Ortega v. USA
MEMORANDUM AND ORDER (See Full Order) IT IS HEREBY ORDERED that Porfirio Ortega's motion to vacate, set aside or correct his sentence under 28 U.S.C. § 2255 1 is denied. IT IS FURTHER ORDERED that this Court will not issue a certificate of appealability, as Ortega has not made a substantial showing of the denial of a federal constitutional right. Signed by District Judge Catherine D. Perry on 12/27/16. (EAB)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
UNITED STATES OF AMERICA,
No. 4:15 CV 1190 CDP
MEMORANDUM AND ORDER
Porfirio Ortega seeks to vacate, set aside or correct his sentence under 28
U.S.C. § 2255. Ortega was convicted by a jury of one count of conspiracy to
distribute more than five kilograms of cocaine, in violation of 21 U.S.C. § 846 and
21 U.S.C. § 841(b)(1)(A)(ii). Case No. 4:11CR273 CDP. He was sentenced to
132 months imprisonment, which was a variance from the sentencing guidelines
range of 151 to 188 months. Ortega appealed, and the Eighth Circuit Court of
Appeals affirmed his conviction and sentence. United States v. Porfirio Ortega,
750 F.3d 1020 (8th Cir. 2014). In 2015 I reduced his sentence to 121 months,
giving Ortega the benefit of Amendment 782 to the United States Sentencing
Guidelines, which reduced sentences for many drug offenses.
Ortega then filed this § 2255 motion, raising the following grounds for
1) He was entrapped and taken advantage of by the informant because of his
2) The court incorrectly calculated the quantity of cocaine that was reasonably
foreseeable to him;
3) During the commission of the offense “he was high and intoxicated;”
4) Ineffective assistance of counsel for the following reasons:
a. His rights were violated
b. Counsel failed to take into consideration his mental and health
c. There was a lack of physical evidence
d. Counsel never attempted to reach the truth.
The records before me conclusively demonstrate that Ortega has no right to
relief. His first three claims could have been raised before the Court of Appeals
but were not, and so they are procedurally barred. He was represented by an
experienced trial attorney who presented a vigorous defense, and his claims of
ineffective assistance of counsel are refuted by the trial record. The evidence
against him was very strong, as set forth in great detail in the Court of Appeals
opinion rejecting his claim that the evidence was insufficient. I will deny Ortega’s
motion without an evidentiary hearing for the reasons that follow.1
In 2016 Ortega wrote the Clerk of Court inquiring about a “traverse” that he said he had filed in
November of 2015. The Court never received the traverse. Ortega provided a certified mail
receipt that indicated he had mailed it to “U S Dept. of Justice E. Dist of Missouri.” The Clerk
inquired of the United States Attorneys’ office and they also had no record of receiving the
document. The Clerk then informed Ortega that he could resend the document and the Court
would consider it. (August 2, 2016 letter from Clerk, ECF # 8). Nothing further has been filed.
Given the lack of merit of any of Ortega’s claims, there is no reason to believe that any traverse
would change the outcome of this case.
A. No Evidentiary Hearing is Required
I will not hold an evidentiary hearing on this matter. “A petitioner is entitled
to an evidentiary hearing on a section 2255 motion unless the motion and the files
and records of the case conclusively show that he is entitled to no relief.” AnjuloLopez v. United States, 541 F.3d 814, 817 (8th Cir. 2008) (internal quotation marks
omitted). “No hearing is required, however, where the claim is inadequate on its
face or if the record affirmatively refutes the factual assertions upon which it is
based.” Id. (internal quotation marks and citations omitted). The record here
conclusively refutes the claims, so I will not hold an evidentiary hearing.
B. Claims 1, 2 and 3 are Procedurally Barred
“A collateral challenge may not do service for an appeal.” United States v.
