United States District Court, D. Arizona
RECOMMENDATION ON MOTION TO VACATE, SET ASIDE OR CORRECT SENTENCE AND MOTION FOR
CERTIFICATE OF APPEALABILITY
JAMES F. METCALF, Magistrate Judge.
I. MATTERS UNDER CONSIDERATION
Movant, following his conviction in the United States District Court for the District of Arizona, filed a Motion to Vacate, Set Aside or Correct Sentence pursuant to 28 U.S.C. § 2255 on August 8, 2013 (Doc. 1), supplemented by pages 2 to 7 of his Affidavit filed September 4, 2013 (Doc. 5). On November 25, 2013, Respondent filed its Response (Doc. 9). Movant filed his Amended Reply on February 18, 2014 (Doc. 18).
In the interim, Movant filed a Motion for Certificate of Appealability on December 20, 2013 (Doc. 12). Respondent filed its Response on February 11, 2014 (Doc. 17), and Movant filed his Reply on February 26, 2014 (Doc. 19).
The Movant's Motion to Vacate (Doc. 1) and Motion for Certificate of Appealability (Doc. 12) are now ripe for consideration. Accordingly, the undersigned makes the following proposed findings of fact, report, and recommendation pursuant to Rule 10, Rules Governing Section 2255 Cases, Rule 72(b), Federal Rules of Civil Procedure, 28 U.S.C. § 636(b) and Rule 72.2(a)(2), Local Rules of Civil Procedure.
II. RELEVANT FACTUAL & PROCEDURAL BACKGROUND
A. FACTUAL BACKGROUND
From 1978 through 2007, Movant was convicted in the state courts of Arizona in five separate cases on charges of burglary, attempted aggravated assault, aggravated assault, possession of drug paraphernalia, and aggravated assault. On March 12, 2010, Movant was found in possession of a.22 caliber cartridge. (CR Doc. 28, Superseding Indictment.) (The docket in the underlying criminal case, CR-11-0856-PHX-SRB, is referenced herein as "CR Doc. ___.")
The possession was discovered during a search while Movant was on probation with the State of Arizona. He was charged by state authorities with violating his probation and being a felon in possession, based upon a weapon found at the same time. Subsequent testing revealed that the firearm would not fire, and state law did not prohibit a felon's possession of ammunition. Accordingly, the felon in possession charge was dismissed and Movant entered into a plea agreement with state authorities and plead guilty to violating his state probation. (Exhibit A, R.T. 1/4/12 at 6-8.)
B. PROCEEDINGS AT TRIAL
On May 3, 2011, Movant was indicted in this Court on one count of Felon in Possession of Ammunition, in violation of 18 U.S.C. § 922(g)(1) and 924(a)(2), with a forfeiture allegation seeking forfeiture of the ammunition and a "homemade firearm, ' commonly referred to as a zip gun." (CR Doc. 1, Indictment.) Counsel was appointed. (CR Doc. 5, M.E. 9/23/11.) A Superseding Indictment (CR Doc. 28) was filed on December 27, 2011, expanding the allegations of Movant's prior convictions.
Movant filed pro se a Motion for Change of Attorney (CR Doc. 21), a Motion for New Counsel (CR Doc. 24), and a Motion to Dismiss Indictment (CR Doc. 40, 41). These pro se motions were denied. (CR Doc. 46, M.E. 1/4/12.)
The Court limited the government's proof on prior convictions as predicate felonies to the 1982 attempted aggravated assault and the 1994 and 2007 convictions on aggravated assault. (Exhibit A, R.T. 1/4/12 at 18.) The Court opined, however, that the ten year time limitations in the Federal Rules of Evidence might limit the use of the older convictions for purposes of impeachment in the event Movant chose to testify at trial. ( Id. at 18-19.)
Movant proceeded to a jury trial on January 10, 2012, and was found guilty on January 11, 2012. (CR Doc. 53, M.E. 1/10/12; CR Doc. 57, M.E.1/11/12.)
