Ortiz v. United States of America
OPINION AND ORDER dismissing 1 Motion to vacate/set aside/correct sentence (2255), or alternatively denying on merits. The Clerk shall enter judgment accordingly, place a copy of the judgment in the corresponding criminal case (Case No. 2:12-cr-93-FTM-29CM), and close the civil file. A certificate of appealability and leave to appeal in forma pauperis are denied. Signed by Judge John E. Steele on 4/16/2018. (RKR)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
STEVEN L. ORTIZ,
Case No: 2:16-cv-185-FtM-29CM
Case No. 2:12-CR-93-FTM-29CM
UNITED STATES OF AMERICA,
OPINION AND ORDER
This matter comes before the Court on petitioner’s Motion
Under 28 U.S.C. Section 2255 to Vacate, Set Aside or Correct
Sentence by a Person in Federal Custody (Cv. Doc. #1; Cr. Doc.
#39) 1 and Memorandum of Law in Support (Cv. Doc. #2), both filed
on March 9, 2016.
The government filed a Response in Opposition
to Motion (Cv. Doc. #10) on May 3, 2016.
Reply (Cv. Doc. #13) on June 6, 2016.
The petitioner filed a
For the reasons set forth
below, the § 2255 motion is dismissed, or in the alternative, is
Court will refer to the docket of the civil habeas case as
“Cv. Doc.”, and will refer to the docket of the underlying criminal
case as “Cr. Doc.”
On August 6, 2012, after Steven L. Ortiz (petitioner) waived
prosecution by indictment and consented to an information, the
government filed a five-count Information (Cr. Doc. #2) charging
petitioner with four counts of distribution of an unspecified
amount of cocaine on various dates, and one count of distribution
of 500 grams or more of cocaine.
The wavier was accepted, and
petitioner entered guilty pleas on all counts pursuant to a Plea
Agreement (Cr. Doc. #3).
The guilty pleas were accepted, and
petitioner was adjudicated guilty on all counts.
(Cr. Doc. #15.)
Guidelines Manual, determined that petitioner’s Base Offense Level
for 854 grams of cocaine hydrochloride was a Level 26.
#34, p. 12, 30-32.)
Petitioner received a two level increase
because a loaded 9 mm handgun was discovered under petitioner’s
residence used for manufacturing or distributing cocaine.
p. 13, ¶¶ 33-34.)
This resulted in an Adjusted Offense Level of
(Id., ¶ 38.)
Petitioner was found to qualify as a
career offender under U.S. Sentencing Guidelines Manual § 4B1.1
based on the following Florida felony convictions:
Deliver, Manufacture, Possess With Intent to Sell or Deliver a
controlled substance; and (b) two counts of Aggravated Assault on
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a Law Enforcement Officer (counted as a single conviction).
With a statutory maximum penalty of 40 years imprisonment
for Count Five, the Total Offense Level became Level 34.
Adjusted Total Offense Level was a Level 31.
(Id., ¶¶ 41-43.)
Petitioner scored as a Criminal History Category of V, but the
career offender enhancement required an increase to a Category VI.
U.S. Sentencing Guidelines Manual § 4B1.1 (2012).
(Id., ¶¶ 58-59, 115.)
Petitioner did not object
at sentencing to the prior convictions, or the career offender
On February 11, 2013, the government filed a motion for a
petitioner’s substantial assistance.
This request was granted,
reducing petitioner’s Sentencing Guideline range to 151 to 188
months of imprisonment.
(Cr. Doc. #43, p. 5.)
The Court imposed
a below-Guidelines sentence of 144 months imprisonment on all
counts, to be served concurrently, followed by a term of supervised
(Cr. Docs. ## 29, 30.)
On December 17, 2013, the government filed a post-judgment
motion for downward department, seeking a four-level reduction in
the offense level based on petitioner’s continuing substantial
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petitioner’s sentence was reduced.
(Cr. Doc. #32.)
Judgment (Cr. Doc. #33) filed on January 21, 2014, sentenced
petitioner to 110 months imprisonment on each count, to be served
concurrently, followed by a term of supervised release.
Petitioner did not file a direct appeal from the original
judgment or the amended judgment.
Petitioner argues that in light of Johnson v. United States,
135 S. Ct. 2551 (2015), his career offender enhancement under the
Sentencing Guidelines was unlawful and the resulting sentence
violated his right to due process.
Petitioner argues that this
challenge to the career offender enhancement is cognizable in a §
2255 proceeding, and that he is not a career offender under U.S.
Sentencing Guidelines Manual § 4B1.1 because aggravated assault on
felony”, and his conviction for sale of cocaine was not proved by
the government to be a “controlled substance offense.”
argues that his motion is timely under § 2255(f)(3) because it was
filed within one year of Johnson. Petitioner seeks to be resentenced without the career offender enhancement.
