Charles Izac v. Warden

Filing 18

ORDER ACCEPTING FINDINGS, CONCLUSIONS AND RECOMMENDATIONS OF U.S. MAGISTRATE JUDGE by Judge Percy Anderson. The Court accepts and adopts the Magistrate Judge's Report and Recommendation. It is Ordered that: (1) the Report and Recommendation of the Magistrate Judge is accepted and adopted; and (2) Judgment shall be entered denying and dismissing the Petition without prejudice. (Attachments: # 1 R&R) (sp)

Download PDF
1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 12 13 14 15 CHARLES IZAC, ) NO. CV 14-5487-PA(E) ) Petitioner, ) ) v. ) REPORT AND RECOMMENDATION OF ) WARDEN, ) UNITED STATES MAGISTRATE JUDGE ) Respondent. ) ______________________________) 16 17 18 This Report and Recommendation is submitted to the Honorable 19 Percy Anderson, United States District Judge, pursuant to 28 U.S.C. 20 section 636 and General Order 05-07 of the United States District 21 Court for the Central District of California. 22 BACKGROUND 23 24 25 On December 20, 2005, a jury in the United States District Court 26 for the Northern District of West Virginia found Petitioner guilty of 27 being a felon in possession of a firearm in violation of 18 U.S.C. 28 /// 1 section 922(g)(1)1 (Respondent’s Ex. A, ECF Docket No. 14, Ex. A, p. 2 26).2 3 Northern District of West Virginia sentenced Petitioner to a prison 4 term of 180 months to be followed by five years of supervised release 5 (id., p. 27; see “Judgment in a Criminal Case” filed May 5, 2006 in 6 United States v. Izac, No. 3:02cr58 (N.D.W.Va.)). 7 the sentence pursuant to the Armed Career Criminal Act, 18 U.S.C. 8 section 924(e) (“ACCA”), based on Petitioner’s prior convictions for 9 an “assault”3 and three burglaries (Petition, p. 10).4 On May 5, 2006, the United States District Court for the The court imposed The 180 month 10 prison sentence was the statutory mandatory minimum for a defendant 11 with three qualifying ACCA predicate offenses. 12 924(e)(1). 13 affirmed the judgment on July 11, 2007. 14 App’x 1 (4th Cir. 2007). See 18 U.S.C. § The United States Court of Appeals for the Fourth Circuit See People v. Izac, 239 Fed. 15 16 17 18 19 1 The Court takes judicial notice of the docket and documents filed in United States v. Izac, No. 3:02cr58 (N.D.W.Va.). See Mir v. Little Company of Mary Hosp., 844 F.2d 646, 649 (9th Cir. 1988) (court may take judicial notice of court records). 2 20 21 22 23 24 25 26 27 28 numbers. Respondents’ Exhibits do not bear consecutive pages The Court uses the ECF pagination. 3 Although Petitioner references an “assault” conviction, it appears that Petitioner had been found guilty of two counts of attempting to injure an officer. See United States v. Izac, 2012 WL 8466142, at *2 (N.D.W.Va. Sept. 5, 2012). 4 ACCA increases the sentences of certain federal defendants who have three prior convictions “for a violent felony,” including “burglary, arson, or extortion.” 18 U.S.C. § 924(e). Under the “categorical approach” endorsed by the United States Supreme Court, a prior conviction qualifies as an ACCA predicate offense only if the statutory elements of the offense are the same as, or narrower than, those of the “generic” crime. See Descamps v. United States, 133 S. Ct. 2276, 2281 (2013). 2 1 On July 15, 2014, Petitioner filed in this Court an uncaptioned 2 document titled “motion seeking relief from a federal judgment,” 3 purportedly seeking relief pursuant to 28 U.S.C. section 2241 (“the 4 Petition”). 5 West Virginia conviction and sentence for being a felon in possession 6 of a firearm. 7 Opposition to Petition for Writ of Habeas Corpus, etc.,” contending 8 that the Petition constitutes a second or successive motion to vacate 9 under 28 U.S.C. section 2255. 