U.S. Court of Appeals for the Ninth Circuit, 2009

United States v. Walker

U.S. Court of Appeals for the Ninth Circuit · Decided February 12, 2009 · Fletcher, Beezer, Fisher

555 F.3d 1047; 2009 U.S. App. LEXIS 2724; 2009 WL 331529 (Federal Reporter, Third Series)

Counsel

William R. Reed, Esq., Office of the U.S. Attorney Lloyd George Federal Bldg., Las Vegas, NV, for Plaintiff-Appellee., Glynn Burroughs Cartledge, Esq., Law Offices Of Glynn Burroughs Cartledge, Reno, NV, for Defendant-Appellant.

Opinion

FOR PUBLICATION UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA,  No. 04-10616

Plaintiff-Appellee, D.C. No. v.

 CR-03-00516-PMP

District of Nevada, FRED WALKER,

Defendant-Appellant. Las Vegas

 ORDER

Filed February 12, 2009

Before: Betty B. Fletcher, Robert R. Beezer and

Raymond C. Fisher, Circuit Judges. Order; Concurrence by Judge Beezer ORDER

The language in the statute supporting Walker’s sentence is quite different from the provisions construed in the cases cited in Walker’s motion. The analysis from those cases is inappli- cable to Walker’s situation. He therefore has not presented the exceptional circumstances and equities necessary to support the extraordinary remedy of recalling the mandate. See Car- rington v. United States, 503 F.3d 888, 891 (9th Cir. 2007). Accordingly, Walker’s motion to recall the mandate, filed on January 12, 2009, is denied.

BEEZER, Circuit Judge, concurring:

I write separately because I believe we lack the power to reach the merits of Walker’s motion which seeks to modify a

1753

1754 UNITED STATES v. WALKER final judgment of this court. We filed our memorandum dis- position on May 17, 2006, and the mandate, which returned the case to the district court, issued on June 8, 2006.

Walker’s only other avenue for relief was to timely petition the United States Supreme Court for a writ of certiorari. This he did not do. Walker’s conviction became final 90 days after our mandate issued. See Sup. Ct. R. 13; Tanner v. McDanieli, 493 F.3d 1135, 1141 n.4 (9th Cir. 2007).

Walker’s motion is premised on the retroactive application of a Supreme Court decision that was issued after Walker’s conviction became final. See Lopez v. Gonzales, 549 U.S. 47 (2006). No court has held the Lopez opinion to be retroactive. Thus, I do not believe we have the power to consider Walk- er’s motion. See Teague v. Lane, 489 U.S. 288, 310 (1989); United States v. Cruz, 423 F.3d 1119, 1120 (9th Cir. 2005); see also Carrington v. United States, 503 F.3d 888, 891 (9th Cir. 2007) (denying a motion to recall the mandate as barred by Cruz and alternatively based on lack of exceptional cir- cumstances).

For these reasons, I would dismiss for lack of jurisdiction.

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