Carlos Ortiz v. US

Filing

UNPUBLISHED PER CURIAM OPINION filed. Motion disposition in opinion--denying Motion to dismiss appeal [999232496-2] Originating case number: 1:12-cv-00689-WDQ Copies to all parties and the district court/agency. [999301151]. [13-6447]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 13-6447

CARLOS ORTIZ,
Petitioner - Appellant,
v.
UNITED STATES OF AMERICA,
Respondent - Appellee.

Appeal from the United States District Court for the District of
Maryland, at Baltimore.
William D. Quarles, Jr., District
Judge. (1:12-cv-00689-WDQ)

Submitted:

January 28, 2014

Decided:

February 21, 2014

Before DAVIS, KEENAN, and FLOYD, Circuit Judges.

Affirmed by unpublished per curiam opinion.

William B. Norman, NORMAN & TAYEH, LLC, Westlake, Ohio, for
Appellant.
Rod
J.
Rosenstein,
United
States
Attorney,
Baltimore, Maryland; Sujit Raman, Assistant United States
Attorney, Mara Zusman Greenberg, OFFICE OF THE UNITED STATES
ATTORNEY, Greenbelt, Maryland, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Carlos

Ortiz

appeals

the

district

court’s

orders

denying his petition for a writ of audita querela and his motion
filed pursuant to Fed. R. Civ. P. 59(e).

Ortiz argues that the

district court improperly construed his petition as asserting
claims under Apprendi v. New Jersey, 530 U.S. 466 (2000), and
failed to address his contention that his life sentence amounts
to a miscarriage of justice.

The Government has asked that we

consider Ortiz’s appeal as a petition for authorization to file
a successive 28 U.S.C. § 2255 (2012) motion and deny it.

For

the reasons set forth within, we affirm the district court’s
orders and deny the Government’s motion as moot.

See, e.g.,

United States v. Richter, 510 F.3d 103, 104 (2d Cir. 2007) (per
curiam) (reviewing “de novo a district court’s grant or denial
of a writ of audita querela”).
Under the All Writs Act, federal courts “may issue all
writs

necessary

jurisdictions
law.”

or

and

appropriate

agreeable

to

in
the

28 U.S.C. § 1651(a) (2012).

aid

of

usages

their
and

respective

principles

of

However, prisoners may not

resort to such writs when their challenges would be cognizable
under § 2255 or to otherwise circumvent the statutory limits on
collateral attacks.

See United States v. Rhines, 640 F.3d 69,

72 (3d Cir. 2011); United States v. Gamboa, 608 F.3d 492, 494-95
(9th Cir. 2010); cf. In re Vial, 115 F.3d 1192, 1194 n.5 (4th
2

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Cir. 1997) (en banc) (stating that § 2255 is not inadequate or
ineffective

to

test

legality

of

detention

merely

because

petitioner is unable to obtain relief under § 2255).

As the

Supreme Court has explained, § 1651 “is a residual source of
authority

to

issue

statute,”

and,

writs

“[w]here

that

a

are

not

statute

otherwise

specifically

covered

addresses

by
[a]

particular issue . . . , it is that authority, and not the All
Writs Act, that is controlling.”

Carlisle v. United States, 517

U.S. 416, 429 (1996) (internal quotation marks omitted).
Here,

Ortiz’s

contention

that

his

convictions

and

sentence are invalid under Jones v. United States, 526 U.S. 227
(1999), and our subsequent decision in United States v. Promise,
255 F.3d 150 (4th Cir. 2001) (en banc), is exactly the variety
of

claim

cognizable

suggestion,

whether

under
his

§ 2255.

claim

is

Contrary

construed

as

to

arising

statutory or constitutional error is inconsequential.
§ 2255(a).

Ortiz’s
from

28 U.S.C.

In either event, the fact that Ortiz’s challenge is

procedurally

barred

due

to

the

restrictions

on

successive

collateral attacks does not justify his proceeding under the All
Writs Act.
417

F.3d

Torres,

See Richter, 510 F.3d at 104; United States v. Holt,
1172,

282

1174-75

F.3d

1241,

(11th

Cir.

1244-47

2005);

(10th

Cir.

Davenport, 147 F.3d 605, 608 (7th Cir. 1998).

3

United

States

2002);

In

v.
re

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We also reject Ortiz’s suggestion that a miscarriage
of justice or violation of the Suspension Clause 1 might permit
his petition for a writ of audita querela. 2
104.

First,

Ortiz’s

vague

Richter, 510 F.3d at

assertions

regarding

the

insufficiency of the evidence supporting his life sentence fail
to indicate that, had the question been properly submitted to
the

jury,

sentence.

it

would

not

have

found

him

eligible

for

that

See McCleskey v. Zant, 499 U.S. 467, 494 (1991);

Trenkler v. United States, 536 F.3d 85, 99-100 (1st Cir. 2008).
Equally unavailing is Ortiz’s implication that the limits on his
ability

to

successively

attack

his

convictions

unconstitutionally deny him the benefit of changes in the law,
as none of the authority on which Ortiz relies is retroactively
applicable to cases on collateral review.

See Lyons v. Lee, 316

F.3d 528, 535 (4th Cir. 2003); see also Richter, 510 F.3d at
104; Carrington v. United States, 503 F.3d 888, 890 (9th Cir.
2007); In re Vial, 115 F.3d at 1197-98.

1

U.S. Const. art. I, § 9, cl. 2 (“The Privilege of the Writ
of Habeas Corpus shall not be suspended, unless when in Cases of
Rebellion or Invasion the public Safety may require it.”).
2

Although the district court did not specifically address
Ortiz’s claims of a miscarriage of justice, we find no reason to
remand.
See Patel v. Napolitano, 706 F.3d 370, 372 (4th Cir.
2013) (reviewing de novo issue district court did not address),
petition for cert. filed, 82 U.S.L.W. 3319 (U.S. Nov. 15, 2013)
(No. 13-606).

4

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Accordingly,

we

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affirm

the

district

court’s

orders

denying the petition for writ of audita querela and Rule 59(e)
motion and deny as moot the Government’s motion to dismiss and
recharacterize Ortiz’s appeal.

We dispense with oral argument

because the facts and legal contentions are adequately presented
in the materials before this court and argument would not aid
the decisional process.
AFFIRMED

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