Frady, 456 U.S. 152, 165 (1982). “[N]ormally a collateral attack should not be
entertained if defendant failed, for no good reason, to use another available avenue
of relief.” Poor Thunder v. United States, 810 F.2d 817, 823 (8th Cir. 1987)
(internal citation omitted). Ortega did not raise Grounds 1, 2 and 3 on direct
appeal. If a claim could have been raised on direct appeal but was not, it cannot be
raised in a § 2255 motion unless the movant can show both (1) a “cause” that
excuses the default, and (2) “actual prejudice” resulting from the errors of which
he complains. See Ramey v. United States, 8 F.3d 1313, 1314 (8th Cir. 1993);
Mathews v. United States, 114 F.3d 112, 113 (8th Cir. 1997).2
In Ground 1 Ortega argues that he was taken advantage of by the informant
because of his drug addiction and alcoholism. He asserts that the informant
somehow entrapped him into committing a “larger felony.” Ortega asserts that he
failed to bring an entrapment affirmative defense during trial because he did not
recognize this defense until he was healthier and thinking more clearly. This
contention is not sufficient to show cause and prejudice. In any event, Ortega had
been released on bond for over a year before trial, and although he had some
technical bond violations, he was repeatedly tested for drugs and never tested
positive. Thus, he had many months of sobriety before trial, so he certainly should
have been thinking clearly by that time, and his claim that drug use impaired his
ability to raise an entrapment defense is refuted by the record.
Moreover, any claim of entrapment, or sentencing entrapment, to the extent
that may be what he is claiming, is also refuted by the record. The defense of
entrapment and the argument for sentencing entrapment both focus on the
A movant can also avoid procedural default by demonstrating actual innocence. Johnson v.
United States, 278 F.3d 839, 844 (8th Cir. 2002) (“In order to obtain collateral review of a
procedurally defaulted issue, a § 2255 movant must show either cause and actual prejudice, or
that he is actually innocent.”) (internal quotation marks and citations omitted). Actual innocence
is a strict standard that generally cannot be met “where the evidence is sufficient to support a
conviction on the charged offense.” Id. (internal quotation marks and citation omitted). Where,
as here, the Court of Appeals has found that the evidence was sufficient to support his
conviction, Ortega cannot claim actual innocence.
defendant’s predisposition – either predisposition to commit the crime or
predisposition to be involved in sales of large quantities of drugs. See e.g., United
States v. Searcy, 233 F.3d 1096 (8th Cir. 2000). Here the evidence showed that
Ortega was a willing participant in the conspiracy well before the informant
became involved. The government initially was investigating a co-defendant,
known as “Chinto,” who initially directed the informant to Ortega to obtain drugs.
On multiple occasions the informant observed additional quantities of cocaine at
Ortega’s residence beyond what the informant was purchasing. In recorded
conversations Ortega told the informant that the drugs he was selling to the
informant were part of a larger quantity that Ortega had. Additionally, Ortega was
assessed additional offense levels because he was an organizer or leader of the
conspiracy, because the evidence showed that, although there were others in the
conspiracy who were more culpable, he was the source of supply for multiple other
distributors in the St. Louis area. These facts refute any claim of entrapment.
Similarly, Ortega cannot avoid procedural default of Ground 2, which is his
claim that he was only responsible for a lower quantity of cocaine. The jury heard
all of the evidence and determined that more than five kilograms of cocaine was
reasonably foreseeable to Ortega. His motion argues that this was some kind of
“plain error” but he does not really attempt to show cause and prejudice for his
procedural default. The claim is without merit in any event, given the substantial
evidence and the jury’s verdict.
Ortega contends in Ground 3 that during the commission of the offense he
was high and intoxicated, and his drinking subsequently led to health problems.
The motion does not specifically present any reason for failure to raise the defense
of voluntary intoxication on direct appeal or at trial. Consequently, he fails to
show the necessary cause and prejudice required to consider a procedurally
For the above reasons, Ortega has not adequately alleged sufficient cause
and prejudice to overcome the procedural default of any of these three claims.
Grounds 1 through 3 will therefore be denied.
C. Ortega Did Not Receive Ineffective Assistance of Counsel
Ortega’s remaining claim is for ineffective assistance of trial counsel. The
Sixth Amendment establishes the right of the criminally accused to the effective
assistance of counsel. Strickland v. Washington, 466 U.S. 668, 686 (1984). To
state a claim for ineffective assistance of counsel, Ortega must prove two elements
of the claim. First, he “must show that counsel’s performance was deficient. This
requires showing that counsel made errors so serious that counsel was not
functioning as the counsel guaranteed the defendant by the Sixth Amendment.” Id.
at 687. In considering whether this showing has been accomplished, “judicial
scrutiny of counsel’s performance must be highly deferential.” Id. at 689. The
courts seek to “eliminate the distorting effects of hindsight” by examining
counsel’s performance from counsel’s perspective at the time of the alleged error.
