Ortiz v. NH State Prison, Warden

Filing 5

ORDER granting leave for Petitioner, Mr. Ortiz to file in this court: A)An amended § 2254 petition or B) a Motion to Stay re: 1 Petition for Writ of Habeas Corpus Failure to Comply within thirty days of the date of this order may result in a recommendation that Petition be dismissed. So Ordered by Magistrate Judge Landya B. McCafferty. Notice of Compliance deadline set for 3/4/13.(cmp)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE

Hector Ortiz
v.

Civil No. 12-cv-372-JL

Richard M. Gerry, Warden,
New Hampshire State Prison

O R D E R
Before the court is pro se petitioner Hector Ortiz’s
petition for a writ of habeas corpus (doc. no. 1), filed
pursuant to 28 U.S.C. § 2254.

The matter is before the court

for preliminary review to determine whether or not the claims
raised in the petition are facially valid and may proceed.

See

Rule 4 of the Rules Governing Section 2254 cases in the United
States District Courts (“§ 2254 Rules”).
§ 2254 Rule 4 Standard
Pursuant to § 2254 Rule 4, a judge is required to promptly
examine any petition for habeas relief, and 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 the petition.”

Id.

In undertaking this

review, the court decides whether the petition contains
sufficient factual matter, accepted as true, to state a claim to

relief that is plausible on its face and cognizable in a federal
habeas action.

See McFarland v. Scott, 512 U.S. 849, 856 (1994)

(“Federal courts are authorized to dismiss summarily any habeas
petition that appears legally insufficient on its face.” (citing
§ 2254 Rule 4)).
The court undertakes this preliminary review of the
petition with due consideration for the petitioner’s pro se
status.

“As a general rule, . . . we hold pro se pleadings to

less demanding standards than those drafted by lawyers and
endeavor, within reasonable limits, to guard against the loss of
pro se claims due to technical defects.”

Dutil v. Murphy, 550

F.3d 154, 158 (1st Cir. 2008).
Background
In 2010, a jury in Hillsborough County Superior Court
convicted Ortiz of two counts of aggravated felonious sexual
assault, one count of felonious sexual assault, and one count of
endangering the welfare of a child.

See N.H. Rev. Stat. Ann.

(“RSA”) §§ 632-A:2, 632-A:3, and 639:3.

The New Hampshire

Supreme Court (“NHSC”) affirmed Ortiz’s conviction on October
27, 2011.

See State v. Ortiz, 162 N.H. 585, 600, 34 A.3d 599,

612 (2011).

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The § 2254 petition (doc. no. 1) filed in this court
challenges Ortiz’s convictions and sentence on the following
bases1:
1.
Ortiz’s conviction was obtained in violation of his
Fourteenth Amendment right to due process, because it was
based on the twenty-three year old prosecutrix’s “repressed
memory” that had been tainted by interview techniques
employed upon her.
2.
Ortiz’s conviction was obtained in violation of his
Sixth Amendment right to compulsory process, in that the
trial court denied Ortiz an opportunity to offer expert
testimony to rebut the testimony of a “doctor” as to the
reliability of the victim’s testimony.
3.
The Superior Court’s procedure of sentencing Ortiz,
then calling him back for resentencing after the case was
closed, violated Ortiz’s right to due process under the
Fourteenth Amendment.
4.
Ortiz’s conviction was obtained in violation of his:
(a) Fourteenth Amendment right to due process; and (b)
Sixth Amendment right to a fair trial, because the trial
judge was biased.
5.
Ortiz’s conviction was obtained in violation of his:
(a) Fourteenth Amendment right to due process; and (b)
Sixth Amendment right to a fair trial before an impartial
jury, because the trial judge personally selected the jury
foreperson knowing that juror from prior service on another
case.
6.
Ortiz’s trial counsel provided ineffective assistance
of counsel, in violation of Ortiz’s Sixth Amendment rights,
in that: (a) counsel failed to prepare a proper defense;
and (b) counsel failed to obtain an expert to rebut the
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Ortiz asserts, without explanation, that his conviction was
obtained in violation of his First, Fourth, and Fifth Amendment
rights, but he has failed to allege any facts to support such
claims. Accordingly, the court has construed those references
to be surplusage. Ortiz retains the right to move to amend the
petition to add facts to support such claims for relief.
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testimony of a “doctor” as to the reliability of the
victim’s testimony.
7.
Ortiz’s counsel provided ineffective assistance in
Ortiz’s direct appeal by failing to raise the proper issues
before the NHSC.
Discussion
To be eligible for habeas relief, Ortiz must show that he
has either exhausted all of his state court remedies as to the
claims raised in his federal habeas petition, or is excused from
exhausting those remedies because of an absence of available or
effective state corrective processes.

