Ortiz

Filing 21

ORDER SETTING PRELIMINARY HEARING re 20 - Signed by JUDGE SUSAN OKI MOLLWAY on 12/22/2016. Show Cause Hearing set for 2/6/2017 09:45 AM before JUDGE SUSAN OKI MOLLWAY. Motion terminated: 20 REQUEST to Enter Brief of Amicus Curiae filed by Mickey A. Maddox. Mickey A. Maddox terminated. "(1) A hearing is hereby scheduled for Monday, February 6, 2017, at 9:45 a.m. Ortiz should be prepared to explain how his allege d inability to read and write prevented him from timely challenging his conviction and sentence in the federal court. (2) Respondent is DIRECTED to ensure that someone at the prison has read this Order to Ortiz. (3) Respondent may submit a ny documents tending to refute Ortiz's claims that he is illiterate and was therefore unable to pursue relief on his claims in this court on or before Monday, January 30, 2017. Respondent must ensure, however, that Ortiz receives any documents submitted to the court at least three working days before the hearing, and that these documents have been timely read to Ortiz. (4) The court will thereafter decide whether to schedule further hearings or to request more briefing. (5) Maddox's Request to Enter Brief of Amicus Curiae, ECF No. 20, is DENIED. " (emt, )CERTIFICATE OF SERVICEParticipants registered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Larry James Ortiz and Mickey Maddox shall be served by first class mail at the addresses of record on December 23, 2016.

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
LARRY JAMES ORTIZ,
#A0053511,

)
)
)
Petitioner,
)
)
vs.
)
)
JOSEPH TAYLOR,
)
)
Respondent.
)
_________________________ )

CIV. NO. 16 000259 SOM/KSC
ORDER SETTING PRELIMINARY
HEARING

ORDER SETTING PRELIMINARY HEARING
I.

BACKGROUND

On May 23, 2016, pro se petitioner Larry James
Ortiz filed a Petition for Writ of Habeas Corpus
pursuant to 28 U.S.C. § 2254.

Pet., ECF No. 1.

In the

Petition, Ortiz states that he is “unable to read and
write,” and that his illiteracy prevented him from
filing earlier, but that he had assistance in filing
the Petition.

Id., PageID #13.

identify his assistant.

Ortiz does not

It appears that Ortiz

personally signed the Petition.
On June 6, 2016, the court dismissed Ortiz’s
Petition because it challenged two separate criminal

convictions, appeared time barred on its face, failed
to name a respondent, and otherwise failed to state a
claim.

See Order Dismissing Petition With Leave to

Amend (“Dismissal Order”), ECF No. 5.

The court

carefully explained these deficiencies and gave Ortiz
leave to amend on or before July 5, 2016.
On July 7, 2016, Ortiz wrote the court requesting
appointment of the Federal Public Defender to represent
him because he is illiterate.

ECF No. 8.

Ortiz

attached two letters from the Federal Public Defender
to him, dated January 28, 2015, and June 17, 2016, in
support of his request.

See ECF Nos. 8 1, 8 2.

These

letters detail Ortiz’s efforts to obtain the Federal
Public Defender’s representation in state or federal
court in 2005, 2010, 2015, and 2016.

In response, the

undersigned sent Ortiz another copy of the Dismissal
Order and explained again what he must do to proceed.
Letter, ECF No. 9.
On August 15, 2016, inmate Mickey A. Maddox
submitted a letter to the court regarding the issues
presented in Ortiz’s Petition, apparently seeking
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permission to assist Ortiz.

ECF No. 11.

Because

Maddox’s letter did not say that Ortiz had sought his
help, or that he was in communication with Ortiz, the
court did not respond to Maddox.

Instead, the court

sent Ortiz a copy of Maddox’s letter and another copy
of the Dismissal Order, explaining again what Ortiz had
to do to properly amend his claims.

ECF No. 13.

The

court then extended the date for filing an Amended
Petition.

ECF No. 14.

On September 29, 2016, Ortiz filed an Amended
Petition.

Am. Pet., ECF No. 15.

The Amended Petition

complied with the court’s directions, and it appeared
that Ortiz had personally signed it, although he again
stated that he was illiterate and “unschooled in legal
issues.”

Id., PageID #114.

Ortiz did not indicate

that he had had assistance with the Amended Petition.
On October 17, 2016, the court issued a Preliminary
Order to Show Cause (“OSC”) and Answer the Amended
Petition.

