Mooers

MEMORANDUM **

Former 1 federal prisoner Jack David Mooers appeals pro se the dismissal of his 28 U.S.C. § 2241 petition challenging his conviction of possession of marijuana with intent to distribute, in violation of 21 U.S.C. § 841 (a)(1). We review de novo the district court’s dismissal of a § 2241 petition, see Tripati v. Henman, 843 F.2d 1160 (9th Cir.1988), and we affirm.

Because Mooers’ petition challenged the legality of his sentence rather than its execution, the district court correctly determined that his claims were more properly brought pursuant to 28 U.S.C. § 2255 . See Doganiere v. United States, 914 F.2d 165, 169-70 (9th Cir.1990). Properly viewed as a motion under § 2255, Mooers’ petition is time-barred by the statute of limitations of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). 28 U.S.C. § 2255 . Mooers’ argument that he is entitled to equitable tolling of the statute is meritless. His release from imprisonment occurred on April 24, 1995, five years before he filed his petition. Any newly discovered evidence was available to Mooers more than a year before he filed his petition. Mooers’ inability to bring a motion under § 2255 because of…