10 Petitioner seeks to challenge his Northern District of On October 6, 2014, Respondent filed “Government’s Petitioner filed a “Response to Government’s Opposition” on October 20, 2014. 11 PETITIONER’S CONTENTIONS 12 13 14 Petitioner contends: 15 16 1. Petitioner is “actually innocent” of his ACCA sentence 17 because his prior convictions assertedly did not qualify as ACCA 18 predicate offenses; the burglaries allegedly were non-violent 19 residential burglaries and the burglaries and the “assault” allegedly 20 did not qualify as “crimes of violence” under Sentencing Guidelines; 21 22 2. Petitioner’s sentence allegedly violated Alleyne v. United 23 States, 133 S. Ct. 2151 (2013) (“Alleyne”), because the court imposed 24 sentence based on factual findings assertedly made by the judge, not 25 /// 26 /// 27 /// 28 /// 3 1 the jury;5 and 2 3 3. Petitioner’s trial counsel allegedly rendered ineffective 4 assistance in various ways, including assertedly: (1) failing to 5 represent Petitioner adequately in pretrial proceedings; (2) failing 6 to make a motion to suppress evidence allegedly obtained by means of 7 an unlawful search; (3) failing to object to a “tainted juror”; 8 (4) failing to object to the court’s refusal to allow Petitioner to 9 present three witnesses; (5) making outbursts in front of the jury; 10 (6) failing to challenge the use of Petitioner’s prior convictions to 11 impose an ACCA sentence; and (7) generally disregarding Petitioner’s 12 case due to an asserted bipolar disorder. 13 PETITIONER’S PRIOR ACTIONS 14 15 16 In the years following the 2006 imposition of his sentence, 17 Petitioner has filed numerous post-conviction challenges to his 18 /// 19 /// 20 /// 21 22 5 23 24 25 26 27 28 In Alleyne, the Supreme Court overruled its previous decision in Harris v. United States, 536 U.S. 545 (2002), and held that, under the Sixth Amendment, any fact that increases the mandatory minimum sentence for a crime is an element of the criminal offense that must be submitted to the jury and proven beyond a reasonable doubt. Alleyne, 133 S.Ct. at 2155 (concluding that Harris v. United States was inconsistent with Apprendi v. New Jersey, 530 U.S. 466 (2000) (“Apprendi”)). However, the Alleyne Court indicated that it was not disturbing the exception to Apprendi for the fact of a prior conviction. Alleyne, 133 S. Ct. at 2060 n.1. 4 1 conviction and/or sentence:6 2 3 On May 21, 2008, Petitioner filed in the sentencing court a 4 “Motion Under 28 USC § 2255 to Vacate, etc.” (Respondent’s Ex. B). 5 Therein, Petitioner asserted numerous claims, including a claim that 6 the presentence investigation report erroneously stated that 7 Petitioner had qualifying ACCA predicate convictions and a claim that 8 Petitioner’s counsel allegedly rendered ineffective assistance. 9 10 On June 2, 2008, Petitioner filed in the United States Court of 11 Appeals for the Fourth Circuit an “Application for Leave to File a 12 Second or Successive Motion to Vacate, Set Aside or Correct Sentence 13 28 U.S.C. § 2255, etc.” 14 June 9, 2008, while this Application was still pending in the Fourth 15 Circuit, Petitioner filed in the sentencing court a second “Motion 16 Under 28 USC § 2255 to Vacate, etc.,” alleging the same grounds for 17 relief as Petitioner’s first section 2255 motion (Respondent’s Ex. C). 