Ortiz

Filing 5

ORDER DISMISSING PETITION WITH LEAVE TO AMEND re 1 - Signed by JUDGE SUSAN OKI MOLLWAY on 6/6/2016. "(1) The Petition is DISMISSED with leave to amend on or before July 5, 2016. Ortiz must file the amende d petition on court forms, name the proper respondent, clarify which conviction he challenges, assert the federal bases for such claims, and detail the facts supporting those grounds. (2) Ortiz is NOTIFIED that his Petition appears time-barred on its face. He is DIRECTED to explain why his claims are not time-barred under 28 U.S.C. § 2244(d), or why he is entitled to equitable tolling. (3) Ortiz is DIRECTED to submit the filing fee or an in forma pauperis application as prev iously directed. See Doc. No. 4. He need not submit another prison trust account statement. (4) The Clerk of Court SHALL send Ortiz a blank petition for writ of habeas corpus and an in forma pauperis application and instructions so he may comply with this order. (5) Failure to timely comply with the directions in this Order SHALL result in dismissal of this action without prejudice." (emt, )CERTIFICATE OF SERVICEParticipan ts 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 shall be served by first class mail at the address of record on June 7, 2016. A copy of the court's petition for writ of habeas corpus form and in forma pauperis application shall be included in the mailing to Mr. Ortiz.

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
LARRY JAMES ORTIZ, #A0053511, )
)
)
Petitioner,
)
vs.
)
)
UNIDENTIFIED,
)
)
Respondent.
)
)

CIV. NO. 16-000259 SOM/KSC
ORDER DISMISSING PETITION WITH
LEAVE TO AMEND

ORDER DISMISSING PETITION WITH LEAVE TO AMEND
Before the court is pro se petitioner Larry James Ortiz’s
petition for writ of habeas corpus brought pursuant to 28 U.S.C.
§ 2254.

For the following reasons, the Petition is DISMISSED

with leave granted to amend on or before July 5, 2016.
I.

BACKGROUND1

On October 4, 1988, Ortiz was convicted in the Circuit Court
of the First Circuit, State of Hawaii (“circuit court”), of two
counts of Robbery in the First Degree, two counts of Kidnapping,
Burglary in the First Degree, and Possession of Firearm by a
Person Convicted of Certain Crimes, in Cr. No. 88-0459.
2016 WL 300214, at *1.

Ortiz,

The circuit court sentenced Ortiz to

concurrent terms of life with the possibility of parole for the
Robbery and Kidnapping convictions, and twenty-year terms for the
1

These facts are taken from Ortiz v. State, No. CAAP-140001136, 2016 WL 300214, at *1 (Haw. App. Jan. 22, 2016), cert.
rejected, 2016 WL 2984230 (Apr. 6, 2016), because the Petition
lacks any supporting details. See 28 U.S.C. § 2254(e)(1); see
also McNeal v. Adams, 623 F.3d 1283, 1285 n.1 (9th Cir. 2010)
(citing Taylor v. Maddox, 366 F.3d 992, 999 (9th Cir. 2004)).

Burglary and Possession of Firearm convictions.
Supreme Court affirmed on August 15, 1989.

Id.

The Hawaii

Id.

On or about November 20, 2007, Ortiz, proceeding pro se,
filed a post-conviction petition pursuant to Rule 40 of the
Hawaii Rules of Penal Procedure (“HRPP”)(“First Rule 40
Petition”).

Id.; see also Ortiz v. State, No. 29240, 2009 WL

3063324, at *1 (Haw. App. Sept. 25, 2009).

The circuit court

denied the First Rule 40 Petition, and the Intermediate Court of
Appeals (“ICA”) affirmed on September 25, 2009.2

Id.; 2016 WL

300214, at *1.
Four years later, on or about December 23, 2013, Ortiz filed
another pro se Rule 40 Petition (“Second Rule 40 Petition”).

Id.

He alleged ten grounds for relief under the United States
Constitution, the Hawaii constitution, and Hawaii state law.

On

August 21, 2014, the circuit court denied the Second Rule 40
Petition.

Id. at *2.

