Ortiz v. USA - 2255

Filing 3

MEMORANDUM OPINION. Signed by Judge Paul W. Grimm on 4/3/2015. (kns, Deputy Clerk)(c/m 4/7/15)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
CARLOS ALBERTO ORTIZ, # 52883-037
Petitioner

v
UNITED STATES
Respondent

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Civil Action No. PWG-14-3376
Criminal Action No. PWG-I0-519

MEMORANDUM OPINION
On October 23, 2014, self-represented
captioned "Motion for Judicial Notice."

Petitioner Carlos Alberto Ortiz filed a paper

ECF No. 288.

On November 17, 2014, this court

notified Ortiz that it intended to treat his filing as a Motion to Vacate, Set Aside or Correct
Sentence pursuant to 28 U.S.C.
pursue a

S 2255

to pursue a

S

2255, and granted him time to indicate whether he wished to

proceeding or withdraw the paper. ECF No. 293. Ortiz indicated his intention

S 2255

Motion by filing a completed

S 2255

Motion on court provided forms. ECF

No. 295.
On December 16, 2014, the court ordered Respondent to file an Answer solely on the
issue of the timeliness of the Motion.

ECF No. 300. On January 5, 2015, Ortiz submitted a

filing styled "Affidavit Judicial [sic] of Newly Discovered Evidence" in support of the Motion
ECF No. 301.1

On January 11,2015,

Respondent filed an answer seeking dismissal of the

Motion as time-barred. ECF No. 302. On February 9, 2015, the court granted Ortiz twenty-eight

1 This filing appears to be an excerpt from an article from an unidentified source about waivers of ineffective
assistance of counsel claims in plea agreements. (ECF 301). Petitioner's plea agreement does not contain a waiver
of ineffective assistance of counsel claims. (ECF 115). In any event, the "affidavit" does not change the analysis of
the 9 2255 Motion's timeliness.

days to show why principles of equitable tolling apply or the Motion is otherwise timely. ECF
No. 303. Ortiz has not filed a reply.
The case is ready for disposition.

No hearing is necessary to resolve this case. Local

Rule 105.6. (2014); see also Rule 8 of the Rules Governing

S

2255 Proceedings.

For the

following reasons the Motion will be dismissed as time-barred and a Certificate of Appealability
will not issue.
I.

Background
On November 2, 2010, Ortiz pleaded guilty to Conspiracy to Distribute Controlled

Substances, in violation of21 U.S.C.
18 U.S.c.

S

S

846, and Felon in Possession ofa Firearm, in violation of

922(g)(1). ECF No. 115. On March 29, 2011, the court sentenced him to a 151-

month term of imprisonment and a five-year term of supervised release. ECF No. 195.2 The
judgment and commitment order issued on the same day. ECF No. 196.
II.

One-Year Limitations Period
Petitions filed under 28 U.S.c.

S

2255 must be filed within one year of the date the

judgment of conviction becomes final or, if later, from the date that a petitioner first could have
raised his claim based on criteria specified in 28 U.S.c.

S 2255(f)(2)-(4).3

Ortiz does not argue

2 On May 6, 2013, Ortiz's sentence was reduced to a 121-month term pursuant to Amendment
750 to the
United States Sentencing Guidelines, which retroactively lowered penalties for crack-cocaine offenses. (ECF 264).

S 2255(t) provides in pertinent part:
A I-year period of limitation shall apply to a motion under this section. The limitation period shall run
from the latest of-(I) the date on which the judgment of conviction becomes final;
(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;

3 Section 28 U.S.c.

2

for or demonstrate any impediment to filing a motion or newly recognized right as delineated in
28 U.S.C.

S 2255(£)(2)-(3).

Insofar as Ortiz argues the one-year period started to run the date on

which the facts supporting the claim or claims presented could have been discovered through the
exercise of due diligence under 28 U.S.c.

S 2255(£)(4),

his

S 2255

Motion, supplemented

S 2255

Motion, and Motion captioned "Ineffective Assistance of Counsel Based on Newly Discovered
Evidence," ECF Nos. 288, 295, 301, do not mention any newly discovered facts relating to his
case nor a date when such facts could have been discovered-simply
realize some of the errors in his case .. See ECF No. 295.
support a timeliness analysis under

that he did not initially

Ortiz provides no information to

S 2255(£)(4).

Thus, the one-year limitation period began to run from "the date on which the judgment
of conviction bec[ame] final."

S

2255(£)(1). Petitioner's judgment of conviction became final

on March 29, 2011, and the one-year clock began running on that date. Ortiz had until March
29, 2012, to file a Motion under

S

2255. Ortiz filed his

S

2255 Motion on October 23, 2014,

more than two years beyond the one-year statute of limitations

set forth in 28 U.S.C.

S 2255(£)(1).
Under these facts, the Motion was untimely and must be dismissed unless principles of
equitable tolling are found to apply. See Hollandv. Florida, 560 U.S. 631,649-54

(2010); Rouse

v. Lee, 339 F.3d 238, 246-47 (4th Cir. 2003) (en bane). "[T]o be entitled to equitable tolling, an
otherwise time-barred petitioner must present (1) extraordinary circumstances,

(2) beyond his

control or external to his own conduct, (3) that prevented him from filing on time." United States

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

3

V.

Sosa, 364 F.3d 507,512 (4th Cir. 2004) (internal quotation marks omitted); Holland, 560 U.S.

at 649-54. A petitioner is entitled to equitable tolling if he demonstrates

that he has been

pursuing his rights diligently and an extraordinary circumstance stood in his way and prevented
timely filing. Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005).

Ortiz, however, does not claim

entitlement to equitable tolling or provide any adequate explanation for the more than two years
that passed between the expiration of the limitations period and the filing of the

S

2255 Motion.

Accordingly, the Motion will be dismissed as time-barred.
III.

Certificate of Appealability

An appeal may not be taken from the final order in a
a Certificate of Appealability ("COA").

28 U.S.C.

S

S 2255

proceeding unless a judge issues

2253(c)(1)(B).

A COA will not issue

unless a prisoner makes "a substantial showing of the denial of a constitutional right." 28 U.S.C.

S

2253(c)(2).

This requirement is satisfied only when "reasonable jurists could debate whether

(or, for that matter, agree that) the petition should have been resolved in a different manner or
that the issues presented were' adequate to deserve encouragement to proceed further.'"

Slack v.

McDaniel, 529 U.S. 473, 484 (2000) (quoting Barefoot v. Estelle, 463 U.S. 880,893

n. 4

(1983)). Ortiz has not satisfied this standard.
IV.

Conclusion
For these reasons, I will deny and dismiss the Motion as time-barred.

Appealability shall not issue.

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Date

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A Certificate of