Opinion
No. CR 91-0324 WHA, C 96-2050 WHA.
January 31, 2006
ORDER GRANTING CERTIFICATE OF APPEALABILITY
INTRODUCTION
In this drug-smuggling case, applicant Olaf Peter Juda has requested a certificate of appealability. He wants to challenge this Court's denial of his most recent motion. He styled that motion as one to dismiss his indictment pursuant to Federal Rule of Civil Procedure 60(b)(4). This Court found instead that it was a successive motion under 28 U.S.C. 2255, which governs efforts to vacate, set aside or amend sentences in federal criminal cases. The Court of Appeals had not given him the requisite permission to file a successive Section 2255 motion. For that reason alone, this Court denied the motion. It is possible that a reasonable jurist could have held that, in this particular case, his motion was indeed a Rule 60(b)(4) motion. The request for a certificate therefore is GRANTED.
STATEMENT
Applicant pleaded guilty in 1993 to violating the Maritime Drug Law Enforcement Act of 1986 ( 46 App. U.S.C. 1903(a), (j)) and committing arson on the high seas ( 18 U.S.C. 81). He was captain of a ship transporting hashish and helped to torch the vessel when federal agents tried to come aboard.The district court denied two of Mr. Juda's Section 2255 in 1996. It denied another in 1997. A fourth was rejected in 2001 ( see Docket for CR 91-324). On January 21, 2005, the Ninth Circuit turned down Mr. Juda's most recent application to file a successive Section 2255 motion. Order, Juda v. United States, No. 05-70045 (9th Cir. Jan. 21, 2005).
Mr. Juda's most recent motion, filed August 17, 2005, claimed several things. First, he contended that the United States did not have Article III standing to indict him under the Maritime Drug Law Enforcement Act because it did not have a sufficient interest in whatever injury was caused by Mr. Juda. The district court, he argued, therefore did not have jurisdiction over the case. Second, the motion alleged that the statute was facially unconstitutional because it did not require, as an element of the criminal violation, nexus between the United States, on the one hand, and the defendant or his or her acts, on the other side. Without such an element, applicant argued, the United States had no standing under the Act. Third, applicant argued that no facts were demonstrated that would confer statutory jurisdiction over the arson-on-the-high-seas allegation. Fourth, he alleged that the United States cannot claim to have suffered injury in fact sufficient to give it standing under Article III to bring the arson charge. Fifth, he claimed that the United States cannot achieve third-party prudential standing to bring the prosecution.
The Court denied that motion, construing it as Mr. Juda's fifth Section 2255 motion. On January 23, 2006, he requested a certificate of appealability.
ANALYSIS
A district court judge may grant a certificate of appealability "only if the applicant has made a substantial showing of the denial of a constitutional right." 28 U.S.C. 2253(c)(2). The certificate is granted if the petitioner demonstrates "that the issues are debatable among jurists of reason; that a court could resolve the issues [in a different manner]; or that the questions are adequate to deserve encouragement to proceed further." Any doubt is resolved in the petitioner's favor. Lambright v. Stewart, 220 F.3d 1022, 1025 (9th Cir. 2000) (citations omitted).
"In most cases when the factual predicate for a Rule 60(b) motion also states a claim for a successive petition under 28 U.S.C. § 2244(b) . . . the Rule 60(b) motion should be treated as a successive habeas petition. . . . [But] a bright line rule equating all Rule 60(b) motions with successive habeas petitions would be improper." Thompson v. Calderon, 151 F.3d 918, 921 n. 3 (9th Cir. 1998). Although Thompson concerned a successive petition of a state judgment under Section 2244, rather than a federal sentence under Section 2255, the reasoning applies to both contexts because the two statutes are functionally identical. Moore v. Reno, 185 F.3d 1054, 1055 (9th Cir. 1999) (holding that Section 2244(b) requirements must be met for successive Section 2255 motions). Given Thompson and the differing facts in the instant case, a reasonable jurist might be able to disagree with the denial of Mr. Juda's most recent motion.
CONCLUSION
For the reasons stated above, the certificate of appealability is GRANTED.
IT IS SO ORDERED.