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Izac v. Warden

United States District Court, C.D. California

October 29, 2014

CHARLES IZAC, Petitioner,
v.
WARDEN, Respondent.

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.

BACKGROUND

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)[1] (Respondent's Ex. A, ECF Docket No. 14, Ex. A, p. 26).[2] 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"[3] and three burglaries (Petition, p. 10).[4] 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.

PETITIONER'S CONTENTIONS

Petitioner contends:

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;[5] 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:[6]

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 2255 Motion was still pending in the District Court and the second section 2255 Motion was premature (see "Order" filed June 13, 2008 in In re Izac, No. 08-185 (4th Cir.)).

On August 7, 2008, the Magistrate Judge in the Northern District of West Virginia issued a Report and Recommendation recommending denial of Petitioner's May 21, 2008 section 2255 Motion on the merits. See Izac v. United States, 2008 WL 4238946 (N.D.W.Va. Aug 7, 2008). On September 11, 2008, the District Judge issued an order adopting the Report and Recommendation. See Izac v. United States, 2008 WL 4238949 (N.D.W.Va. Sept. 11, 2008). The Fourth Circuit denied a certificate of appealability on March 23, 2009. See United States v. Izac, 319 Fed.App'x 210 (4th Cir. 2009).

On September 15, 2010, Petitioner sought to challenge his West Virginia sentence by filing a habeas corpus petition in the United States District Court for the District of New Jersey (see "Petition, etc." filed September 15, 2010, in Izac v. Zickefoose, No. 1:10-cv-4744-RMB (D.N.J.)). Petitioner again alleged that the presentence report contained inaccurate information concerning Petitioner's prior convictions used to enhance his ACCA sentence. On September 23, 2010, the New Jersey District Court issued an order ruling on four of Petitioner's actions then pending in that court, including Petitioner's habeas petition in Izac v. Zickefoose. The New Jersey District Court denied the petition on the ground that the petition was actually a second or successive section 2255 motion. See Isac v. Norwood, 2010 WL 3810216 (D.N.J. Sept. 23, 2010).

On June 27, 2011, Petitioner filed another section 2255 motion in the sentencing court (Respondent's Lodgment D). Petitioner asserted, among other things, that he was "actually innocent" of his ACCA sentence because the sentence allegedly was based on prior convictions that did not qualify as ACCA predicate offenses. Petitioner also alleged a claim of ineffective assistance of counsel for assertedly failing to file a motion to suppress assertedly illegally obtained evidence and failing to challenge Petitioner's sentence on the ground that Petitioner's prior convictions allegedly did not qualify as ACCA predicate offenses. A Magistrate Judge in the sentencing court issued a Report and Recommendation on July 19, 2011, recommending denial of the motion as second or successive. See Izac v. United States, 2011 WL 5510732 (N.D.W.Va. July 19, 2011). The District Court issued an order adopting the Report and Recommendation on November 10, 2011. See Izac v. United States, 2011 WL 5510729 (N.D.W.Va. Nov. 10, 2011).

On January 12, 2012, Petitioner filed in the sentencing court a "Motion for Review of Sentence Under 18 U.S.C. § 3741[A], " again asserting his claims of unlawful search, ineffective assistance of counsel and unlawful sentence due to the alleged absence of qualifying ACCA predicate offenses (Respondent's Lodgment E). On September 5, 2012, the court denied the motion on procedural grounds and also rejected on the merits Petitioner's claim that his prior burglary convictions did not constitute qualifying ACCA predicate offenses. See United States v. Izac, 2012 WL 8466142, at *2 (N.D.W.Va. Sept. 5, 2012).

