Abel

MEMORANDUM *

Craig Abel (“Abel”), who was convicted in 2002 on five counts of lewd and lascivious conduct with his girlfriend’s children, appeals the district court’s denial of his habeas petition. We review de novo the district court’s decision to deny a petition for a writ of habeas corpus, Clark v. Murphy, 331 F.3d 1062, 1067 (9th Cir.2003), and we affirm.

As a preliminary matter, we affirm our jurisdiction over this appeal. Although Abel’s notice of appeal was untimely pursuant to Federal Rule of Appellate Procedure (“Fed. R.App.P.”) 4(a)(5)(C), that defect does not deprive us of jurisdiction because the Rule’s time limitation is not derived from statute. See Bowles v. Russell, 551 U.S. 205 , 127 S.Ct. 2360, 2364-65 , 168 L.Ed.2d 96 (2007) (holding that time limitations that are not derived from statute are not “jurisdictional”). We also conclude that our exercise of jurisdic *433 tion over this appeal is appropriate under the “functional equivalent” doctrine set forth in Smith v. Barry, 502 U.S. 244, 248-49 , 112 S.Ct. 678 , 116 L.Ed.2d 678 (1992). In Smith , the Court held that a filing may be deemed the functional equivalent of a notice of appeal, provided it…