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United States of America v. Mykhailo Yurchenko

January 14, 2013

UNITED STATES OF AMERICA, PLAINTIFF/ APPELLEE,
v.
MYKHAILO YURCHENKO, DEFENDANT/ APPELLANT.



The opinion of the court was delivered by: Margaret M. Morrow United States District Judge

O

ORDER SUMMARILY DISMISSING ACTION AS DISGUISED§ 2255 MOTION

The Court will dismiss this action summarily because the face of the petition, combined with judicially-noticeable information, indicates that it is an abusive, disguised motion under 28 U.S.C. § 2255.

I. BACKGROUND

In 2004, a federal jury in the Southern District of California convicted Mykhailo Yurchenko and several confederates of trafficking cocaine seized on a ship from Belize bound for -- but in international waters and not yet in -- the United States, in violation of the Maritime Drug Law Enforcement Act (MDLEA), 46 U.S.C. app. § 1903. (Although Yurchenko styles himself as the "Defendant/ Appellant," the Court refers to him as "Petitioner." He expressly seeks to avoid proceeding in the Southern District where he once was a "Defendant." See Mem. at 3.) District Judge Jeffrey T. Miller sentenced him to 188 months in prison. See docket in United States v. Savchenko, No. 01-CR-1652 JM (Verdict and Amended Judgment are docket entries #789 and #1019 respectively).

Petitioner appealed, arguing solely that authorities improperly compensated a prosecution witness. In March of 2007, the Ninth Circuit affirmed. United States v. Ihnatenko, 482 F.3d 1097 (9th Cir. 2007). (Petitioner states that the appellate court remanded as to his sentence, but the Ninth Circuit's docket does not reflect any remand, nor does the panel's opinion mention any disposition other than affirming. See id.) The United States Supreme Court denied certiorari in October of 2007. 552 U.S. 904, 128 S.Ct. 231, 169 L.Ed.2d (2007).

Petitioner challenges his conviction, purporting to invoke the ancient writ of audita querela. He argues that the search of his vessel occurred outside of United States jurisdiction. (He also cites cases involving the Federal Sentencing Guidelines, see Mem. at 1, but he does not appear to argue for resentencing. See id. at 5-6.) Petitioner did not assert this argument on appeal. See Ihnatenko, 482 F.3d at 1099. In support, Petitioner points to a recent decision by the Eleventh Circuit, United States v. Bellaizac-Hurtado, 700 F.3d 1245 (11th Cir. Nov. 6, 2012). The key fact in that case was that the MDLEA defendants were searched, and their cocaine was seized, while their vessel was still in the territorial waters of another country, namely Panama. The Southern District of Florida rejected their argument that, even if the text of the MDLEA permits such seizures in other countries' territories, the MDLEA exceeded Congress's proper authority as a matter of international law in such cases. 799 F.Supp.2d 1344 (S.D. Fla. 2011). The Eleventh Circuit disagreed and vacated the convictions. See 700 F.3d at 1258 ("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. And the United States has not offered us any alternative ground upon which the Act could be sustained as constitutional").

II. DISCUSSION

The Clerk has categorized this action for filing purposes as one seeking habeas relief under 28 U.S.C. § 2241. Petitioner calls it a petition for a writ of audita querela but admits that what he "utiliz[es] the same authority" as a § 2255 motion. Whatever its label, this action is in fact a reupholstered, tardy § 2255 motion and lacks merit in any event.

A. If Construed As A § 2241 Petition, The Action Is Barred

28 U.S.C. § 2255 generally provides the sole procedural mechanism by which a federal prisoner may test the legality of his detention. Lorentsen v. Hood, 223 F.3d 950, 953 (9th Cir. 2000). That section bars courts from entertaining most habeas petitions where "it appears that the applicant has failed to apply for relief, by motion, to the court which sentenced him, or that such court has denied him relief[.]" In light of this rule, the statute on its face appears to bar the present action. Section 2255 itself permits resort to a 28 U.S.C. § 2241 petition when a § 2255 motion is "inadequate or ineffective to test the legality of [the] detention." 28 U.S.C. § 2255. This clause is sometimes referred to as the "escape hatch" to § 2255's exclusivity provision. Lorentsen, 223 F.3d at 953.

Only rarely is § 2255's escape hatch available. A § 2255 motion cannot and should not be viewed as "inadequate" merely because the sentencing court has denied relief on the merits. Id. Any contrary ruling would nullify the statute's gatekeeping provisions, and Congress then would have accomplished little in its attempts to limit federal collateral review in passing laws such as the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). See Triestman v. United States, 124 F.3d 361, 374-76 (2nd Cir. 1997) (discussing Congressional intent to narrow collateral attacks).

"Along with many of our sister circuits," the Ninth Circuit has explained, we have held that a § 2241 petition is available under the "escape hatch" of § 2255 when a petitioner (1) makes a claim of actual innocence, and (2) has not ...


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