On March 1, 2012, Petitioner filed a habeas corpus petition in the United States District Court for the Southern District of West Virginia (see "Motion Under 28 U.S.C. §2241, " filed March 1, 2012, in Izac v. United States, No. CV 5:12-613 (S.D.W.Va.)). Petitioner again challenged the lawfulness of his ACCA sentence, contending he was "actually innocent" of the sentence because his prior burglaries assertedly were not violent. On May 21, 2012, the Magistrate Judge in the Southern District of West Virginia issued "Proposed Findings and Recommendation, " recommending dismissal of the petition without prejudice. See Izac v. United States, 2012 WL 2193198 (S.D.W.Va. May 21, 2012). The District Court adopted the "Proposed Findings and Recommendation" on June 14, 2012. See Izac v. United States, 2012 WL 2192290 (S.D.W.Va. June 14, 2012).

In the meantime, on May 8, 2012, Petitioner filed in the Fourth Circuit a "Motion Under 28 U.S.C. § 2244 For Order Authorizing District Court to Consider Second or Successive Application for Relief Under 28 U.S.C. §§ 2254 or 2255" (see Izac v. United States, No. 12-195 (4th Cir.)). Petitioner thereby sought leave to file another section 2255 petition asserting claims of unlawful search, unlawful sentence due to alleged absence of qualifying ACCA predicate offenses (assertedly non-violent and non-residential burglaries), and ineffective assistance of counsel in failing to file a motion to suppress and failing to challenge Petitioner's sentence. The Fourth Circuit denied the motion on May 31, 2012 (see "Order" filed May 31, 2012 in In re Izac, No. 12-195 (4th Cir.)).

On August 16, 2012, Petitioner filed another section 2255 motion in the sentencing court (see Respondent's Lodgment F). Petitioner alleged claims of unlawful search, ineffective assistance of counsel in failing to file a motion to suppress and purported "actual innocence" of his ACCA sentence because the sentence assertedly was unsupported by qualifying ACCA predicate offenses. On December 18, 2012, the sentencing court denied the motion as untimely and successive (see Respondent's Lodgment G). The Fourth Circuit denied a certificate of appealability on October 25, 2013. See United States v. Izac, 544 Fed.App'x 239 (4th Cir. 2013).

On September 27, 2012, Petitioner filed in the sentencing court another "Motion for Review of Sentence Under 18 U.S.C. § 3742[A]" (see United States v. Izac, No. 3:02cr58 (N.D.W.Va.). The court construed the motion as an appeal and directed the clerk to transmit the motion to the Court of Appeals (see Respondent's Lodgment A, ECF Docket No. 14, Ex. A, p. 32, "Paperless Order" filed October 4, 2012, in United States v. Izac, No. 3:02cr58 (N.D.W.Va.)). The Fourth Circuit affirmed on February 25, 2013. See United States v. Izac, 511 Fed.App'x 238 (4th Cir. 2013).

On March 1, 2013, Petitioner filed in the Fourth Circuit another "Motion Under 28 U.S.C. § 2244 For Order Authorizing District Court to Consider Second or Successive Application for Relief Under 28 U.S.C. §§ 2254 or 2255" (see In re Charles Izac, No. 13-147 (4th Cir.)). Petitioner therein asserted claims of alleged unlawful search, alleged ineffective assistance of counsel in failing to file a motion to suppress, and alleged "actual innocence" of Petitioner's sentence because Petitioner's prior convictions supposedly did not qualify as ACCA predicate offenses. On March 13, 2013, the Fourth Circuit denied the motion (see "Order" filed March 13, 2013, in In re Charles Izac, No. 13-147 (4th Cir.)).

On April 24, 2014, Petitioner filed a "Motion" in the sentencing court, seeking deletion of criminal history points on the ground that Petitioner's prior offenses supposedly did not qualify as ACCA predicate offenses (see Respondent's Lodgment H). On April 29, 2014, the sentencing court issued an order dismissing the motion as a second or successive section 2255 motion. See Izac v. United States, 2014 WL 1689732 (N.D.W.Va. Apr. 29, 2014).