18 On June 13, 2008, the Fourth Circuit denied Petitioner’s June 2, 2008 19 Application on the ground that Petitioner’s first section 2255 Motion 20 was still pending in the District Court and the second section 2255 21 Motion was premature (see “Order” filed June 13, 2008 in In re Izac, 22 No. 08-185 (4th Cir.)). See In re Izac, No. 08-185 (4th Cir.). On 23 24 25 On August 7, 2008, the Magistrate Judge in the Northern District of West Virginia issued a Report and Recommendation recommending 26 27 28 6 The Court takes judicial notice of the dockets and documents filed in Petitioner’s prior actions described herein. See Mir v. Little Company of Mary Hosp., 844 F.2d at 649. 5 1 denial of Petitioner’s May 21, 2008 section 2255 Motion on the merits. 2 See Izac v. United States, 2008 WL 4238946 (N.D.W.Va. Aug 7, 2008). 3 On September 11, 2008, the District Judge issued an order adopting the 4 Report and Recommendation. 5 (N.D.W.Va. Sept. 11, 2008). 6 of appealability on March 23, 2009. 7 Fed. App’x 210 (4th Cir. 2009). See Izac v. United States, 2008 WL 4238949 The Fourth Circuit denied a certificate See United States v. Izac, 319 8 9 On September 15, 2010, Petitioner sought to challenge his West 10 Virginia sentence by filing a habeas corpus petition in the United 11 States District Court for the District of New Jersey (see “Petition, 12 etc.” filed September 15, 2010, in Izac v. Zickefoose, No. 1:10-cv- 13 4744-RMB (D.N.J.)). 14 report contained inaccurate information concerning Petitioner’s prior 15 convictions used to enhance his ACCA sentence. 16 the New Jersey District Court issued an order ruling on four of 17 Petitioner’s actions then pending in that court, including 18 Petitioner’s habeas petition in Izac v. Zickefoose. 19 District Court denied the petition on the ground that the petition was 20 actually a second or successive section 2255 motion. 21 Norwood, 2010 WL 3810216 (D.N.J. Sept. 23, 2010). Petitioner again alleged that the presentence On September 23, 2010, The New Jersey See Isac v. 22 23 On June 27, 2011, Petitioner filed another section 2255 motion in 24 the sentencing court (Respondent’s Lodgment D). 25 among other things, that he was “actually innocent” of his ACCA 26 sentence because the sentence allegedly was based on prior convictions 27 that did not qualify as ACCA predicate offenses. 28 alleged a claim of ineffective assistance of counsel for assertedly 6 Petitioner asserted, Petitioner also 1 failing to file a motion to suppress assertedly illegally obtained 2 evidence and failing to challenge Petitioner’s sentence on the ground 3 that Petitioner’s prior convictions allegedly did not qualify as ACCA 4 predicate offenses. 5 a Report and Recommendation on July 19, 2011, recommending denial of 6 the motion as second or successive. 7 WL 5510732 (N.D.W.Va. July 19, 2011). 8 order adopting the Report and Recommendation on November 10, 2011. 9 See Izac v. United States, 2011 WL 5510729 (N.D.W.Va. Nov. 10, 2011). A Magistrate Judge in the sentencing court issued See Izac v. United States, 2011 The District Court issued an 10 11 On January 12, 2012, Petitioner filed in the sentencing court a 12 “Motion for Review of Sentence Under 18 U.S.C. § 3741[A],” again 13 asserting his claims of unlawful search, ineffective assistance of 14 counsel and unlawful sentence due to the alleged absence of qualifying 15 ACCA predicate offenses (Respondent’s Lodgment E). 16 2012, the court denied the motion on procedural grounds and also 17 rejected on the merits Petitioner’s claim that his prior burglary 18 convictions did not constitute qualifying ACCA predicate offenses. 19 See United States v. Izac, 2012 WL 8466142, at *2 (N.D.W.Va. Sept. 5, 20 2012). On September 5, 21 22 On March 1, 2012, Petitioner filed a habeas corpus petition in 23 the United States District Court for the Southern District of West 24 Virginia (see “Motion Under 28 U.S.C. §2241,” filed March 1, 2012, in 25 Izac v. United States, No. CV 5:12-613 (S.D.W.Va.)). 