Id. Second, Ortega “must show that the deficient performance prejudiced the
defense.” Id. at 687. This requires him to demonstrate “a reasonable probability
that, but for counsel’s unprofessional errors, the result of the proceeding would
have been different.” Id. at 694. The court need not address both components if
the movant makes an insufficient showing on one of the prongs. Engelen v. United
States, 68 F.3d 238, 241 (8th Cir. 1995). Under these standards, Ortega did not
receive ineffective assistance from his attorney.
Ortega first complains that his attorney violated his rights. However, he
does not specify how his rights were violated. This argument fails to show any
way that counsel’s performance was deficient, and so the court need not address it
further. Strickland, 466 U.S. at 687.
Ortega also complains that counsel failed to take into consideration his
mental and health conditions. His attorney did make arguments about his addiction
and his health at sentencing, and the health issues were a large part of the reason
that I sentenced Ortega below the 151 months that was the low end of the
sentencing guidelines. To the extent that Ortega is asserting that counsel should
have raised an involuntary intoxication defense, Ortega would have had to
convince the jury that during every instance of selling cocaine over a ten month
period he was unaware of what he was doing. Given that many of Ortega’s
telephone calls and recorded meetings were played at trial, the overwhelming
evidence shows Ortega was coherent and knew what he was doing. Consequently,
this would have been a meritless defense for counsel to put forward. To the extent
Ortega argues that his counsel was ineffective for failing to make meritless
arguments at trial, his claim fails as a matter of law. Rodriquez v. United States, 17
F.3d 225, 226 (8th Cir. 1994).
Ortega next argues that counsel was ineffective because there was a lack of
physical evidence. Ortega does not articulate, though, how a potential lack of
physical evidence correlates to his ineffective assistance of counsel claim, nor does
he make any specific allegations regarding counsel’s performance. As a result, he
fails to show that counsel’s performance was deficient or that counsel made errors
that violated his Sixth Amendment right. Strickland, 466 U.S. at 687.
Additionally, Ortega has already appealed the jury’s verdict based upon this
sufficiency of the evidence argument, which failed. Ortega, 750 F.3d at 1023–25.
Without showing counsel’s performance was deficient or showing actual
innocence, Ortega is thus procedurally barred from claiming there was a lack of
physical evidence. McCleskey v. Zant, 449 U.S. 467, 494 (1991).
Finally, Ortega argues that his counsel was ineffective because “counsel
never attempted to reach the truth.” Ortega again fails to identify precisely how
“counsel never attempted to reach the truth.” He does, however, admit in his
motion to selling cocaine. He requests that the court drop the conspiracy charge
and allow him to take the first offered plea agreement of three years. This offer to
accept a previously rejected plea offer is inconsistent with his claim that counsel
never attempted to reach the truth. Ortega has not demonstrated a reasonable
probability that, but for counsel’s unprofessional errors, he would not have been
found guilty or that counsel’s deficient performance prejudiced the defense.
Strickland, 466 U.S. at 687, 694.
For these reasons, Ground 4 will be denied.
D. I Will Not Issue a Certificate of Appealability
As Ortega has not made a substantial showing of the denial of a federal
constitutional right, this Court will not issue a certificate of appealability. See Cox
v. Norris, 133 F.3d 565, 569 (8th Cir. 1997) (citing Flieger v. Delo, 16 F.3d 878,
882-83 (8th Cir. 1994)) (substantial showing must be debatable among reasonable
jurists, reasonably subject to a different outcome on appeal or otherwise deserving
of further proceedings).
IT IS HEREBY ORDERED that Porfirio Ortega’s motion to vacate, set
aside or correct his sentence under 28 U.S.C. § 2255  is denied.
IT IS FURTHER ORDERED that this Court will not issue a certificate of
appealability, as Ortega has not made a substantial showing of the denial of a
federal constitutional right.
CATHERINE D. PERRY
UNITED STATES DISTRICT JUDGE
Dated this 27th day of December, 2016.
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