Ortiz v. United States of America

Filing 10

OPINION AND ORDER dismissing 1 Motion to vacate/set aside/correct sentence (2255) as time-barred. The Clerk shall enter judgment accordingly, place a copy of the judgment in the corresponding criminal case (Case No. 2:04-cr-77-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 5/10/2017. (RKR)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
MARIA ESTER ORTIZ,
Petitioner,
v.

Case No: 2:16-cv-516-FtM-29CM
Case No. 2:04-CR-77-FTM-29CM

UNITED STATES OF AMERICA,
Respondent.

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.
#143) 1 filed on June 28, 2016.

The government filed a Response in

Opposition to Motion (Cv. Doc. #8) on September 27, 2016.
I.
On September 1, 2004, a federal grand jury in Fort Myers,
Florida returned a two-count Indictment (Cr. Doc. #6) charging
petitioner and her co-defendant with conspiracy to possess with
intent to distribute, and to distribute 500 grams or more of
cocaine, and possession with intent to distribute and distribution
of 500 grams or more of cocaine.

1

The 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

February

3,

2005,

petitioner

appeared

before

the

Magistrate Judge and entered a plea of guilty as to Count One,
with

the

government

sentencing.

to

move

(Cr. Doc. #61.)

was adjudicated guilty.

for

dismissal

of

Count

Two

at

The plea was accepted and petitioner

(Cr. Doc. #64.)

On May 31, 2005, the

Court sentenced petitioner to a term of imprisonment of 189 months
as to Count One, followed by a term of supervised release, and
dismissed Count Two on the government’s motion.

(Cr. Doc. #71.)

Judgment (Cr. Doc. #73) was filed on June 1, 2005.
Petitioner filed a Notice of Appeal (Cr. Doc. #74), and the
Court appointed new counsel on appeal (Cr. Doc. #85).

On April

26, 2006, the Eleventh Circuit affirmed petitioner’s conviction
and sentence after review of counsel’s Anders 1 brief.

(Cr. Doc.

#103); United States v. Ortiz, 178 F. App'x 889 (11th Cir. 2006).
Subsequently,

on

March

3,

2008,

petitioner

sought

the

retroactive application of Amendment 706 of the United Sentencing
Guidelines to her sentence pursuant to 18 U.S.C. § 3582(c)(2), and
the Court appointed counsel to review petitioner’s eligibility.
(Cr. Docs. ## 106, 112.)

On July 7, 2008, the Court denied the

motion because petitioner’s career offender status placed her in
the same guideline range.

(Cr. Doc. #123.)

Petitioner appealed

the Opinion and Order, and the Eleventh Circuit affirmed on May 6,

1

Anders v. California, 386 U.S. 738 (1967).

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2009.

(Cr. Doc. #129); United States v. Ortiz, 327 F. App'x 167,

167 (11th Cir. 2009).
On April 9, 2015, the Court again appointed counsel to review
petitioner’s eligibility for a reduction in her sentence under
Amendment 782.

(Cr. Doc. #139.)

On January 6, 2016, after notice

of a determination that a motion would not be filed on behalf of
petitioner because she was sentenced as a career offender and not
based on the drug quantity table in U.S. Sentencing Guidelines
Manual § 2D1.1(c), the Court relieved the Federal Public Defender
as counsel of record.

(Cr. Doc. #142.)
II.

Under the Antiterrorism and Effective Death Penalty Act of
1996 (AEDPA), federal prisoners have one year from the latest of
any of four events to file a § 2255 Motion:
(1) the date on which
conviction becomes final;

the

judgment

of

(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
(4) the date on which the facts supporting the
claim or claims presented could have been
discovered through the exercise of due
diligence.

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28 U.S.C. § 2255(f).
petitioner’s
petitioner

In this case, the Eleventh Circuit affirmed

conviction
did

not

and

seek

sentence

certiorari

on

April

review.

26,

2006,

Under

and

Section

2255(f)(1), petitioner had one year from her conviction becoming
final, or until on or before July 26, 2007, to file her § 2255
motion.