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A. Need For Evidentiary Hearing
A district court shall hold an evidentiary hearing on a habeas
petition “unless the motion and the files and records of the case
conclusively show that the prisoner is entitled to no relief. . .
.” 28 U.S.C. § 2255(b).
“[I]f the petitioner alleges facts that,
if true, would entitle him to relief, then the district court
should order an evidentiary hearing and rule on the merits of his
Aron v. United States, 291 F.3d 708, 714-15 (11th Cir.
2002) (citation omitted).
Viewing the facts alleged in the light
petitioner is not entitled to relief, and therefore an evidentiary
hearing is not required.
B. Timeliness of § 2255 Motion
Under the Antiterrorism and Effective Death Penalty Act of
1996 (AEDPA), federal prisoners have one year from the latest of
the following four triggering events to file a Section 2255 Motion:
(1) the date on which the judgment of conviction
(2) the date on which the impediment to making a
motion created by governmental action in violation
of the Constitution or laws of the United States is
removed, if the movant was prevented from making a
motion by such governmental action;
(3) the date on which the right asserted was
initially recognized by the Supreme Court, if that
right has been newly recognized by the Supreme
Court and made retroactively applicable to cases
on collateral review; or
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(4) the date on which the facts supporting the claim
or claims presented could have been discovered
through the exercise of due diligence.
28 U.S.C. § 2255(f)(1)-(4).
Petitioner asserts that his § 2255
motion is timely under § 2255(f)(3) based on Johnson v. United
States, 135 S. Ct. 2551 (2015), which was found retroactively
applicable by Welch v. United States, 136 S. Ct. 1257 (2016).
“In order for a Supreme Court decision to restart the oneyear statute of limitations under § 2255(f)(3), the decision must
both (1) recognize a new right and (2) be made retroactively
applicable to cases on collateral review.”
Beeman v. United
States, 871 F.3d 1215, 1219 (11th Cir. 2017).
The timeliness of
a § 2255 motion must be judged on a claim-by-claim basis.
v. Tucker, 704 F.3d 917, 918, 921–26 (11th Cir. 2013) (en banc)
approach to determine timeliness.”)
“In other words, if a § 2255
movant asserts that his § 2255 motion is timely because he filed
it within one year of the Supreme Court’s issuance of a decision
recognizing a new right, we must determine whether each claim
particular claim does not depend on the new decision, that claim
is untimely and must be dismissed.”
Beeman, 871 F.3d at 1219.
While the motion was filed within one year of Johnson, it
fails to satisfy the requirements of § 2255(f)(3).
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recognized right created by Johnson was the unconstitutionality of
the residual clause of the ACCA, not the career offender provision
petitioner’s case relates to the residual clause of the ACCA, and
in Beckles v. United States, 137 S. Ct. 886 (2017), the United
States Supreme Court held that the career offender provision of
constitutional challenge for vagueness.
The government, however, has stated that the motion is timely.
(Cv. Doc. #10, pp. 2-3.)
While the Court would disagree, the
government has the option of not raising a procedural defect if it
See Wood v. Milyard, 566 U.S. 463, 466 (2012) (the
Accordingly, the government has at least forfeited any
C. Procedural Default
The United States asserts that the issues petitioner seeks to
raise are procedurally defaulted because petitioner failed to
object at sentencing, and did not raise the issues in a direct
The United States asserts that petitioner cannot show
cause or actual prejudice, or actual innocence, to overcome the
procedural default, and therefore is barred from raising the issues
on collateral review.
(Cv. Doc. #10, pp. 3-10.)
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Spencer v. United States, 773 F.3d 1132, 1135 (11th Cir.
prejudice on this ground.
D. Cognizability of Challenge to Prior Convictions
The United States further argues that even if petitioner
overcomes the procedural default, he is not entitled to relief
cognizable under § 2255.
(Cv. Doc. #10, pp 10-15.)
Although a prisoner “may challenge a sentencing error as a
‘fundamental defect’ on collateral review when he can prove that
he is either actually innocent of his crime or that a prior
conviction used to enhance his sentence has been vacated,” a
challenge to petitioner’s status as a career offender under the
Sentencing Guidelines is not cognizable in a § 2255 motion unless
the sentence exceeds the statutory maximum.
Spencer, 773 F.3d at
1138 (explaining that “erroneously designating a defendant as a
career offender” is not cognizable in a § 2255 motion because it
is “not a fundamental defect that inherently results in a complete
miscarriage of justice”).
See also Bell v. United States, 688 F.
App’x 593, 594 (11th Cir. 2017).
