Ortega v. Mosley
Filing
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MEMORANDUM OPINION AND ORDER OF DISMISSAL dismissing case as frivolous. To the extent it can be construed as a 2255 motion, case is dismissed for lack of jurisdiction. The case is dismissed with prejudice regarding the jurisdictional issue and with out prejudice in all other respects. A separate judgment shall issue. Signed by District Judge Tom S. Lee on 8/12/14 (copy mailed to Israel Martinez Ortega, Sr. #09444-180, YAZOO CITY LOW/FCI, Inmate Mail/ParcelsP.O. Box 5000, Yazoo City, MS 39194) (LWE)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
NORTHERN DIVISION
ISRAEL MARTINEZ ORTEGA, SR.,
# 09444-180
VERSUS
PETITIONER
CAUSE NO. 3:14CV593-TSL-RHW
WARDEN BONITA MOSLEY
RESPONDENT
MEMORANDUM OPINION AND ORDER OF DISMISSAL
This matter is before the court sua sponte.
Pro se
petitioner Israel Martinez Ortega, Sr., filed this Petition for
Writ of Habeas Corpus under 28 U.S.C. § 2241 [1].
He is
presently incarcerated at the Federal Correctional Complex in
Yazoo City, Mississippi and attacks his conviction and sentence
for conspiracy to possess marijuana with intent to distribute.
The court has considered and liberally construed the pleadings.
As set forth below, this case is dismissed.
BACKGROUND
On August 4, 2014, Ortega filed the instant habeas petition
challenging his drug conviction and sentence handed down from the
Western District of Texas.
In August of 2001, he pled guilty to
conspiracy to possess marijuana with the intent to distribute.
He was sentenced on January 16, 2002 to 420 months in the custody
of the Bureau of Prisons.
On June 29, 2012, Ortega filed a Motion for Reduction of
Sentence Under 18 U.S.C. § 3582(c)(2).
The Western District of
Texas denied this motion.
United States v. Ortega, No.
4:01cr247(2)-RAJ (W.D. Tex. May 17, 2013).
On May 28, 2013, Ortega filed a Notice of Appeal, appealing
his sentence.
The Fifth Circuit Court of Appeals dismissed the
appeal as untimely.
United States v. Ortega, 551 F. App’x 243,
244 (5th Cir. Jan. 13, 2014).
In the meantime, Ortega filed a Motion to Vacate pursuant to
28 U.S.C. § 2255, on September 4, 2013.
He alleged that his
trial counsel was ineffective for (1) failing to file an appeal,
as requested, (2) not objecting to the applicability of the
Sentencing Guidelines, (3) advising petitioner that he would
receive a 33 month sentence on his guilty plea, (4) failing to
object to the quantity of marijuana attributed to petitioner, and
(5) failing to object to the indictment.
He also alleged that he
never pled guilty to a specific quantity of marijuana nor did the
trial court find a specific amount.
The Western District of
Texas denied the motion as time-barred.
United States v. Ortega,
No. 4:01cr247(2)-RAJ (W.D. Tex. Sept. 23, 2013).
Circuit affirmed.
The Fifth
United States v. Ortega, No. 13-50955 (5th
Cir. May 16, 2014).
DISCUSSION
Ortega again claims that his trial counsel was ineffective
for (1) failing to file an appeal of the sentence, as requested,
(2) not objecting to the applicability of the Sentencing
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Guidelines, (3) failing to object to the quantity of marijuana
attributed to petitioner, (4) advising petitioner that he would
receive a 33 month sentence on his guilty plea, and (5) failing
to object to the indictment, and that he never pled guilty to a
specific quantity of marijuana, nor did the trial court find a
specific amount.
Ortega additionally alleges that his attorney
failed to object to the enhanced penalty as an organizer.
A petitioner may attack the manner in which his sentence is
being executed in the district court with jurisdiction over his
custodian, pursuant to § 2241.
83, 84 (5th Cir. 1992).
United States v. Cleto, 956 F.2d
By contrast, a motion filed pursuant to
§ 2255 “provides the primary means of collateral attack on a
federal sentence.”
2000).
Pack v. Yusuff, 218 F.3d 448, 451 (5th Cir.
The proper vehicle for challenging errors that “occurred
at or prior to sentencing” is a motion pursuant to § 2255.
Cox
v. Warden, 911 F.2d 1111, 1113 (5th Cir. 1990).
Ortega’s claims that he was improperly sentenced to 420
months and that his plea was unknowing do not challenge the
execution of his federal sentence but instead attack the validity
of his sentence.
Since these alleged constitutional violations
occurred at or prior to sentencing, they are not properly pursued
in a § 2241 petition.
However, “[u]nder the savings clause of § 2255, if the
petitioner can show that § 2255 provides him an inadequate or
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ineffective remedy, he may proceed by way of § 2241.”
Wesson v.
U.S. Penitentiary, 305 F.3d 343, 347 (5th Cir. 2002).
To meet
the stringent “inadequate or ineffective” requirement, the Fifth
Circuit holds:
the savings clause of § 2255 applies to a claim (i)
that is based on a retroactively applicable Supreme
Court decision which establishes that the petitioner
may have been convicted of a nonexistent offense and
(ii) that was foreclosed by circuit law at the time
when the claim should have been raised in the
petitioner’s trial, appeal, or first § 2255 motion.
Reyes-Requena v. United States, 243 F.3d 893, 904 (5th Cir.
2001).
Ortega bears the burden of demonstrating that the § 2255
remedy is inadequate or ineffective to test the legality of his
detention.
Id. at 901.
Ortega does not invoke the savings clause.
He points to no
Supreme Court case to show he was convicted of a nonexistent
offense, nor does he argue that any of his claims were previously
foreclosed by the Fifth Circuit.
Since Ortega’s claims do not meet the stringent requirements
of the savings clause, he will not be allowed to proceed with
them under § 2241.
as frivolous.
Accordingly, the Petition shall be dismissed
To the extent it can be construed as a § 2255
motion, it shall be dismissed for lack of jurisdiction.
Pack,
218 F.3d at 454.
IT IS THEREFORE ORDERED AND ADJUDGED that, for the reasons
stated above, this cause should be and is hereby dismissed with
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prejudice regarding the jurisdictional issue only and dismissed
without prejudice in all other respects.
A separate final
judgment shall issue pursuant to Federal Rule of Civil Procedure
58.
SO ORDERED AND ADJUDGED, this the 12th day of August, 2014.
/s/Tom S. Lee
UNITED STATES DISTRICT JUDGE
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