In the meantime, on April 23, 2014, Petitioner filed a petition for an extraordinary writ in the Fourth Circuit (Respondent's Ex. I).[7] Petitioner again asserted claims of actual innocence of the ACCA sentence based on allegedly nonqualifying prior convictions and ineffective assistance of counsel in failing to make a motion to suppress and in failing to challenge Petitioner's sentence. Petitioner also asserted that his sentence violated Alleyne. On August 26, 2014, the Fourth Circuit construed the petition as a section 2241 habeas corpus petition and denied the petition, stating that the court saw no reason to depart from the general rule that the court does not entertain original habeas petitions and also stating that the interests of justice would not be served by a transfer of the petition to the district court. See In re Izac, 2014 WL 4198353 (4th Cir. Aug. 14, 2014).

DISCUSSION

A federal prisoner who contends that his or her conviction or sentence is subject to collateral attack "may move the court which imposed the sentence to vacate, set aside or correct the sentence." 28 U.S.C. § 2255. "Generally, motions to contest the legality of a sentence must be filed under § 2255, while petitions that challenge the manner, location, or conditions of a sentence's execution must be brought pursuant to § 2241 in the custodial court." Hernandez v. Campbell, 204 F.3d 861, 864 (9th Cir. 2000) (citations and footnote omitted). A prisoner generally may not substitute a habeas petition under 28 U.S.C. section 2241 for a section 2255 motion.

An application for a writ of habeas corpus in behalf of a prisoner who is authorized to apply for relief by motion pursuant to this section, shall not be entertained if 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, unless it also appears that the remedy by motion is inadequate or ineffective to test the legality of his detention.

28 U.S.C. § 2255(e); see Stephens v. Herrera, 464 F.3d 895, 897-99 (9th Cir. 2006), cert. denied, 549 U.S. 1313 (2007); Hernandez v. Campbell, 204 F.3d at 864.

Here, Petitioner repeatedly and unsuccessfully has applied for relief under section 2255 in the sentencing court as well as in other district courts. Petitioner's first such motion was denied on the merits by the sentencing court. The Fourth Circuit subsequently has rejected Petitioner's applications for leave to file a second or successive section 2255 motion.

"Under the savings clause of § 2255, however, a federal prisoner may file a habeas corpus petition pursuant to § 2241 to contest the legality of a sentence where his remedy under section 2255 is inadequate or ineffective to test the legality of his detention.'" Hernandez v. Campbell, 204 F.3d at 864-65; see also Stephens v. Herrera, 464 F.3d at 897. This "savings clause" exception to section 2255 exclusivity is a "narrow" exception. Ivy v. Pontesso, 328 F.3d 1057, 1059-60 (9th Cir.), cert. denied, 540 U.S. 1051 (2003); United States v. Pirro, 104 F.3d 297, 299 (9th Cir. 1997).

Mere lack of success in the sentencing court does not make the section 2255 remedy "inadequate or ineffective." Boyden v. United States, 463 F.2d 229, 230 (9th Cir. 1972), cert. denied, 410 U.S. 912 (1973); see Tripati v. Henman, 843 F.2d 1160, 1162-63 (9th Cir.), cert. denied, 488 U.S. 982 (1988). If the rule were otherwise, every disappointed prisoner/movant incarcerated in a district different from the sentencing district could pursue a repetitive section 2241 petition in the district of incarceration.