The sentence in this case did
not exceed the statutory maximums (20 years imprisonment on four
counts and 40 years imprisonment on one count), petitioner does
not assert he is factually innocent of the offense of conviction
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or the underlying predicate convictions, and none of petitioner’s
petitioner’s claim is not cognizable under § 2255, and the motion
must be dismissed without prejudice on this ground. 1
E. Plea Agreement Waiver Provision
The United States also asserts that petitioner has knowingly
and voluntarily waived his right to collaterally challenge his
sentence in a § 2255 proceeding.
(Cv. Doc. #10, pp. 15-16.)
specifically waived, and that the record does not reflect that he
understood the waiver provision.
(Cv. Doc. #13, pp. 17-20.)
A waiver provision in a plea agreement is valid if made
knowingly and voluntarily.
United States v. Weaver, 275 F.3d
1320, 1333 (11th Cir. 2001) (citing United States v. Bushert, 997
F.2d 1343, 1350-51 (11th Cir. 1993)).
To establish that the waiver
was made knowingly and voluntarily, the government must show that
defendant about the waiver during the plea colloquy, or (2) the
record makes clear that the defendant otherwise understood the
full significance of the waiver.
United States v. Johnson, 541
F.3d 1064, 1066 (11th Cir. 2008).
“This Court applies a ‘strong
To the extent that petitioner seeks to convert his motion to one
under 28 U.S.C. § 2241 if the claim is not cognizable (Cv. Doc.
#13, p. 6), the Court declines to do so.
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presumption’ that statements made by a defendant during h[is] plea
colloquy are true.”
Allen v. United States, No. 16-17232-C, 2017
WL 5999039, at *3 (11th Cir. June 2, 2017) (quoting United States
v. Medlock, 12 F.3d 185, 187 (11th Cir. 1994)).
Petitioner’s written Plea Agreement (Cr. Doc. #3) contains a
waiver of appeal and collateral challenge provision, which states
in pertinent part:
The defendant agrees that this Court has
jurisdiction and authority to impose any
sentence up to the statutory maximum and
defendant’s sentence or to challenge it
collaterally on any ground, including the
ground that the Court erred in determining the
applicable guidelines range pursuant to the
United States Sentencing Guidelines, except
(a) the ground that the sentence exceeds the
defendant’s applicable guideline range as
determined by the Court pursuant to the United
States Sentencing Guidelines; (b) the ground
that the sentence exceeds the statutory
maximum penalty; or (c) the ground that the
sentence violates the Eighth Amendment to the
Constitution; provided, however, that if the
government exercises its right to appeal the
sentence imposed, as authorized by Title 18,
United States Code, Section 3742(b), then the
defendant is released from his waiver and may
appeal the sentence as authorized by Title 18,
United States Code, Section 3742(a).
(Cr. Doc. #3, p. 14-15) (emphasis added).
Each page was initialed
During the change of plea hearing, the Court
advised petitioner that he had limited his rights to appeal and
collaterally challenge in the Plea Agreement:
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Basically, what you are saying there is that
you agree that the Court does have the
jurisdiction and the authority to impose any
sentence up to the statutory maximum, and that
you are expressly waiving your right to appeal
your sentence or to challenge it collaterally
on any ground, including the ground that the
Court erred in determining the applicable
guideline range pursuant to the sentencing
guidelines, except the ground that the
sentence exceeds your applicable guideline
range as determined by the Court, the ground
that the sentence exceeds the statutory
maximum penalty, or the ground that the
sentence violates the Eighth Amendment to the
Constitution. Do you understand that?
THE DEFENDANT: Yes, ma'am.
THE COURT: This provision, though, also says
that if the Government exercises its right to
appeal the sentence in your case, then you
also have a right to appeal the sentence. Do
you understand that?
THE DEFENDANT: Yes, ma'am.
(Cr. Doc. #41, p. 15.)
The record thus establishes that the waiver provision was
Under 28 U.S.C. § 2255(a), a prisoner in federal custody
asserting that his sentence is “otherwise subject to collateral
attack” may move to vacate, set aside, or correct the sentence.
anything other than a direct appeal, including a challenge under
28 U.S.C. § 2255.
See, e.g., Williams v. United States, 396 F.3d
1340, 1342 (11th Cir. 2005) (“The plain language of the agreement
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informed Williams that he was waiving a collateral attack on his
Under these circumstances, the sentence-appeal waiver
precludes a § 2255 claims based on ineffective assistance at
The Court finds that a valid plea waiver exists, and was
understood by petitioner.
The motion will be dismissed on this
basis as well.