On January 22, 2016, the ICA affirmed, holding that “the
issues in the Second [Rule 40] Petition are waived and relief
pursuant to HRPP Rule 40 is not available,” because Ortiz failed
to prove extraordinary circumstances justifying his failure to

2

On appeal, Ortiz argued that his extended sentences were
(1) void ab initio under state law, and (2) illegal under
Apprendi v. New Jersey, 530 U.S. 466 (2000), and State v.
Maugaotega, 115 Haw. 432, 168 P.3d 562 (2007). See Ortiz v.
State, No. 29240, 2009 WL 3063324, at *1 (Haw. App. Sept. 25,
2009).
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raise the issues on direct appeal or in the First Rule 40
Petition.

Id.

The ICA further held that, even if Ortiz’s claims

were not waived, they were without merit.

Id. at *2-3.

6, 2016, the Hawaii Supreme Court rejected certiorari.

On April
See

Ortiz, 2016 WL 2984230, at *1.
Ortiz completed the present federal Petition on May 18, and
it was received and filed on May 23, 2016.

The Petition names no

Respondent and refers to two different state criminal
convictions: (1) Cr. No. 88-0459 and (2) Cr. No. 95-2198 (for
Escape in the Second Degree).
Ortiz raises two claims for relief: (1) the imposition of an
extended term sentence was illegal (Ground One); and (2)
ineffective assistance of counsel (Ground Two).

Although his

claims are not clearly outlined, Ortiz appears to allege that,
because the Robbery and Kidnapping charges involved only one
“episode,” or course of conduct, they cannot support an extended
term sentence.

He also argues that his attorney was ineffective

in failing “to file [a] motion for illegal search and seizure” as
Ortiz says he

requested.
II.

LEGAL STANDARD

Rule 4 of the Rules Governing Section 2254 Cases provides in
pertinent part:
If it plainly appears from the petition and any
attached exhibits that the petitioner is not entitled
to relief in the district court, the judge must dismiss

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the petition and direct the clerk to notify the
petitioner.
The Advisory Committee Notes to Rule 8 indicate that the court
may dismiss a petition for writ of habeas corpus, either on its
own motion under Rule 4, pursuant to the respondent’s motion to
dismiss, or after an answer to the petition has been filed.
Herbst v. Cook, 260 F.3d 1039 (9th Cir. 2001).

See

A petition for

habeas corpus should not be dismissed without leave to amend
unless it appears that no tenable claim for relief can be pleaded
were such leave granted.

Jarvis v. Nelson, 440 F.2d 13, 14 (9th

Cir. 1971).
III. DISCUSSION
First, a petitioner seeking a writ of habeas corpus must
name as a respondent to the petition the state officer having
custody of him.

See Rule 2(a) of the Rules Governing § 2254

Cases; Ortiz-Sandoval v. Gomez, 81 F.3d 891, 894 (9th Cir. 1996);
Stanley v. Cal. Sup. Ct., 21 F.3d 359, 360 (9th Cir. 1994).

The

correct respondent is normally the warden of the facility in
which the petitioner is incarcerated, or the chief officer in
charge of state penal institutions.

Brittingham v. United

States, 982 F.2d 378, 379 (9th Cir. 1992).

Ortiz is DIRECTED to

file an amended petition naming the official with the ability to
release him from custody as Respondent.

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Second, although it appears that Ortiz attacks his judgment
of conviction in Cr. No. 88-0459, he also refers to his
conviction in Cr. No. 95-2198, making it unclear what is being
challenged.

“A petitioner who seeks relief from judgments of

more than one state court must file a separate petition covering
the judgment or judgments of each court.”
Rules Governing § 2254 Cases.

See Rule 2(e) of the

Ortiz is DIRECTED to clarify which

conviction or sentence he challenges if he files an amended
petition.
Third, Ortiz fails to specify the federal bases for his
challenge to his convictions or sentences.

That is, he fails to

allege “that he is in custody in violation of the Constitution or
laws or treaties of the United States.”

See 28 U.S.C. § 2254(a).

The court cannot make an educated guess as to what federal
provisions Ortiz alleges were violated during his state
proceedings.

Ortiz is DIRECTED to clarify the federal bases for

his claims.
Fourth, a one-year limitation period applies to applications
for writs of habeas corpus, subject to certain tolling
conditions.

See 28 U.S.C. § 2244(d)(1)3 and (2) (tolling the

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Under 28 U.S.C. § 2244(d)(1), there is a one-year period
of limitation on an application for writ of habeas corpus by a
person in custody pursuant to a state court judgment. The
limitation period runs from the latest of(A)

the date on which the judgment became final by the
(continued...)
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statute while a “properly filed” State post-conviction petition
is pending).