See 28 U.S.C. § 2254(a) &

(b); Coningford v. Rhode Island, 640 F.3d 478, 482 (1st Cir.
2011).
A claim for habeas corpus relief has been exhausted
where the claim has been fairly presented to the state
courts. Fair presentation means that the petitioner
must show that he tendered his federal claim in such a
way as to make it probable that a reasonable jurist
would have been alerted to the existence of the
federal question.
Dutil, 550 F.3d at 158 (citations and quotation marks omitted).
A petitioner’s remedies in New Hampshire are exhausted when the
NHSC has had an opportunity to rule on the federal claims.

See

id. at 157.
Ortiz has demonstrated that he exhausted his state court
remedies as to Claim 3 above through his direct appeal of his
conviction.

The sparse record before this court at this time,

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however, indicates that Ortiz did not challenge his conviction
in the state courts based on any of the other federal claims
identified in the § 2254 petition.

While a fuller record,

including the notice of appeal and briefs filed in Ortiz’s
direct appeal in the NHSC, could yet demonstrate that other
claims have been exhausted in the state courts, Ortiz has thus
far failed to so demonstrate.
A “mixed” petition, including both exhausted and
unexhausted claims, such as Ortiz’s appears to be, is subject to
dismissal.

Pliler v. Ford, 542 U.S. 225, 233 (2004).

If the

petitioner seeks to avoid dismissal, he may move this court to
stay the habeas action to allow him an opportunity to return to
the state courts to exhaust his state court remedies for each
federal claim in the petition.
A petitioner in New Hampshire may exhaust his state court
remedies, for example, by litigating a motion for a new trial or
a petition for a writ of habeas corpus in the state courts,
asserting the federal constitutional claims as the bases for
obtaining relief, and presenting his federal claims to the NHSC
and obtaining a final decision in an appeal of any adverse
superior court ruling on those claims.

Alternatively, this

court may grant a petitioner leave to file an amended petition
that omits the unexhausted claims.

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In choosing to forego

unexhausted claims, however, the petitioner risks losing the
chance to file those claims in federal court, due to the
prohibition against second or successive habeas petitions under
28 U.S.C. § 2244(b).
Ortiz has failed to demonstrate that he has exhausted his
state court remedies as to Claims 1-2 and 4-7 above.

In order

to proceed in this matter at this time, therefore, Ortiz must
either: amend his petition to demonstrate that all of his claims
have been exhausted in the state courts; seek a stay in this
matter to enable him to return to the state courts to exhaust
his unexhausted claims; or, alternatively, move to amend his
petition to drop his unexhausted claims and proceed only on his
exhausted claims.
Conclusion
1.

Within thirty days of the date of this order, Ortiz is

granted leave to file in this court:
A.

An amended § 2254 petition, including as exhibits

the notice of appeal and briefs from the NHSC record in
Ortiz’s direct appeal of his conviction (NHSC Case No.
2010-269), if those exhibits show that Ortiz has already
presented to the NHSC any of the federal claims numbered as
Claims 1-2 and 4-7 above, and/or any other documents from

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the NHSC docket that demonstrate exhaustion of state court
remedies; and
B.

A motion to stay this action, if Ortiz intends to

litigate, during the pendency of the stay in this case, a
proceeding in the state courts to exhaust his state court
remedies on Claims 1-2 and 4-7 above; or a motion to amend
the petition to drop Claims 1-2 and/or 4-7 above, if Ortiz
does not intend to return to the state courts to exhaust
his state court remedies on those claims.
2.

Should Ortiz fail to file an amended petition, fail to

move to stay the petition, or fail to move to drop the
unexhausted claims, this court may recommend that the § 2254
petition be dismissed, without prejudice, for failure to
demonstrate exhaustion.

See 28 U.S.C. § 2254(b).

SO ORDERED.

__________________________
Landya McCafferty
United States Magistrate Judge
January 31, 2013
cc:

Hector Ortiz, pro se

LBM:nmd

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