Zakharov v. United States of America

Filing 11

ORDER denying Certificate of Appealability. Signed by Judge John A. Houston on 5/17/2013. (USCA Case Number 13-55817. Order electronically transmitted to US Court of Appeals. All non-registered users served via U.S. Mail Service.) (akr)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 12 13 ANATOLI ZAKHAROV, Petitioner, v. UNITED STATES OF AMERICA, Respondent. 14 ) ) ) ) ) ) ) ) ) Civil No. 13cv0180 JAH (BLM) ORDER DENYING CERTIFICATE OF APPEALABILITY 15 On January 22, 2013, Petitioner, Anatoli Zakharov, appearing pro se, filed a petition 16 for a writ of audita querela under 28 U.S.C. section 1651.1 This Court dismissed the 17 petition by an order filed April 24, 2013. Petitioner filed a notice of appeal and motion 18 for a certificate of appealability on May 9, 2012. On May 13, 2012, the United States 19 Court of Appeals for the Ninth Circuit remanded the matter to this Court for the limited 20 purpose of granting or denying a certificate of appealability. 21 A certificate of appealability is authorized “if the applicant has made a substantial 22 showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). To meet this 23 threshold showing, a petitioner must show that: (1) the issues are debatable among jurists 24 of reason, (2) that a court could resolve the issues in a different manner, or (3) that the 25 questions are adequate to deserve encouragement to proceed further. Lambright v. 26 Stewart, 220 F.3d 1022, 1025-25 (9th Cir. 2000) (citing Slack v. McDaniel, 529 U.S. 473 27 At the time he filed the petition, Petitioner did not pay the filing fee or move to proceed in forma pauperis. He eventually filed a motion to proceed in forma pauperis on March 7, 2013. 1 28 13cv180 1 (2000); Barefoot v. Estelle, 463 U.S. 880 (1983)). 2 Petitioner maintains this Court’s denial of his writ was erroneous. The Court 3 determined Petitioner’s constitutional challenge to his conviction for conspiracy to possess 4 cocaine with intent to distribute on board a vessel and possession of cocaine with intent 5 to distribute on board a vessel pursuant to the Maritime Drug Law Enforcement Act 6 (“MDLEA”) was not properly brought as a writ for audita querela because it was cognizable 7 under 28 U.S.C. section 2255. The Court also determined the petition, which relied upon 8 the ruling in Bellaizac-Hurtado, 700 F.3d 1245 (11th Cir. 2012), was without merit 9 because Petitioner was on board a vessel on the high seas and the Ninth Circuit has upheld 10 the MDLEA as a constitutional exercise of congressional power to punish a person 11 possessing narcotics on a vessel on the high seas.2 Based on this Court’s review of the 12 record, this Court finds that no issues are debatable among jurists of reason and no issues 13 could be resolved in a different manner. This Court further finds that no questions are 14 adequate to deserve encouragement to proceed further. 15 16 Accordingly, IT IS HEREBY ORDERED the certificate of appealability is DENIED. DATED: May 17, 2013 17 JOHN A. HOUSTON United States District Judge 18 19 20 21 22 23 24 25 26 27 28 Bellaizac-Hurtado involved defendants on board a vessel in the territorial waters of Panama. 2 2 13cv180

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