Appellant

14 MEMORANDUM OPINION GARCIA, Judge.

16 Vicente T. Sandoval, appearing pro se (Defendant) appeals from the district 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, because Defendant’s motion was untimely filed, pursuant to Rule 5-801(B) NMRA (providing that “[a] motion to reduce a sentence may be filed within ninety (90) days after the sentence is imposed”); see also State of New Mexico v. Esau Barraza, 2011- NMCA-111, ¶ 12, __ N.M. __, __ P.3d __ (No. 29,807, Sept. 21, 2011) (Although our Supreme Court has the flexibility to construe a motion as a petition for habeas corpus even where it was not denominated as such, Case v. Hatch, 2008-NMSC -024, ¶ 12, 144 N.M. 20, 183 P.3d 905, this Court has no such jurisdiction or flexibility to do so. See Rule 5-802(H)(2) (requiring a defendant to petition for certiorari to our Supreme Court in order to obtain review of a district court’s denial of a writ of habeas corpus.”).

13 In the calendar notice, we also noted: (a) that Defendant’s remedy would be to file a new petition for writ of habeas corpus in the district court; (b) that the district court does have jurisdiction to rule on petitions for writ of habeas corpus, pursuant to N.M. Const. art. VI, §13; and (c) that the New Mexico Supreme Court, not this Court, has jurisdiction to review an appeal from the district court’s ruling, pursuant to N.M. Const. art. VI, § 3, and Rule 5-802(H)(2).

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

1 proposed disposition. [Ct. App. File, Response] 2 For the reasons set forth in the calendar notice and in this opinion, we affirm the district court’s order denying Defendant’s motion to withdraw his plea.

4 IT IS SO ORDERED.

5 ________________________________ 6 TIMOTHY L. GARCIA, Judge WE CONCUR:

8 _________________________________ JAMES J. WECHSLER, Judge

10 _________________________________ LINDA M. VANZI, Judge