OSC, ECF No. 16.

The OSC directed Ortiz to

explain on or before November 28, 2016, why the Amended
Petition should not be dismissed as time barred under
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28 U.S.C. § 2244(d).

The OSC set Respondent’s deadline

for filing an Answer or dispositive motion on January
9, 2017.

The OSC stated that the Answer or motion

should address, among other things, Ortiz’s response to
the OSC.
On November 28, 2016, prison officials received
Ortiz’s presumed Response to the OSC for filing with
the court.

See ECF No. 19 1 (Response envelope).

Maddox drafted this document, which was not personally
signed by Ortiz.

If Ortiz approved this Response, but

was unable to sign it, it is timely.

See Rule 3(d) of

the Rules Governing Section 2254 Cases in the United
States District Courts (“A paper filed by an inmate
confined in an institution is timely if deposited in
the institution’s internal mailing system on or before
the last day for filing.”).
On December 1, 2016, Respondent electronically
filed a Preliminary Response to the Petition and OSC.
ECF No. 18 (filestamped 3:53 p.m.).

This was before

Respondent received Ortiz’s Response to the OSC.
Respondent asserted that Ortiz’s claims were
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statutorily time barred and briefly argued that,
because Ortiz had failed to respond to the OSC, he had
failed to establish any basis for equitable tolling of
the statute of limitation.
Several minutes later, the court received and file
stamped the Response to the OSC and certificate of
service.

ECF No. 19 (filestamped 4:00 p.m.).

The

Clerk docketed Ortiz’s Response the next day, December
2, 2016. 2016.
With the Response, Maddox also submitted a Request
to Enter Brief of Amicus Curiae (“Request”).
20.

ECF No.

Maddox stated that he was making the request

because Ortiz was illiterate and “tests at or near to
Third Grade levels.”

Id., PageID #179.

Maddox said

that he had prepared Ortiz’s state post conviction
petition three years earlier, but had had “no direct
contact with” Ortiz, “no means whatsoever to speak with
or communicate with” Ortiz, and had not seen Ortiz “for
a long time.” Id.
II.

DISCUSSION

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Neither Ortiz’s Response (as drafted by Maddox),
nor Respondent’s Preliminary Answer is responsive to
this court’s directions in the OSC.
First, Ortiz has not personally signed the Response
to the OSC, and there is no indication that he has
reviewed and approved its contents.

See Fed. R. Civ.

P. 11; Local Rule for the District of Hawaii LR10.2(e);
cf., 28 U.S.C. § 2242 (stating that applications for
writ of habeas corpus “shall be in writing signed and
verified by the person for whose relief it is intended
or by someone acting in his behalf”).
Second, the court will not allow Maddox to file the
Response on Ortiz’s behalf.

Maddox is not, to this

court’s knowledge, a lawyer.

He is admittedly

“unschooled” and unlicensed to practice law, and may
not file documents nor pursue relief on Ortiz’s behalf
in this action.

See Simon v. Hartford Life, Inc., 546

F.3d 661, 664 (9th Cir. 2008) (“[T]he privilege to
represent oneself pro se provided by [28 U.S.C.] § 1654
is personal to the litigant and does not extend to
other parties or entities.”) (citation omitted); C.E.
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Pope Equity Trust v. U.S., 818 F.2d 696, 697 (9th Cir.
1987) (stating nonattorney may not appear or seek
relief on behalf of others).

Also, Maddox

specifically states that he has not communicated with
Ortiz in months, if not longer.

See Maddox’s Request,

ECF No. 20, PageID #179 (“The Applicant has not seen
personally the Petitioner for a long time.”).
Further, to the extent Maddox intends to act as
“next friend” to Ortiz, Maddox fails to address the
“two firm prerequisites” for attaining such status: (1)
he fails to provide an adequate explanation

such as

inaccessibility, mental incompetence, or other
disability

as to why Ortiz cannot appear on his own

behalf to prosecute the action; and (2) Maddox makes no
showing that he is “truly dedicated to the best
interests of the person the Next Friend seeks to
represent.”

See Whitmore v. Arkansas, 495 U.S. 149,

163 (1990).

