Bobadilla

MEMORANDUM **

Sergio Daniel Bobadilla (“Bobadilla”) appeals the district court’s dismissal of his petition for writ of habeas corpus pursuant to 28 U.S.C. § 2255 . The district court dismissed the petition as untimely because the petition was filed more than one year after the time for seeking certiorari in the Supreme Court expired. In determining the timeliness of Bobadilla’s petition, the district court relied on United States v. Garcia, 210 F.3d 1058, 1060 (9th Cir.2000), a case decided five months after the filing of Bobadilla’s petition. Bobadilla argues that the district court’s retroactive application of Garcia violates due process and constitutes an improper application of new law. We disagree with Bobadilla and, therefore, affirm the district court’s decision.

I.

Garcia holds that the one year limitations period for filing a motion to attack a conviction under 28 U.S.C. § 2255 begins when the time for filing a petition for a writ of certiorari expires. According to Bobadilla, Garcia should not apply retroactively, on collateral review, because a previous Ninth Circuit case had already addressed the issue and, therefore, he reasonably relied on the previous case. See…

concurring.

I concur in the judgment because Calderon v. U.S. Dist. Court (Beeler), 128 F.3d 1283 , 1286 n. 2 (9th Cir.1997), cert. denied, Beeler v. Calderon, 523 U.S. 1061 , 118 S.Ct. 1389 , 140 L.Ed.2d 648 , overruled in part on other grounds by Calderon v. United States Dist. Court (Kelly), 163 F.3d 530 (9th Cir.1998), discussed finality only in a footnote of dicta. While the Seventh Circuit had held that the limitations period began to run on the date the court of appeals issues its mandate, in Gendron v. United States, 154 F.3d 672, 674 (7th Cir. 1998), the Third Circuit had held otherwise in Kapral v. United States, 166 F.3d 565, 577 (3rd Cir.1999). Thus, there was a circuit split prior to the expiration of Bobadilla’s one-year period for filing his § 2255 petition. In these circumstances, a change in the law is not unforeseeable. See United States v. Rodgers, 466 U.S. 475, 484 , 104 S.Ct. 1942 , 80 L.Ed.2d 492 (1984). As due process bars retroactive application of a change in the law only when unforeseeable, see United States v. Qualls, 172 F.3d 1136 , 1139 n. 1 (9th Cir.1999), United States v. Garcia, 210 F.3d 1058 (9th Cir. 2000) , was not impermissibly applied…