United States District Court, C.D. California
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
CHARLES F. EICK, Magistrate Judge.
This Report and Recommendation is submitted to the Honorable Percy Anderson, United States District Judge, pursuant to 28 U.S.C. section 636 and General Order 05-07 of the United States District Court for the Central District of California.
On December 20, 2005, a jury in the United States District Court for the Northern District of West Virginia found Petitioner guilty of being a felon in possession of a firearm in violation of 18 U.S.C. section 922(g)(1) (Respondent's Ex. A, ECF Docket No. 14, Ex. A, p. 26). On May 5, 2006, the United States District Court for the Northern District of West Virginia sentenced Petitioner to a prison term of 180 months to be followed by five years of supervised release (id., p. 27; see "Judgment in a Criminal Case" filed May 5, 2006 in United States v. Izac, No. 3:02cr58 (N.D.W.Va.)). The court imposed the sentence pursuant to the Armed Career Criminal Act, 18 U.S.C. section 924(e) ("ACCA"), based on Petitioner's prior convictions for an "assault" and three burglaries (Petition, p. 10). The 180 month prison sentence was the statutory mandatory minimum for a defendant with three qualifying ACCA predicate offenses. See 18 U.S.C. § 924(e)(1). The United States Court of Appeals for the Fourth Circuit affirmed the judgment on July 11, 2007. See People v. Izac, 239 Fed.App'x 1 (4th Cir. 2007).
On July 15, 2014, Petitioner filed in this Court an uncaptioned document titled "motion seeking relief from a federal judgment, " purportedly seeking relief pursuant to 28 U.S.C. section 2241 ("the Petition"). Petitioner seeks to challenge his Northern District of West Virginia conviction and sentence for being a felon in possession of a firearm. On October 6, 2014, Respondent filed "Government's Opposition to Petition for Writ of Habeas Corpus, etc., " contending that the Petition constitutes a second or successive motion to vacate under 28 U.S.C. section 2255. Petitioner filed a "Response to Government's Opposition" on October 20, 2014.
1. Petitioner is "actually innocent" of his ACCA sentence because his prior convictions assertedly did not qualify as ACCA predicate offenses; the burglaries allegedly were non-violent residential burglaries and the burglaries and the "assault" allegedly did not qualify as "crimes of violence" under Sentencing Guidelines;
2. Petitioner's sentence allegedly violated Alleyne v. United States, 133 S.Ct. 2151 (2013) ("Alleyne"), because the court imposed sentence based on factual findings assertedly made by the judge, not the jury; and
3. Petitioner's trial counsel allegedly rendered ineffective assistance in various ways, including assertedly: (1) failing to represent Petitioner adequately in pretrial proceedings; (2) failing to make a motion to suppress evidence allegedly obtained by means of an unlawful search; (3) failing to object to a "tainted juror"; (4) failing to object to the court's refusal to allow Petitioner to present three witnesses; (5) making outbursts in front of the jury; (6) failing to challenge the use of Petitioner's prior convictions to impose an ACCA sentence; and (7) generally disregarding Petitioner's case due to an asserted bipolar disorder.
PETITIONER'S PRIOR ACTIONS
In the years following the 2006 imposition of his sentence, Petitioner has filed numerous post-conviction challenges to his conviction and/or sentence:
On May 21, 2008, Petitioner filed in the sentencing court a "Motion Under 28 USC § 2255 to Vacate, etc." (Respondent's Ex. B). Therein, Petitioner asserted numerous claims, including a claim that the presentence investigation report erroneously stated that Petitioner had qualifying ACCA predicate convictions and a claim that Petitioner's counsel allegedly rendered ineffective assistance.
On June 2, 2008, Petitioner filed in the United States Court of Appeals for the Fourth Circuit an "Application for Leave to File a Second or Successive Motion to Vacate, Set Aside or Correct Sentence 28 U.S.C. § 2255, etc." See In re Izac, No. 08-185 (4th Cir.). On June 9, 2008, while this Application was still pending in the Fourth Circuit, Petitioner filed in the sentencing court a second "Motion Under 28 USC § 2255 to Vacate, etc., " alleging the same grounds for relief as Petitioner's first section 2255 motion (Respondent's Ex. C). On June 13, 2008, the Fourth Circuit denied Petitioner's June 2, 2008 Application on the ground that Petitioner's first section ...