UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA
July 5, 2011
UNITED STATES OF AMERICA,
BERNARDO HERZER, DEFENDANT/PETITIONER.
The opinion of the court was delivered by: Honorable Larry Alanburns United States District Judge
ORDER DENYING CERTIFICATE OF APPEALABILITY
On June 21, 2011, the Court denied Petitioner Herzer's motion for writ of coram nobis. He then filed a notice of appeal. The document opening the docket on appeal, the Ninth Circuit Clerk of Court's letter, which was also filed in this Court's docket as item number 200, says "A briefing schedule will not be set until the district court and, if necessary, this court determine whether a certificate of appealability should issue."
Where, as here, a petitioner seeking a writ of coram nobis has already served his sentence and is no longer in custody, the statutory requirement that the petitioner first obtain a certificate of appealability (COA) is inapplicable. United States v. Kwan, 407 F.3d 1005, 1009--11 (9th Cir. 2005) (abrogated on other grounds by Padilla v. Kentucky, 130 S.Ct. 1473 (2010)) ("We find that the COA requirement does not apply to coram nobis proceedings, [and] hold that we have jurisdiction to review the district court's denial of Kwan's coram nobis petition without a COA . . . .") While Padilla rejected Kwan's substantive holding, it did not address the COA requirement, and at least two other circuits continue to rely on Kwan for this principle after Padilla. See Bedolla-Izazaga v. United States, 413 Fed.Appx. 20, 21 n.1 (11th Cir. 2011) ("A certificate of appealability is not required to appeal the dismissal of a petition for a writ of audita querela."); United States v. Few, 372 Fed.Appx. 564, 564 (5th Cir. 2010) ("There is no requirement to obtain a COA in order to appeal the denial of a petition for a writ of coram nobis.")
Because no COA is required for Herzer to appeal, it is DENIED AS MOOT.
IT IS SO ORDERED.
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