The record does not support a finding that

either factor applies here.
Moreover, even if Maddox were permitted to assist
Ortiz, and, even if he and Ortiz were in regular
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contact and Ortiz had approved and signed the Response,
the Response would still have been deficient because it
does not adequately address the primary question of
whether Ortiz is time barred from pursuing this action.
That is, the Response does not analyze whether Ortiz is
entitled to equitable tolling of the statute of
limitation set forth in 28 U.S.C. § 2244(d), based on
his alleged illiteracy or any other reason.
Nothing in the record shows that Ortiz faced
extraordinary circumstances, whether because of his
inability to read and write or otherwise, while
nonetheless diligently trying to pursue his rights.
Holland v. Florida, 560 U.S. 631, 649 (2010).

Ortiz

clearly obtained assistance from Maddox and others in
the past, was able to file two state post conviction
petitions (one in 2007 and another in 2013), and was
apparently aware of his federal claims as early as
2005, when he first sought the Federal Public
Defender’s assistance.

These facts considerably

undercut any argument for equitable tolling of the
limitation period.

Ortiz bears the burden of showing
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that equitable tolling is appropriate; he has not met
that burden to date.

Miranda v. Castro, 292 F.3d 1063,

1065 (9th Cir. 2002).
Finally, because Respondent filed the Preliminary
Response to the OSC without taking into account the
prison mailbox rule noted earlier in this Order, the
Preliminary Response fails to adequately address
whether Ortiz is entitled to equitable tolling.

It is

unclear why, despite Ortiz’s consistent statements that
he is illiterate in nearly every document that he has
filed in this case, Respondent states that “the State
is [un]aware of any reason why equitable tolling would
apply.”

Preliminary Answer, ECF No. 18, PageID #132.

This court cannot tell, for example, whether Respondent
has investigated Ortiz’s prison administrative file or
any public record outside of this case that might
reveal whether Ortiz’s illiteracy prevented him from
timely filing a federal petition before April 24, 1997,
the date the statute of limitation expired on Ortiz’s
claims, or even within one year of the holding in

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Apprendi v. New Jersey, 530 U.S. 466 (2000).

See OSC,

ECF No. 16, PageID #121.
Consequently, the court will set a hearing, as set
forth below, to allow Ortiz to orally explain the
extent of his illiteracy, what efforts he took to
pursue his rights, and why he was unable to timely file
a federal petition for writ of habeas corpus within one
year after the Anti Terrorism and Effective Death
Penalty Act of 1996 (“AEDPA”) was enacted, or within
one year of June 26, 2000, the date that Apprendi was
decided.
Respondent should be prepared to respond orally to
Ortiz’s explanation.

Respondent may submit documents

showing Ortiz’s level of education, degree of literacy,
and any activity showing that Ortiz is not entitled to
equitable tolling of the statute of limitation, but
Respondent must ensure that prison officials have read
this Order and any documents Respondent intends to
submit to Ortiz before the hearing, and should be
prepared to explain these documents to Ortiz on the
record at the hearing.
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III. CONCLUSION
(1) A hearing is hereby scheduled for Monday,
February 6, 2017, at 9:45 a.m.

Ortiz should be

prepared to explain how his alleged inability to read
and write prevented him from timely challenging his
conviction and sentence in the federal court.
(2) Respondent is DIRECTED to ensure that someone
at the prison has read this Order to Ortiz.
(3) Respondent may submit any documents tending to
refute Ortiz’s claims that he is illiterate and was
therefore unable to pursue relief on his claims in this
court on or before Monday, January 30, 2017.
Respondent must ensure, however, that Ortiz receives
any documents submitted to the court at least three
working days before the hearing, and that these
documents have been timely read to Ortiz.
(4) The court will thereafter decide whether to
schedule further hearings or to request more briefing.
(5) Maddox’s Request to Enter Brief of Amicus
Curiae, ECF No. 20, is DENIED.

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IT IS SO ORDERED.
DATED: Honolulu, Hawaii; December 22, 2016.

/s/ Susan Oki Mollway
Susan Oki Mollway
United States District Judge

Ortiz v. Taylor, 1:16-00259 SOM/KSC; OSCs Hab 2016 Ortiz som 16 259 (set hrg re

illiteracy dny amicus); G:\jgross\000 CMECF.emailed for filing\2016 emailed
for filing\12.22 Ortiz 16 259 som (set hrg re illiteracy dny amicus).wpd

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