Movant filed pro se an additional Motion to Dismiss (CR Doc. 54), a Motion to Dismiss for Fast and Speedy Trial (CR Doc. 64), a Motion to Suppress Evidence (CR Doc. 65), a Motion to Dismiss Priors (CR Doc. 77). Each were denied as improperly filed pro se while represented. (CR Doc. 78, Order 2/28/12.)
Movant filed pro se a Motion for Reconsideration (CR Doc. 79), a second Motion for Reconsideration (CR Doc. 80), and a Motion to Dismiss for Multiplicity (CR Doc. 81). The latter motion was founded upon the earlier plea agreement and conviction in state court proceedings. ( Id. ) Each of these motions were denied. (CR Doc. 82, Order 3/26/12; and CR Doc. 83, Order 3/26/12.)
Movant appeared for sentencing on April 2, 2012, and was sentenced to 180 months in prison. (CR Doc. 85, M.E. 4/2/12; CR Doc. 88, Judgment.)
C. PROCEEDINGS ON DIRECT APPEAL
Movant filed, through counsel, a direct appeal. Counsel filed a brief evidencing an inability to find an issue for appeal, and seeking to withdraw. Movant filed a pro se supplemental brief. The Ninth Circuit found no arguable grounds for relief, granted the motion to withdraw, denied a motion for substitute counsel, and affirmed Movant's conviction and sentence. (CR Doc. 103, Mem. Dec. 4/23/13.)
D. PRESENT MOTION TO VACATE
Motion - Movant commenced the current case by filing his Motion to Vacate, Set Aside or Correct Sentence pursuant to 28 U.S.C. § 2255 on August 8, 2013 (Doc. 1). Movant's Motion asserts the following four grounds for relief:
(1) ineffective assistance of counsel;
(2) he is seriously mentally ill but an "18 U.S.C. § 4241 was never ordered";
(3) an administrative welfare search transformed into an unlawful investigative search;
(4) state law protected his rights as a citizen and does not criminalize possession of ammunition by a felon.
The Court ordered his Motion supplemented by his Affidavit attached to his motion to supplement (Doc. 5 at 2-7). (Order 10/1/13 at 2, 3.)
Response - On November 25, 2013, Respondent filed its Response (Doc. 9). Respondent concedes the motion is timely, construes all of Movant's claims as related to his ineffectiveness claims, and asserts that counsel was effective because: (1) prior felony convictions are relevant for conviction and sentencing and 18 U.S.C. § 922 does not limit the age of predicate felonies, and Movant can only attack the validity of those convictions in this case on the basis of a denial of counsel; (2) federal, not state, law controls this conviction, and Movant violated that federal law; (3) Movant's mental illness did not negate the required intent nor render him incompetent to stand trial; and (4) the seizure of evidence was lawful. Movants do not separately address the merits of the substantive claims in Grounds 2, 3, and 4.
Reply - Movant filed his original Reply (Doc. 10) on December 2, 2013. He then proceeded to file serial amendments (Doc. 11, 13, 14). The latter was construed as a motion to amend, and was denied without prejudice. Movant was granted leave to file an amended reply, "which should contain all of Movant's arguments in reply to the Response (Doc. 9)." (Order 2/4/14, Doc. 15 at 1-2.)
Movant filed his Amended Reply on February 18, 2014 (Doc. 18), arguing the merits of his claims.
Motion for Certificate of Appealability and Interlocutory Appeal - In the interim, Movant filed a Motion for Certificate of Appealability on December 20, 2013 (Doc. 12), seeking to argue his mental capacity, warrantless search, and the improper reliance on his prior convictions.
Movant filed a "Notice of Appeal" on February 6, 2014 (Doc. 16), seeking to appeal "the judgment" entered in this Court on February 3, 2014 (the date of Movant's signature).
The Court directed Respondent to respond to the motion. (Order 2/4/14, Doc. 15 at 2.) Respondent filed its Response on February 11, 2014 (Doc. 17), arguing that no appealable decision has been issued in this Court, and thus the request is premature, and that Movant has failed to make the showing necessary under 28 U.S.C. § 2253 for a certificate of appealability.
Movant filed his Reply on February 26, 2014 (Doc. 19), arguing various constitutional violations in ...