                                                                           FILED
                            NOT FOR PUBLICATION                             OCT 03 2013

                                                                        MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                      U .S. C O U R T OF APPE ALS




                             FOR THE NINTH CIRCUIT



UNITED STATES OF AMERICA,                        No. 12-35468

               Plaintiff - Appellee,             D.C. Nos.    2:11-cv-00332-WFN
                                                              2:08-cr-00137-WFN
  v.

DANIEL ALLEN FLAHERTY, a.k.a.                    MEMORANDUM *
Daniel Allen Flagherty,

               Defendant - Appellant.



                   Appeal from the United States District Court
                      for the Eastern District of Washington
                  Wm. Fremming Nielsen, District Judge, Presiding

                           Submitted September 24, 2013 **

Before:        RAWLINSON, N.R. SMITH, and CHRISTEN, Circuit Judges.

       Daniel Allen Flaherty appeals pro se from the district court’s order denying

his 28 U.S.C. § 2255 motion as untimely. We have jurisdiction under 28 U.S.C.

§ 2253, and we affirm.


          *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
          **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
      Flaherty’s section 2255 motion challenged the constitutionality of 21 U.S.C.

§ 846 of the Controlled Substances Act, the statute underlying his conviction for

conspiracy to distribute methamphetamine. He argues that the district court erred

by denying his motion as untimely because he filed the motion within one year of

the Supreme Court’s decision in Bond v. United States, 131 S. Ct. 2355, 2366-67

(2011), which held that a defendant has standing to raise a Tenth Amendment

challenge to the statute under which he was convicted. We need not determine

whether Bond provides an alternate start date for AEDPA’s statute of limitations.

Even if they are timely, Flaherty’s claims that 21 U.S.C. § 846 interferes with

powers reserved to the states fail on the merits.1 This court has concluded that the

Controlled Substances Act does not violate the Tenth Amendment, see Raich v.

Gonzales, 500 F.3d 850, 869 (9th Cir. 2007), and has rejected challenges to the

constitutionality of Title 21, see United States v. Kim, 94 F.3d 1247, 1250 & n.3

(9th Cir. 1996).

      AFFIRMED.




      1
         To the extent the certificate of appealability does not encompass the merits
of these claims, we construe Flaherty’s briefing as a request to broaden the
certificate of appealability and grant the request. We decline to further expand the
certificate of appealability to include his additional arguments. See 9th Cir. R. 22-
1(e); Hiivala v. Wood, 195 F.3d 1098, 1104-05 (9th Cir. 1999) (per curiam).

                                          2                                    12-35468