Similarly, neither the enforcement of the statute of limitations nor the enforcement of restrictions on successive section 2255 motions renders the section 2255 remedy "inadequate or ineffective" within the meaning of the statute. See Moore v. Reno, 185 F.3d 1054, 1055 (9th Cir. 1999), cert. denied, 528 U.S. 1178 (2000) (dismissal of a prior section 2255 motion as successive does not render the section 2255 remedy "inadequate or ineffective"); Gilbert v. United States, 640 F.3d 1293, 1308 (11th Cir. 2011) (en banc), cert. denied, 132 S.Ct. 1001 (2012) (dismissal of earlier section 2255 motion as successive does not render the section 2255 remedy "inadequate or ineffective"); Hill v. Morrison, 349 F.3d 1089, 1092 (8th Cir. 2003) ("a § 2255 motion is not inadequate or ineffective' merely because: (1) § 2255 relief has already been denied, (2) the petitioner has been denied permission to file a second or successive § 2255 motion, (3) a second or successive § 2255 motion has been dismissed, or (4) the petitioner has allowed the one year statute of limitations and/or grace period to expire.") (citations, internal brackets and quotations omitted); Cradle v. U.S. ex rel. Miner, 290 F.3d 536, 539 (3d Cir. 2002) ("Section 2255 is not inadequate or ineffective merely because the sentencing court does not grant relief, the one-year statute of limitations has expired, or the petitioner is unable to meet the stringent gatekeeping requirements of the amended § 2255") (citations omitted); Robinson v. United States, 2011 WL 4852499, at *2 (C.D. Cal. Oct. 12, 2011) (savings clause does not apply merely because the statute of limitations "now prevents the courts from considering a section 2255 motion"); cf. Ivy v. Pontesso, 328 F.3d at 1060 ("[I]t is not enough that the petitioner is presently barred from raising his claim... by motion under § 2255. He must never have had the opportunity to raise it by motion.").

Petitioner contends that the savings clause applies because Petitioner purportedly is "actually innocent" of his ACCA sentence (Petition, pp. 1-2).[8] Petitioner contends his sentence was a "legal nullity" because his prior convictions allegedly did not qualify as ACCA predicate offenses and because the court allegedly imposed sentence based on facts assertedly found by the judge rather than by the jury (Petition, pp. 2-4).

A federal prisoner may file a section 2241 petition under the savings clause if the prisoner "(1) makes a claim of actual innocence, and (2) has not had an unobstructed procedural shot at presenting that claim." Marrero v. Ives, 682 F.3d 1190, 1192 (9th Cir. 2012), cert. denied, 133 S.Ct. 1264 (2013) (citation and internal quotations omitted). "[T]o establish actual innocence, petitioner must demonstrate that, in light of all the evidence, it is more likely than not that no reasonable juror would have convicted him." Bousley v. United States, 523 U.S. 614, 623 (1998) (citation and quotations omitted). "Actual innocence means factual innocence, not mere legal insufficiency.'" Marrero v. Ives, 682 F.3d at 1193 (quoting Bousley v. United States, 523 U.S. at 623) (internal brackets omitted).

Petitioner's arguments that Petitioner's prior convictions assertedly did not qualify as ACCA predicate offenses and that his sentence allegedly violated Alleyne present "purely legal arguments" that do not suffice to show Petitioner's actual innocence. See Marrero v. Ives, 682 F.3d at 1193-95 ("purely legal" claim that petitioner was wrongly classified as a career offender did not entail a claim of actual innocence; noting cases in other circuits holding that a petitioner generally cannot assert a cognizable claim of actual innocence of a noncapital sentencing enhancement). Furthermore, Alleyne does not apply retroactively on collateral review. See Hughes v. United States, F.3d, 2014 WL 5368857 (9th Cir. Oct. 23, 2014); accord In re Mazzio, 756 F.3d 487, 489-90 (6th Cir. 2014); United States v. Reyes, 755 F.3d 210, 212 (3d Cir. 2014), pet. for cert. filed (Oct. 16, 2014) (No. 14-6816, 14A272); In re Kemper, 735 F.3d 211, 212 (5th Cir. 2013); In re Payne, 733 F.3d 1027, 1029-30 (10th Cir. 2013). Petitioner's other claims, which concern alleged ineffective assistance of counsel, similarly fail to show "actual innocence." See, e.g., Cantillanos-Medina v. United States, 2013 WL 2355508, at *2 (E.D. Cal. May 29, 2013) (claims of ineffective assistance of counsel do not show actual innocence for purposes of the savings clause); Vasquez v. Norwood, 2009 WL 1704996, at *2 (C.D. Cal. June 15, 2009) (same).