26 challenged the lawfulness of his ACCA sentence, contending he was 27 “actually innocent” of the sentence because his prior burglaries 28 assertedly were not violent. Petitioner again On May 21, 2012, the Magistrate Judge in 7 1 the Southern District of West Virginia issued “Proposed Findings and 2 Recommendation,” recommending dismissal of the petition without 3 prejudice. 4 May 21, 2012). 5 Recommendation” on June 14, 2012. 6 2192290 (S.D.W.Va. June 14, 2012). See Izac v. United States, 2012 WL 2193198 (S.D.W.Va. The District Court adopted the “Proposed Findings and See Izac v. United States, 2012 WL 7 8 9 In the meantime, on May 8, 2012, Petitioner filed in the Fourth Circuit a “Motion Under 28 U.S.C. § 2244 For Order Authorizing 10 District Court to Consider Second or Successive Application for Relief 11 Under 28 U.S.C. §§ 2254 or 2255” (see Izac v. United States, No. 12- 12 195 (4th Cir.)). 13 section 2255 petition asserting claims of unlawful search, unlawful 14 sentence due to alleged absence of qualifying ACCA predicate offenses 15 (assertedly non-violent and non-residential burglaries), and 16 ineffective assistance of counsel in failing to file a motion to 17 suppress and failing to challenge Petitioner’s sentence. 18 Circuit denied the motion on May 31, 2012 (see “Order” filed May 31, 19 2012 in In re Izac, No. 12-195 (4th Cir.)). Petitioner thereby sought leave to file another The Fourth 20 21 On August 16, 2012, Petitioner filed another section 2255 motion 22 in the sentencing court (see Respondent’s Lodgment F). 23 alleged claims of unlawful search, ineffective assistance of counsel 24 in failing to file a motion to suppress and purported “actual 25 innocence” of his ACCA sentence because the sentence assertedly was 26 unsupported by qualifying ACCA predicate offenses. 27 2012, the sentencing court denied the motion as untimely and 28 successive (see Respondent’s Lodgment G). 8 Petitioner On December 18, The Fourth Circuit denied a 1 certificate of appealability on October 25, 2013. 2 See United States v. Izac, 544 Fed. App’x 239 (4th Cir. 2013). 3 4 On September 27, 2012, Petitioner filed in the sentencing court 5 another “Motion for Review of Sentence Under 18 U.S.C. § 3742[A]” (see 6 United States v. Izac, No. 3:02cr58 (N.D.W.Va.). 7 the motion as an appeal and directed the clerk to transmit the motion 8 to the Court of Appeals (see Respondent’s Lodgment A, ECF Docket No. 9 14, Ex. A, p. 32, “Paperless Order” filed October 4, 2012, in United 10 States v. Izac, No. 3:02cr58 (N.D.W.Va.)). 11 affirmed on February 25, 2013. 12 The court construed App’x 238 (4th Cir. 2013). The Fourth Circuit See United States v. Izac, 511 Fed. 13 14 On March 1, 2013, Petitioner filed in the Fourth Circuit another 15 “Motion Under 28 U.S.C. § 2244 For Order Authorizing District Court to 16 Consider Second or Successive Application for Relief Under 28 U.S.C. 17 §§ 2254 or 2255” (see In re Charles Izac, No. 13-147 (4th Cir.)). 18 Petitioner therein asserted claims of alleged unlawful search, alleged 19 ineffective assistance of counsel in failing to file a motion to 20 suppress, and alleged “actual innocence” of Petitioner’s sentence 21 because Petitioner’s prior convictions supposedly did not qualify as 22 ACCA predicate offenses. 