F. Merits of Career Offender Arguments
Finally, the United States argues that petitioner is not
entitled to relief on the merits because, unlike the cases he
cites, petitioner was not sentenced under the ACCA and his prior
felony convictions did not require the application of a residual
clause or the modified categorical approach.
(Cv. Doc. #10, pp.
The Court agrees that, if the issues are properly before
it, they are denied on the merits.
Under the career offender provisions of the United States
Sentencing Guidelines, a defendant is deemed a career offender “if
(1) the defendant was at least eighteen years old at the time the
defendant committed the instant offense of conviction; (2) the
instant offense of conviction is a felony that is either a crime
defendant has at least two prior felony convictions of either a
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Sentencing Guidelines Manual § 4B1.1(a) (2012).
29 when he committed the offense, all of the offenses charged in
convictions which were either a crime of violence or a controlled
(Doc. #34, p. 13, ¶ 39.)
Controlled Substance Offense
Petitioner argues that the government failed to establish
that his drug conviction was a qualifying controlled substance
Presentence Report as unsupported by Shepard 2-approved documents.
A “‘controlled substance offense’ means an offense under
export, distribution, or dispensing of a controlled substance (or
substance (or a counterfeit substance) with intent to manufacture,
Guidelines Manual § 4B1.2(b) (2012).
Nothing in Johnson spoke to
the meaning of a “serious drug offense” under the ACCA, or the
Shepard v. United States, 544 U.S.C. 13, 26 (2005) (limiting
examination for the modified categorical approach).
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Offender provision of the Sentencing Guidelines.
For purposes of
Guidelines Manual § 4B1.1, a conviction under Fla. Stat. § 893.13
qualifies as a “controlled substance offense.”
United States v.
Pridgeon, 853 F.3d 1192, 1198 (11th Cir. 2017); United States v.
Smith, 775 F.3d 1262, 1268 (11th Cir. 2014).
conviction was and is a controlled substance offense.
Crime of Violence
Petitioner argues that the predicate offense of aggravated
assault on a law enforcement officer does not qualify as a violent
felony under the residual clause in light of Johnson, and it is
not an enumerated offense.
Guidelines, a “crime of violence” was defined in 2012 as any felony
(1) has as an element the use, attempted use,
or threatened use of physical force against
the person of another, or
(2) is burglary of a dwelling, arson,
extortion, involves use of explosives,
otherwise involves conduct that presents
serious potential risk of physical injury
U.S. Sentencing Guidelines Manual § 4B1.2(a) (2012).
United States, 137 S. Ct. 886 (2017), held that the career offender
provision of the Sentencing Guidelines was not void for vagueness
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under the Johnson ACCA decision.
Included as a listed “crime of
Sentencing Guidelines Manual § 4B1.2 cmt. n.1 (2012).
assault on a law enforcement officer was and is a qualifying
predicate offense under the career offender provision of the
Turner v. Warden Coleman FCI (Medium), 709
F.3d 1328, 1341 (11th Cir. 2013), abrogated on other grounds by
Johnson, 135 S. Ct. 2551; In re Rogers, 825 F.3d 1335, 1341 (11th
Accordingly, it is hereby
ORDERED AND ADJUDGED:
Petitioner’s Motion Under 28 U.S.C. Section 2255 to
Vacate, Set Aside or Correct Sentence by a Person in Federal
Custody (Cv. Doc. #1; Cr. Doc. #39) is dismissed, or alternatively,
is denied on the merits.
The Clerk of the Court shall enter judgment accordingly
and close the civil file.
The Clerk is further directed to place
a copy of the civil Judgment in the criminal file.
IT IS FURTHER ORDERED:
A CERTIFICATE OF APPEALABILITY (COA) AND LEAVE TO APPEAL IN
FORMA PAUPERIS ARE DENIED.
A prisoner seeking a writ of habeas
corpus has no absolute entitlement to appeal a district court’s
denial of his petition.
28 U.S.C. § 2253(c)(1); Harbison v. Bell,
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556 U.S. 180, 183 (2009).
“A [COA] may issue . . . only if the
applicant has made a substantial showing of the denial of a
28 U.S.C. § 2253(c)(B)(2).
To make such
a showing, Petitioner “must demonstrate that reasonable jurists
would find the district court’s assessment of the constitutional
claims debatable or wrong,” Tennard v. Dretke, 542 U.S. 274, 282
(2004), or that “the issues presented were adequate to deserve
encouragement to proceed further,” Miller-El v. Cockrell, 537 U.S.
322, 336 (2003)(citations omitted).
Petitioner has not made the
requisite showing in these circumstances.
Finally, because Petitioner is not entitled to a certificate
of appealability, he is not entitled to appeal in forma pauperis.
DONE and ORDERED at Fort Myers, Florida, this
of April, 2018.
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