Ortiz-Tarazon v. USA

Filing 19

ORDER Accepting 18 Report and Recommendation; the objections (Doc. 14 ) are overruled; the motion is denied and dismissed with prejudice and the Clerk of the Court shall enter judgment accordingly. ORDERED that a certificate of appealability is denied. FURTHER ORDERED that the Court has read Movant's procedurally inappropriate motion to supplement; even if the Court allowed the supplement, none of the arguments in the supplement would change the outcome of this case, therefore, the motion (Doc. 18 ) is denied. Signed by Senior Judge James A Teilborg on 2/13/17. (EJA)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Hector Raul Ortiz-Tarazon, Sr.,
Movant/Defendant,

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ORDER

v.

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No. CV-16-00073-PHX-JAT
CR-12-00877-01-PHX-JAT

USA,

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Respondent/Plaintiff.

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Pending before the Court is Movant’s motion to vacate, set aside or correct

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sentence pursuant to 28 U.S.C. § 2255. The Magistrate Judge to whom this case was

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assigned issued a Report and Recommendation (R&R) recommending that the Motion be

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denied. (Doc. 13). Movant filed objections to the R&R. (Doc. 14). The Government

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filed a response to Movant’s objections. (Doc. 17).

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This Court “may accept, reject, or modify, in whole or in part, the findings or

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recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1). It is “clear that

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the district judge must review the magistrate judge’s findings and recommendations de

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novo if objection is made, but not otherwise.” United States v. Reyna-Tapia, 328 F.3d

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1114, 1121 (9th Cir. 2003) (en banc) (emphasis in original). Because Petitioner objects

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to the overall conclusion of the R&R, the Court will review the R&R de novo.

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In his criminal case, Movant pled guilty. (Doc. 13 at 4-5). Following sentencing,

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Movant appealed. (Id. at 5). In his appeal, Movant argued that his plea was invalid

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because it did not have a sufficient factual basis. (Id. at 7-8). The Ninth Circuit Court of

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Appeals found Movant’s waiver of his right to appeal was valid, thereby implicitly

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rejecting Movant’s argument that his plea as a whole was invalid under Rule 11. (Id. at

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9).

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In his § 2255 Motion, Movant recasts the same challenge he presented to the Ninth

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Circuit Court of Appeals as an ineffective assistance of counsel claim. (Id. at 9-10).

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Specifically, Movant argues that his trial counsel and appellate counsel were ineffective

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for not making the Rule-11-invalid-plea argument.1 (Id. at 9-10). The R&R concludes

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that, because the Court of Appeals rejected the merits of Movant’s argument, both

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counsel were not ineffective for not making a meritless argument. (Id. at 9). Further, the

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R&R concludes that this Court cannot reconsider the Court of Appeals’ merits decision

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because it is the law of the case. (Id. at 9-10).

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Movant objects to the R&R and argues that the Magistrate Judge is mistaken that

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the Ninth Circuit Court of Appeals issued a merits decision because the Ninth Circuit

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Court of Appeals relied on the waiver in Movant’s plea agreement to dismiss his appeal.

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Doc. 14 at 7. Thus, Movant concludes that by applying the waiver, the Ninth Circuit

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Court of Appeals did not consider the merits of Movant’s Rule 11 claim. Id. The

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Government replies and argues the R&R is correct. Doc. 17 at 2.

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Specifically, the R&R notes:

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[T]he longstanding law of the Ninth Circuit is that a waiver is invalid if
Rule 11 is not complied with. “An appeal waiver will not apply if: 1) a
defendant’s guilty plea failed to comply with Fed.R.Crim.P. 11; 2) the
sentencing judge informs a defendant that she retains the right to appeal; 3)
the sentence does not comport with the terms of the plea agreement; or 4)
the sentence violates the law.” United States v. Bibler, 495 F.3d 621, 624
(9th Cir. 2007).

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(Doc. 13 at 8-9). The R&R notes that Movant’s argument that his plea lacks a factual
basis is based on Federal Rule of Criminal Procedure 11(b)(3).

(Id. at 9).

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Government notes that Movant specifically argued Rule 11(b)(3) to the Court of Appeals.

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Movant’s appellate counsel filed an Anders brief; thus, Movant made the Rule 11
argument pro se on appeal. Doc. 13 at 5.
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(Doc. 17 at 2 (citing Doc 10-1, Ex. A at 3)). The Ninth Circuit has held that a waiver of

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the right to appeal (such as the one enforced against Movant) is only enforceable if the

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requirements of Rule 11 were met. See United States v. Portillo-Cano, 192 F.3d 1246,

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1252 (9th Cir. 1999).

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Based on the foregoing, this Court agrees with the R&R that, although the Ninth

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Circuit Court of Appeals did not expressly hold that Movant’s plea complied with Rule

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11, the Court of Appeals must have made that finding to have found Movant’s waiver

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enforceable.2 Thus, based on the Court of Appeals decision, a finding that Rule 11 was

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met is the law of the case. Further, counsel could not have been ineffective for failing to

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raise a meritless Rule 11 argument.

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Therefore,

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IT IS ORDERED that the Report and Recommendation (Doc. 13) is accepted; the

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objections (Doc. 14) are overruled; the motion is denied and dismissed with prejudice and

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the Clerk of the Court shall enter judgment accordingly.

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IT IS FURTHER ORDERED that a certificate of appealability is denied. (See
Doc. 13 at 11-12).

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IT IS FURTHER ORDERED that the Court has read Movant’s procedurally

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inappropriate motion to supplement; even if the Court allowed the supplement, none of

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the arguments in the supplement would change the outcome of this case, therefore, the

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motion (Doc. 18) is denied.

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Dated this 13th day of February, 2017.

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Specifically, the Court of Appeals stated, “Because the record discloses no
arguable issue as to the validity of the appeal waiver, we dismiss the appeal.” CR 12877, Doc. 907-1 at 2.
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