23 the motion (see “Order” filed March 13, 2013, in In re Charles Izac, 24 No. 13-147 (4th Cir.)). On March 13, 2013, the Fourth Circuit denied 25 26 On April 24, 2014, Petitioner filed a “Motion” in the sentencing 27 court, seeking deletion of criminal history points on the ground that 28 Petitioner’s prior offenses supposedly did not qualify as ACCA 9 1 predicate offenses (see Respondent’s Lodgment H). On April 29, 2014, 2 the sentencing court issued an order dismissing the motion as a second 3 or successive section 2255 motion. 4 1689732 (N.D.W.Va. Apr. 29, 2014). See Izac v. United States, 2014 WL 5 6 In the meantime, on April 23, 2014, Petitioner filed a petition 7 for an extraordinary writ in the Fourth Circuit (Respondent’s Ex. I).7 8 Petitioner again asserted claims of actual innocence of the ACCA 9 sentence based on allegedly nonqualifying prior convictions and 10 ineffective assistance of counsel in failing to make a motion to 11 suppress and in failing to challenge Petitioner’s sentence. 12 Petitioner also asserted that his sentence violated Alleyne. 13 August 26, 2014, the Fourth Circuit construed the petition as a 14 section 2241 habeas corpus petition and denied the petition, stating 15 that the court saw no reason to depart from the general rule that the 16 court does not entertain original habeas petitions and also stating 17 that the interests of justice would not be served by a transfer of the 18 petition to the district court. 19 Cir. Aug. 14, 2014). On See In re Izac, 2014 WL 4198353 (4th 20 DISCUSSION 21 22 23 A federal prisoner who contends that his or her conviction or 24 sentence is subject to collateral attack “may move the court which 25 26 7 27 28 This petition did not bear a caption or title (see “Petition for Extraordinary Writ, etc.,” filed April 23, 2014, in Izac v. United States, No. 14-6640 (4th Cir.)). The second page of the document bore the heading “Motion Under 28 U.S.C. §2241.” 10 1 imposed the sentence to vacate, set aside or correct the sentence.” 2 28 U.S.C. § 2255. 3 sentence must be filed under § 2255, while petitions that challenge 4 the manner, location, or conditions of a sentence’s execution must be 5 brought pursuant to § 2241 in the custodial court.” 6 Campbell, 204 F.3d 861, 864 (9th Cir. 2000) (citations and footnote 7 omitted). 8 under 28 U.S.C. section 2241 for a section 2255 motion. “Generally, motions to contest the legality of a Hernandez v. A prisoner generally may not substitute a habeas petition 9 10 An application for a writ of habeas corpus in behalf of a 11 prisoner who is authorized to apply for relief by motion 12 pursuant to this section, shall not be entertained if it 13 appears that the applicant has failed to apply for relief, 14 by motion, to the court which sentenced him, or that such 15 court has denied him relief, unless it also appears that the 16 remedy by motion is inadequate or ineffective to test the 17 legality of his detention. 18 19 28 U.S.C. § 2255(e); see Stephens v. Herrera, 464 F.3d 895, 897-99 20 (9th Cir. 2006), cert. denied, 549 U.S. 1313 (2007); Hernandez v. 21 Campbell, 204 F.3d at 864. 22 23 Here, Petitioner repeatedly and unsuccessfully has applied for 24 relief under section 2255 in the sentencing court as well as in other 25 district courts. 26 merits by the sentencing court. 27 rejected Petitioner’s applications for leave to file a second or 28 successive section 2255 motion. Petitioner’s first such motion was denied on the The Fourth Circuit subsequently has 11 1 “Under the savings clause of § 2255, however, a federal prisoner 2 may file a habeas corpus petition pursuant to § 2241 to contest the 3 legality of a sentence where his remedy under section 2255 is 4 ‘inadequate or ineffective to test the legality of his detention.’” 5 Hernandez v. Campbell, 204 F.3d at 864-65; see also Stephens v. 6 Herrera, 464 F.3d at 897. 7 2255 exclusivity is a “narrow” exception. 