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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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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ANATOLI ZAKHAROV,
Petitioner,

v.

UNITED STATES OF AMERICA,
Respondent.

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Civil No. 13cv0180 JAH (BLM)
ORDER DENYING CERTIFICATE
OF APPEALABILITY

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On January 22, 2013, Petitioner, Anatoli Zakharov, appearing pro se, filed a petition

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for a writ of audita querela under 28 U.S.C. section 1651.1 This Court dismissed the

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petition by an order filed April 24, 2013. Petitioner filed a notice of appeal and motion

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for a certificate of appealability on May 9, 2012. On May 13, 2012, the United States

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Court of Appeals for the Ninth Circuit remanded the matter to this Court for the limited

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purpose of granting or denying a certificate of appealability.

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A certificate of appealability is authorized “if the applicant has made a substantial

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showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). To meet this

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threshold showing, a petitioner must show that: (1) the issues are debatable among jurists

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of reason, (2) that a court could resolve the issues in a different manner, or (3) that the

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questions are adequate to deserve encouragement to proceed further. Lambright v.

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Stewart, 220 F.3d 1022, 1025-25 (9th Cir. 2000) (citing Slack v. McDaniel, 529 U.S. 473

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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.
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13cv180

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(2000); Barefoot v. Estelle, 463 U.S. 880 (1983)).

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Petitioner maintains this Court’s denial of his writ was erroneous. The Court

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determined Petitioner’s constitutional challenge to his conviction for conspiracy to possess

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cocaine with intent to distribute on board a vessel and possession of cocaine with intent

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to distribute on board a vessel pursuant to the Maritime Drug Law Enforcement Act

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(“MDLEA”) was not properly brought as a writ for audita querela because it was cognizable

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under 28 U.S.C. section 2255. The Court also determined the petition, which relied upon

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the ruling in Bellaizac-Hurtado, 700 F.3d 1245 (11th Cir. 2012), was without merit

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because Petitioner was on board a vessel on the high seas and the Ninth Circuit has upheld

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the MDLEA as a constitutional exercise of congressional power to punish a person

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possessing narcotics on a vessel on the high seas.2 Based on this Court’s review of the

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record, this Court finds that no issues are debatable among jurists of reason and no issues

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could be resolved in a different manner. This Court further finds that no questions are

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adequate to deserve encouragement to proceed further.

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Accordingly, IT IS HEREBY ORDERED the certificate of appealability is DENIED.
DATED: May 17, 2013

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JOHN A. HOUSTON
United States District Judge

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Bellaizac-Hurtado involved defendants on board a vessel in the territorial waters
of Panama.
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13cv180