Chaverra-Serna v. USA

Filing 9

ORDER denying 1 --motion to vacate/set aside/correct sentence (2255); denying a certificate of appealability, denying leave to appeal in forma pauperis; directing the Clerk to ENTER JUDGMENT against Chaverra-Serna and to CLOSE the case. Signed by Judge Steven D. Merryday on 1/16/2015. (BK)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
UNITED STATES OF AMERICA
v.

CASE NO. 8:11-cr-607-T-23TGW
8:13-cv-1412-T-23TGW

ALEXANDER CHAVERRA-SERNA
/
ORDER
Chaverra-Serna’s motion to vacate under 28 U.S.C. § 2255 (Doc. 1) challenges
the validity of his conviction for conspiracy to possess with the intent to distribute
cocaine while aboard a vessel, for which offense he is imprisoned for 121 months.
Chaverra-Serna alleges that, under United States v. Bellaizac-Hurtado, 700 F.3d 1245
(11th Cir. 2012), trial counsel rendered ineffective assistance by not challenging the
district court’s subject matter jurisdiction. The United States correctly argues (Doc. 4)
that Hurtado is inapplicable. The linchpin to Chaverra-Serna’s challenge is the
definition of “international water.”
Chaverra-Serna pleaded guilty with the benefit of a plea agreement, in which
he stipulates to the following facts (Doc. 50 in 8:11-cr-607-T-23TGW):
During November of 2011 the Defendant was a knowing and
willing participant in a drug trafficking conspiracy involving the
maritime smuggling of a multi-hundred kilogram cocaine
shipment in the Caribbean Sea, while on board a vessel subject
to the jurisdiction of the United States.
During the evening hours of November 20, 2011, the United
States Coast Guard observed the Panamanian-registered fishing

vessel (F/V) Alan Almirant traveling off the coast of Costa Rica
in the Caribbean Sea. The F/V Alan Almirant was traveling
without any navigation lights and was flying the Nicaraguan
flag. The Coast Guard made radio contact with the
master/captain of the F/V Alan Almirant, who acknowledged
that the vessel was registered in Panama.
Thereafter, the Coast Guard boarded the F/V Alan Almirant
and the persons on board were . . . (E) ALEXANDER
CHAVERRA SERNA. The Coast Guard boarding observed
burlap sacks visible underneath a small layer of fish in the cargo
hold. The boarding team reported that the burlap sacks found
underneath the fish in the cargo hold were full of kilogram size
packages of cocaine wrapped in layers of tape and rubber. The
boarding team also discovered an additional eighteen (18) bales
of cocaine in the forward bait hold. The Coast Guard seized a
total of thirty-seven (37) bales of cocaine from the F/V Alan
Almirant.
Before the Coast Guard interdiction described above, the F/V
Alan Almirant met with another boat on the high seas that was
transporting the bales of cocaine. Thereafter, the persons on
board the F/V Alan Almirant received the bales of cocaine and
concealed them in the locations described above. The bales of
cocaine were to be transported by the persons on board the F/V
Alan Almirant and delivered to other persons. All of the
persons on board the F/V Alan Almirant, including the
Defendant, knew before leaving port that they were going to
participate in a drug smuggling venture and were to be paid for
their involvement in the drug venture.
The Government of Panama provided consent to the exercise
of jurisdiction by the United States with respect to the F/V
Alan Almirant, its non-Panamanian crew and the contraband
seized from the vessel. Therefore, the F/V Alan Almirant and
all persons on board, including the Defendant, were subject to
the jurisdiction of the United States. On December 4, 2011, the
persons on board the F/V Alan Almirant, including the
Defendant, were brought to the United States with the first
point of entry to the United States being at a place in the
Middle District of Florida.