8 1057, 1059-60 (9th Cir.), cert. denied, 540 U.S. 1051 (2003); United 9 States v. Pirro, 104 F.3d 297, 299 (9th Cir. 1997). This “savings clause” exception to section Ivy v. Pontesso, 328 F.3d 10 11 Mere lack of success in the sentencing court does not make the 12 section 2255 remedy “inadequate or ineffective.” 13 States, 463 F.2d 229, 230 (9th Cir. 1972), cert. denied, 410 U.S. 912 14 (1973); see Tripati v. Henman, 843 F.2d 1160, 1162-63 (9th Cir.), 15 cert. denied, 488 U.S. 982 (1988). 16 disappointed prisoner/movant incarcerated in a district different from 17 the sentencing district could pursue a repetitive section 2241 18 petition in the district of incarceration. Boyden v. United If the rule were otherwise, every 19 20 Similarly, neither the enforcement of the statute of limitations 21 nor the enforcement of restrictions on successive section 2255 motions 22 renders the section 2255 remedy “inadequate or ineffective” within the 23 meaning of the statute. 24 Cir. 1999), cert. denied, 528 U.S. 1178 (2000) (dismissal of a prior 25 section 2255 motion as successive does not render the section 2255 26 remedy “inadequate or ineffective”); Gilbert v. United States, 640 27 F.3d 1293, 1308 (11th Cir. 2011) (en banc), cert. denied, 132 S. Ct. 28 1001 (2012) (dismissal of earlier section 2255 motion as successive See Moore v. Reno, 185 F.3d 1054, 1055 (9th 12 1 does not render the section 2255 remedy “inadequate or ineffective”); 2 Hill v. Morrison, 349 F.3d 1089, 1092 (8th Cir. 2003) (“a § 2255 3 motion is not ‘inadequate or ineffective’ merely because: (1) § 2255 4 relief has already been denied, (2) the petitioner has been denied 5 permission to file a second or successive § 2255 motion, (3) a second 6 or successive § 2255 motion has been dismissed, or (4) the petitioner 7 has allowed the one year statute of limitations and/or grace period to 8 expire.”) (citations, internal brackets and quotations omitted); 9 Cradle v. U.S. ex rel. Miner, 290 F.3d 536, 539 (3d Cir. 2002) 10 (“Section 2255 is not inadequate or ineffective merely because the 11 sentencing court does not grant relief, the one-year statute of 12 limitations has expired, or the petitioner is unable to meet the 13 stringent gatekeeping requirements of the amended § 2255”) (citations 14 omitted); Robinson v. United States, 2011 WL 4852499, at *2 (C.D. Cal. 15 Oct. 12, 2011) (savings clause does not apply merely because the 16 statute of limitations “now prevents the courts from considering a 17 section 2255 motion”); cf. Ivy v. Pontesso, 328 F.3d at 1060 (“[I]t is 18 not enough that the petitioner is presently barred from raising his 19 claim . . . by motion under § 2255. 20 opportunity to raise it by motion.”). He must never have had the 21 22 Petitioner contends that the savings clause applies because 23 Petitioner purportedly is “actually innocent” of his ACCA sentence 24 (Petition, pp. 1-2).8 25 nullity” because his prior convictions allegedly did not qualify as Petitioner contends his sentence was a “legal 26 27 28 8 Petitioner does not contend he is “actually innocent” of the underlying crime of possession of a firearm by an exfelon. 13 1 ACCA predicate offenses and because the court allegedly imposed 2 sentence based on facts assertedly found by the judge rather than by 3 the jury (Petition, pp. 2-4). 4 5 A federal prisoner may file a section 2241 petition under the 6 savings clause if the prisoner “(1) makes a claim of actual innocence, 7 and (2) has not had an unobstructed procedural shot at presenting that 8 claim.” 9 denied, 133 S. Ct. 1264 (2013) (citation and internal quotations Marrero v. Ives, 682 F.3d 1190, 1192 (9th Cir. 2012), cert. 10 omitted). 