Ortiz is NOTIFIED that the Petition appears time-

barred on its face, notwithstanding his explanation that he is
illiterate and required help to file the Petition.4

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(...continued)
conclusion of direct review or the expiration of the
time for seeking such review;

(B)

the date on which the impediment to filing an
application created by State action in violation of the
Constitution or laws of the United States is removed,
if the applicant was prevented from filing such by
State action;

(C)

the date on which the constitutional right asserted was
initially recognized by the Supreme Court, if the right
has been newly recognized by the Supreme Court and made
retroactively applicable to cases on collateral review;
or

(D)

the date on which the factual predicate of the claim or
claims presented could have been discovered through the
exercise of due diligence.

4

Equitable tolling is available when “extraordinary
circumstances beyond a prisoner’s control ma[d]e it impossible to
file a petition on time.” Roy v. Lampert, 465 F.3d 964, 968 (9th
Cir. 2006); see also Holland v. Florida, 560 U.S. 631 (2010). In
the amended petition, if Ortiz continues to say that his
illiteracy hindered the filing of the petition, he must show that
his illiteracy is an “‘extraordinary circumstance’ beyond his
control” that rendered it impossible to timely file a petition,
and that, although he diligently pursued his claims, his
illiteracy made it impossible to meet the deadline under the
totality of the circumstances and despite reasonable access to
assistance. See Stancle v. Clay, 692 F.3d 948, 958-60 (9th Cir.
2012) (holding equitable tolling unavailable when inmate failed
to show he could not have filed a timely petition with the
assistance he was receiving) (citing Bills v. Clark, 628 F.3d
1092, 1100 (9th Cir. 2010)).
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Fifth, to the extent Ortiz alleges here (as he did in his
First Rule 40 Petition) that his extended term sentences violate
the doctrine set forth in Apprendi v. New Jersey, 530 U.S. 466
(2000), as applied in Hawaii by State v. Maugaotega, 115 Hawai‘i
432, 168 P.3d 562 (2007), he is NOTIFIED that neither Apprendi
nor Maugaotega applies retroactively to extended term sentences
imposed in 1988.

Carrington v. United States, 503 F.3d 888, 893

(9th Cir. 2007).
Finally, to the extent Ortiz argues that his counsel was
ineffective in failing to move to suppress evidence at trial
under the Fourth Amendment’s exclusionary rule, he is notified
that generally such claims are not cognizable on federal habeas
relief.

See Stone v. Powell, 428 U.S. 465, 494 (1976) (stating

that “where the State has provided an opportunity for full and
fair litigation of a Fourth Amendment claim, a state prisoner may
not be granted federal habeas corpus relief on the ground that
evidence obtained in an unconstitutional search or seizure was
introduced at his trial”).

The only inquiry this court can make

regarding such claims is whether Ortiz had a fair opportunity to
litigate his claim, “not whether he did, in fact, do so, or even
whether the claim was correctly decided.”
Gomez, 81 F.3d 891, 899 (9th Cir. 1996).

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Ortiz–Sandoval v.

IV.

CONCLUSION

(1) The Petition is DISMISSED with leave to amend on or
before July 5, 2016.

Ortiz must file the amended petition on

court forms, name the proper respondent, clarify which conviction
he challenges, assert the federal bases for such claims, and
detail the facts supporting those grounds.
(2) Ortiz is NOTIFIED that his Petition appears time-barred
on its face.

He is DIRECTED to explain why his claims are not

time-barred under 28 U.S.C. § 2244(d), or why he is entitled to
equitable tolling.
(3) Ortiz is DIRECTED to submit the filing fee or an in
forma pauperis application as previously directed.
4.

See Doc. No.

He need not submit another prison trust account statement.
(4) The Clerk of Court SHALL send Ortiz a blank petition for

writ of habeas corpus and an in forma pauperis application and
instructions so he may comply with this order.
(5) Failure to timely comply with the directions in this
Order SHALL result in dismissal of this action without prejudice.
IT IS SO ORDERED.
DATED: Honolulu, Hawaii, June 6, 2016.

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

Ortiz, Civ. No. 16-00259 SOM/KSC; OSCs Hab 2016 Ortiz som 16 259

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