28 U.S.C. § 2255(f); Kaufmann v. United States, 282 F.3d

1336, 1338 (11th Cir. 2002) (a petitioner “gets the benefit of up
to 90 days between the entry of judgment on direct appeal and the
expiration of the certiorari period.”).

Giving petitioner the

benefit of the mailbox rule 2, her motion under § 2255 was signed
and executed for filing on June 23, 2016.

Since this date is

several years after the July 26, 2007 deadline, the motion is due
to be dismissed as untimely.
Petitioner raises only one ground in her § 2255 motion, and
has filed it pursuant to Section 2255(f)(3) based on the decision
in Johnson v. United States, 135 S. Ct. 2551 (2015), and its
retroactive application by Welch v. United States, 136 S. Ct. 1257
(2016)

to

collateral

review.

In

Johnson,

the

United

States

Supreme Court held that the Armed Career Criminal Act’s residual
clause is unconstitutionally vague.

If Johnson applies to reduce

petitioner’s sentence, and the motion is not a successive petition,

“[A] prisoner's pro se § 2255 motion is deemed filed the date it
is delivered to prison authorities for mailing.” Washington v.
United States, 243 F.3d 1299, 1301 (11th Cir. 2001) (citation
omitted).
2

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petitioner’s motion would be timely filed by the deadline of June
26, 2016.

In re Robinson, 822 F.3d 1196, 1198 (11th Cir. 2016)

(Martin, J., concurring).
III.
At sentencing, the Court determined that the Base Offense
Level was 28 based upon the combined marijuana equivalent of
approximately

534

kilograms,

but

petitioner’s

sentence

was

enhanced under the career offender provisions of U.S. Sentencing
Guidelines Manual § 4B1.1.

Petitioner was 52 when she committed

the instant offense, it involves a controlled substance, and
petitioner had at least two prior felony convictions at the time
for the sale or delivery of cocaine.
Total

Offense

acceptance
petitioner’s

of

Level

of

31

after

responsibility.

Criminal

History

This resulted in an Enhanced
deducting
The

Category

Court
VI

three

levels

for

determined

that

significantly

over-

represented her past criminal behavior and departed downward to a
Category V, resulting in a guideline range of 168 to 210 months.
After

consideration

the

advisory

recommendations

of

the

U.S.

Sentencing Guidelines, and all the factors identified in 18 U.S.C.
§ 3553(a)(1)-(7), the Court found that a sentence of 189 months of
imprisonment was sufficient, but not greater than necessary, to

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comply with the purposes set forth in 18 U.S.C. § 3553(a). 3

(Cr.

Doc. #138.)
On March 6, 2017, the United States Supreme Court affirmed
the Eleventh Circuit in Beckles v. United States, 137 S. Ct. 886
(2017), and determined that the Sentencing Guidelines are not
subject to the constitutional challenge for vagueness raised in
Johnson.

Since petitioner’s sentence was enhanced under the

Sentencing Guidelines and not enhanced under the ACCA, Johnson
does not apply to extend the statutory time limitation of one year
from

the

date

petitioner’s

conviction

became

final,

and

petitioner’s motion is also time-barred under Section 2255(f)(3).
Accordingly, it is hereby
ORDERED AND ADJUDGED:
1.

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. #143) is DISMISSED as time-barred.
2.

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:

The Court noted that petitioner had been convicted of three prior
cocaine felony offenses, and sentenced twice after violating
probation. The Court noted that the current offense was committed
while on probation, and is a serious drug offense. (Cr. Doc. #94,
p. 24.)
3

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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,

556 U.S. 180, 183 (2009).

“A [COA] may issue . . . only if the

applicant has made a substantial showing of the denial of a
constitutional right.”
showing,

Petitioner

28 U.S.C. § 2253(c)(2).

“must

demonstrate

that

To make such a

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 May, 2017.

Copies:
Petitioner
AUSA

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10th

day