11 demonstrate that, in light of all the evidence, it is more likely than 12 not that no reasonable juror would have convicted him.” 13 United States, 523 U.S. 614, 623 (1998) (citation and quotations 14 omitted). 15 insufficiency.’” 16 v. United States, 523 U.S. at 623) (internal brackets omitted). “[T]o establish actual innocence, petitioner must Bousley v. “‘Actual innocence means factual innocence, not mere legal Marrero v. Ives, 682 F.3d at 1193 (quoting Bousley 17 18 Petitioner’s arguments that Petitioner’s prior convictions 19 assertedly did not qualify as ACCA predicate offenses and that his 20 sentence allegedly violated Alleyne present “purely legal arguments” 21 that do not suffice to show Petitioner’s actual innocence. 22 Marrero v. Ives, 682 F.3d at 1193-95 (“purely legal” claim that 23 petitioner was wrongly classified as a career offender did not entail 24 a claim of actual innocence; noting cases in other circuits holding 25 that a petitioner generally cannot assert a cognizable claim of actual 26 innocence of a noncapital sentencing enhancement). 27 Alleyne does not apply retroactively on collateral review. 28 v. United States, F.3d See Furthermore, See Hughes , 2014 WL 5368857 (9th Cir. Oct. 23, 14 1 2014); accord In re Mazzio, 756 F.3d 487, 489-90 (6th Cir. 2014); 2 United States v. Reyes, 755 F.3d 210, 212 (3d Cir. 2014), pet. for 3 cert. filed (Oct. 16, 2014) (No. 14-6816, 14A272); In re Kemper, 735 4 F.3d 211, 212 (5th Cir. 2013); In re Payne, 733 F.3d 1027, 1029–30 5 (10th Cir. 2013). 6 ineffective assistance of counsel, similarly fail to show “actual 7 innocence.” 8 2355508, at *2 (E.D. Cal. May 29, 2013) (claims of ineffective 9 assistance of counsel do not show actual innocence for purposes of the 10 savings clause); Vasquez v. Norwood, 2009 WL 1704996, at *2 (C.D. Cal. 11 June 15, 2009) (same). Petitioner’s other claims, which concern alleged See, e.g., Cantillanos-Medina v. United States, 2013 WL 12 13 Accordingly, the savings clause does not apply in the present 14 case.9 15 this Court lacks jurisdiction. Therefore, the Petition is a section 2255 motion over which 16 17 A court lacking jurisdiction of a civil action may transfer the 18 action to a court in which the action could have been brought, 19 provided the transfer is “in the interest of justice.” 20 1631; see Cruz-Aguilera v. I.N.S., 245 F.3d 1070, 1074 (9th Cir. 21 2001). 22 normally dismissal of an action that could be brought elsewhere is 28 U.S.C. § “Normally transfer will be in the interest of justice because 23 9 24 25 26 27 28 In light of the Court’s conclusion that Petitioner has failed to show “actual innocence” within the meaning of the savings clause, the Court need not, and does not, determine whether Petitioner has had or still has an “unobstructed procedural shot” at presenting his claim based on Alleyne. The Court does not intend its ruling here to preclude Petitioner from seeking relief on this claim through a section 2255 motion filed in the sentencing court following authorization by the Fourth Circuit. 15 1 time consuming and justice-defeating.” 2 Id. at 1074 (citations and quotations omitted). 3 4 In determining whether to transfer an action, the Court must 5 consider whether the action would have been timely had the action been 6 filed in the proper forum. 7 232, 233 (9th Cir. 1988). 8 statute of limitations bars the present action, given the fact that 9 Petitioner’s direct appeal concluded in 2007. See Taylor v. Soc. Sec. Admin., 842 F.2d It may well be that the applicable one-year See 28 U.S.C. § 10 2255(f). 