Accordingly, the savings clause does not apply in the present case.[9] Therefore, the Petition is a section 2255 motion over which this Court lacks jurisdiction.

A court lacking jurisdiction of a civil action may transfer the action to a court in which the action could have been brought, provided the transfer is "in the interest of justice." 28 U.S.C. § 1631; see Cruz-Aguilera v. I.N.S., 245 F.3d 1070, 1074 (9th Cir. 2001). "Normally transfer will be in the interest of justice because normally dismissal of an action that could be brought elsewhere is time consuming and justice-defeating." Id. at 1074 (citations and quotations omitted).

In determining whether to transfer an action, the Court must consider whether the action would have been timely had the action been filed in the proper forum. See Taylor v. Soc. Sec. Admin., 842 F.2d 232, 233 (9th Cir. 1988). It may well be that the applicable one-year statute of limitations bars the present action, given the fact that Petitioner's direct appeal concluded in 2007. See 28 U.S.C. § 2255(f). In any event, the Court should not transfer this action because, for a separate reason, a transfer would be an idle act. As in Crosby v. United States, 2011 WL 6986789 (C.D. Cal. Dec. 15, 2011), adopted, 2012 WL 84768 (C.D. Cal. Jan. 11, 2012), and Scott v. Ives, 2010 WL 295786 (E.D. Cal. Jan. 13, 2010), a transfer to the district of conviction would not benefit Petitioner because the district of conviction would be unable to entertain the matter. The United States District Court for the Northern District of West Virginia could not entertain this "second or successive" section 2255 motion absent Fourth Circuit authorization. See 28 U.S.C. § 2244, 2255(h).

In his Response, Petitioner states that if his claim of actual innocence does not succeed, Petitioner wishes to invoke the All Writs Act, 28 U.S.C. section 1651(a) (Response, p. 2). However, a motion for issuance of a writ pursuant to the All Writs Act must be brought in the sentencing court, here the United States District Court for the Northern District of West Virginia. See United States v. Monreal, 301 F.3d 1127, 1131 (9th Cir. 2002), cert. denied, 537 U.S. 1178 (2003) (writ of error corum nobis may only be brought in the sentencing court); Madigan v. Wells, 224 F.2d 577, 578 n.2 (9th Cir. 1955), cert. denied, 351 U.S. 911 (1956) (same); Valencia-Mazariegos v. United States, 2014 WL 1767706, at *2 (W.D. Tex. May 1, 2014) (petition for writ of corum nobis or audita querela must be brought in sentencing court); Harris v. United States, 2009 WL 2957811, at *1 (W.D. Wash. Sept. 14, 2009) (writ of error audita querela challenging federal conviction must be filed in sentencing court). Like a transfer of Petitioner's de facto section 2255 motion, a transfer of Petitioner's putative All Writs Act motion to the Northern District of West Virginia would be an idle act. A prisoner may not avoid the statutory limitations on second or successive section 2255 motions by seeking relief under the All Writs Act. See, e.g., Matus-Leyva v. United States, 287 F.3d 758, 761 (9th Cir.), cert. denied, 537 U.S. 1022 (2002); United States v. Valdez-Pacheco, 237 F.3d 1077, 1079-80 (9th Cir. 2001); see also In re Davenport, 147 F.3d 605, 608 (7th Cir. 1998) ("if Congress has forbidden federal prisoners to proceed under 2241 even when 2255 is closed to them - then it would be senseless to suppose that Congress permitted them to pass through the closed door simply by changing the number 2241 to 1651 on their motions").

RECOMMENDATION

For all of the foregoing reasons, IT IS RECOMMENDED that the Court issue an Order: (1) accepting and adopting this Report and Recommendation; and (2) directing that Judgment be entered denying and dismissing the Petition without prejudice.


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