The United States certifies (Doc. 120-1 at 2 in 11-cr-607) that Chaverra-Serna’s
vessel was “approximately 82 nautical miles south east of San Andres Island,
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Columbia, in international waters.” Chaverra-Serna contends that the “actual
coordinates of the (F/V) Alan Almirant was Latitude 11E30' N longitude 89E43' W,
which clearly place[s] the (F/V) in Columbian territorial waters, which waters were
claimed by Nicaragua, and same waters became territorial waters of Nicaragua under
The Hague Judgement of 2012.” (Doc. 5 at 1-2)
Chaverra-Serna was convicted of violating the Maritime Drug Law
Enforcement Act (“MDLEA”), 46 U.S.C. §70503(a), et. seq., which is based on the
constitutional authority granted to Congress “[t]o define and punish Piracies and
Felonies committed on the high Seas, and Offences against the Law of Nations.”
U.S. Const., Art. I, § 8, cl. 10. Hurtado, 700 F.3d at 1248-49, explains the breadth of
jurisdiction under the MDLEA.
The Supreme Court has interpreted that Clause to contain three
distinct grants of power: the power to define and punish piracies, the
power to define and punish felonies committed on the high seas, and
the power to define and punish offenses against the law of nations.
See United States v. Smith, 18 U.S. (5 Wheat.) 153, 158–59, 5 L. Ed.
57 (1820). The first two grants of power are not implicated here:
piracy is, by definition, robbery on the high seas, United States v.
Furlong, 18 U.S. (5 Wheat.) 184, 198, 5 L. Ed. 64 (1820), and the
Felonies Clause is textually limited to conduct on the high seas, see
U.S. Const., Art. I, § 8, cl. 10. The United States relies instead on
the third grant – the Offences Clause – as the source of congressional
power to proscribe the defendants’ drug trafficking in the territorial
waters of Panama. The question whether Congress has the power
under the Offences Clause to proscribe drug trafficking in the
territorial waters of another nation is an issue of first impression in
our Court.

Hurtado rejects the argument that the “Offences Clause” authorizes the
MDLEA to control drug activity that occurs within a foreign country’s territorial
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water. “Because drug trafficking is not a violation of customary international law,
we hold that Congress exceeded its power, under the Offences Clause, when it
proscribed the defendants’ conduct in the territorial waters of Panama.” 700 F.3d at
1258. Hurtado is inapplicable to Chaverra-Serna because his vessel was in
international water and not a nation’s territorial water.
Chaverra-Serna disputes the definition of “international water.” ChaverraSerna argues that under “The Hague Judgement of 2012,” which settled a dispute
between Columbia and Nicaragua over their territorial boundaries, the location of
the F/V Alan Almirant was in the territorial water of Nicaragua. To the contrary,
the district court is bound by decisions from the United States Supreme Court and the
Eleventh Circuit Court of Appeals, which define “international water” as all area
beyond twelve miles from land. See United States v. McPhee, 336 F.3d 1269, 1273
(11th Cir. 2003). The location of the F/V Alan Almirant is undisputed. Under
controlling law, the F/V Alan Almirant’s location was in international water.
Consequently, trial counsel was not ineffective for not challenging the district court’s
subject matter jurisdiction.
Accordingly, the motion to vacate under 28 U.S.C. § 2255 (Doc. 1) is
DENIED. The clerk must enter a judgment against Chaverra-Serna and close this
case.

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DENIAL OF BOTH A
CERTIFICATE OF APPEALABILITY
AND LEAVE TO APPEAL IN FORMA PAUPERIS
Chaverra-Serna is not entitled to a certificate of appealability (“COA”). A
prisoner seeking a writ of habeas corpus has no absolute entitlement to appeal a
district court’s denial of his petition. 28 U.S.C. § 2253(c)(1). Rather, a district court
must first issue a COA. Section 2253(c)(2) permits issuing a COA “only if the
applicant has made a substantial showing of the denial of a constitutional right.” To
merit a COA, Chaverra-Serna must show that reasonable jurists would find debatable
both (1) the merits of the underlying claims and (2) the procedural issues he seeks to
raise. See 28 U.S.C. § 2253(c)(2); Slack v. McDaniel, 529 U.S. 473, 478 (2000); Eagle v.
Linahan, 279 F.3d 926, 935 (11th Cir 2001). Chaverra-Serna is not entitled to appeal
in forma pauperis because he is not entitled to a COA.
Accordingly, a certificate of appealability is DENIED. Leave to appeal in
forma pauperis is DENIED. Chaverra-Serna must obtain permission from the circuit
court to appeal in forma pauperis.
ORDERED in Tampa, Florida, on January 16, 2015.

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