Ortiz-Hernandez v. USA

Filing 7

MEMORANDUM OPINION AND ORDER by Chief District Judge William P. Johnson re 1 MOTION to Vacate. IT IS ORDERED that this civil habeas case is DISMISSED without prejudice. (cmm)

Case 1:21-cv-01210-WJ-JHR Document 7 Filed 07/13/22 Page 1 of 3

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
______________________
VICTOR ORTIZ-HERNANDEZ,
Petitioner,
v.

No. 21-cv-1210 WJ-JHR
No. 17-cr-3420 WJ-JHR

UNITED STATES OF AMERICA,
Respondent.
MEMORANDUM OPINION AND ORDER
THIS MATTER is before the Court following Petitioner’s failure to file a substantive 28
U.S.C. § 2255 claim. Petitioner is incarcerated and proceeding pro se. In 2019, he pled guilty to
possession with intent to distribute 500 grams or more of methamphetamine; conspiracy; unlawful
use of a communication facility; and reentry of a removed alien. Petitioner entered the plea in two
related cases, 17-cr-3420 WJ and 17-cr-3422 WJ. The Court sentenced him to total term of 168
months imprisonment.

Judgment was entered in each case on September 13, 2019.

By a

consolidated mandate entered July 30, 2020, the Tenth Circuit affirmed the sentence in each case.
Petitioner did not seek further review with the United States Supreme Court (USSC).
Petitioner initiated this case on November 12, 2021 by filing a Motion Seeking Extension
of Time to File a Habeas Corpus [Claim Under] 28 U.S.C. § 2255 Due to Covid 19 (CV Doc. 1)
(Motion for Extension). Petitioner believes the one-year habeas limitations period expired on
December 7, 2021 and seeks an extension of that date based on COVID-19 lockdowns.
By a Memorandum Opinion and Order entered May 17, 2022, the Court reviewed the initial
filing pursuant to Habeas Rule 4 and determined any § 2255 claims are time-barred. See Day v.

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McDonough, 547 U.S. 198, 209 (2006) (As part of the initial review process, “district courts are
permitted … to consider, sua sponte, the timeliness of a … habeas petition”). The Court explained
that Petitioner’s criminal Judgments became final on October 28, 2020, when the 90-day USSC
certiorari period expired on direct appeal. See CV Doc. 6 (Screening Ruling); United States v.
Anthony, 25 F.4th 792, 800 (10th Cir. 2022) (for purposes of § 2255, “a judgment becomes final
when the defendant’s time to file a direct appeal expires”). The habeas limitation period expired
one year later on October 28, 2021. See 28 U.S.C. § 2255(f). The Court denied Petitioner’s
request for an extension, as his motion was filed after expiration of the limitation period.
However, the Court granted leave to file a § 2255 motion raising substantive claims and attempt to
show grounds for tolling. The Screening Ruling set forth the above timeline and the standards for
equitable and statutory tolling. Petitioner was warned that if he fails to timely comply, the Court
will dismiss this case without further notice.
The deadline to file a substantive § 2255 motion was June 16, 2022. Petitioner did not
comply or otherwise respond to the Screening Ruling. Accordingly, the Court will dismiss this
case without prejudice pursuant to Fed. R. Civ. P. 41(b) for “failure to prosecute [and] comply with
the … court’s orders.” Olsen v. Mapes, 333 F.3d 1199, 1204 n. 3 (10th Cir. 2003). To the extent
necessary, the Court will also deny a certificate of appealability (COA) under Habeas Rule 11, as
the failure to prosecute is not reasonably debatable. See DeAtley v. Williams, 782 Fed. App’x 736,
737 (10th Cir. 2019) (declining to issue a COA after district court dismissed habeas petition under
Rule 41). This does not count as Petitioner’s “first” § 2255 action for purposes of the limitations
on second/successive habeas claims. See 28 U.S.C. §§ 2244(a); 2255(h).
IT IS ORDERED that this civil habeas case is DISMISSED without prejudice; and the

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Court will enter a separate judgment closing the civil case.
SO ORDERED.

__________________________________________
WILLIAM P. JOHNSON
CHIEF UNITED STATES DISTRICT JUDGE

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