Opinion
NO. CR. 89-106 LKK.
January 31, 2011
ORDER
On July 26, 2010, Aichele filed a petition for writ of error audita querela seeking retroactive application of several Supreme Court decisions. On August 12, 2010, the court denied the petition citing several Ninth Circuit decisions for the proposition that the Supreme Court cases are not retroactive. Aichele subsequently appealed the court's denial of the petition to the Ninth Circuit. On January 27, 2011, the Ninth Circuit found that the appeal "appears to arise under 28 U.S.C. § 2255," and, thus, "remanded the case to the district court for the limited purpose of granting or denying a certificate of appealability."
The court has reviewed the record and declines to issue a certificate of appealability. The merits of Aichele's claims are not debatable among jurists of reason because the Ninth Circuit has determined that the Supreme Court decisions do not apply retroactively.
IT IS SO ORDERED.
DATED: January 28, 2011.