11 because, for a separate reason, a transfer would be an idle act. 12 in Crosby v. United States, 2011 WL 6986789 (C.D. Cal. Dec. 15, 2011), 13 adopted, 2012 WL 84768 (C.D. Cal. Jan. 11, 2012), and Scott v. Ives, 14 2010 WL 295786 (E.D. Cal. Jan. 13, 2010), a transfer to the district 15 of conviction would not benefit Petitioner because the district of 16 conviction would be unable to entertain the matter. 17 District Court for the Northern District of West Virginia could not 18 entertain this “second or successive” section 2255 motion absent 19 Fourth Circuit authorization. In any event, the Court should not transfer this action As The United States See 28 U.S.C. § 2244, 2255(h). 20 21 In his Response, Petitioner states that if his claim of actual 22 innocence does not succeed, Petitioner wishes to invoke the All Writs 23 Act, 28 U.S.C. section 1651(a) (Response, p. 2). 24 for issuance of a writ pursuant to the All Writs Act must be brought 25 in the sentencing court, here the United States District Court for the 26 Northern District of West Virginia. 27 F.3d 1127, 1131 (9th Cir. 2002), cert. denied, 537 U.S. 1178 (2003) 28 (writ of error corum nobis may only be brought in the sentencing 16 However, a motion See United States v. Monreal, 301 1 court); Madigan v. Wells, 224 F.2d 577, 578 n.2 (9th Cir. 1955), cert. 2 denied, 351 U.S. 911 (1956) (same); Valencia-Mazariegos v. United 3 States, 2014 WL 1767706, at *2 (W.D. Tex. May 1, 2014) (petition for 4 writ of corum nobis or audita querela must be brought in sentencing 5 court); Harris v. United States, 2009 WL 2957811, at *1 (W.D. Wash. 6 Sept. 14, 2009) (writ of error audita querela challenging federal 7 conviction must be filed in sentencing court). 8 Petitioner’s de facto section 2255 motion, a transfer of Petitioner’s 9 putative All Writs Act motion to the Northern District of West Like a transfer of 10 Virginia would be an idle act. 11 limitations on second or successive section 2255 motions by seeking 12 relief under the All Writs Act. 13 States, 287 F.3d 758, 761 (9th Cir.), cert. denied, 537 U.S. 1022 14 (2002); United States v. Valdez-Pacheco, 237 F.3d 1077, 1079-80 (9th 15 Cir. 2001); see also In re Davenport, 147 F.3d 605, 608 (7th Cir. 16 1998) (“if Congress has forbidden federal prisoners to proceed under 17 2241 even when 2255 is closed to them - then it would be senseless to 18 suppose that Congress permitted them to pass through the closed door 19 simply by changing the number 2241 to 1651 on their motions”). A prisoner may not avoid the statutory See, e.g., Matus-Leyva v. United 20 RECOMMENDATION 21 22 23 For all of the foregoing reasons, IT IS RECOMMENDED that the 24 Court issue an Order: (1) accepting and adopting this Report and 25 /// 26 /// 27 /// 28 /// 17 1 Recommendation; and (2) directing that Judgment be entered denying and 2 dismissing the Petition without prejudice. 3 4 DATED: October 29, 2014. 5 6 7 ______________/S/________________ CHARLES F. EICK UNITED STATES MAGISTRATE JUDGE 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 18 1 2 NOTICE Reports and Recommendations are not appealable to the Court of 3 Appeals, but may be subject to the right of any party to file 4 objections as provided in the Local Rules Governing the Duties of 5 Magistrate Judges and review by the District Judge whose initials 6 appear in the docket number. 7 Federal Rules of Appellate Procedure should be filed until entry of 8 the judgment of the District Court. 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 No notice of appeal pursuant to the

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.


Why Is My Information Online?