Ortiz v. United States of America

Filing 8

MEMORANDUM AND ORDER, denying 7 Motion for an indefinite Stay and the petition is denied as untimely. The case is dismissed and the Clerk is directed to enter judgment accordingly. Because the petitioner has not made a substantial showing of the d enial of a constitutional right, a Certificate of Appealability will not issue. The Court certifies pursuant to 28 USC sec. 1915(a)(3) that any appeal from this Order would not be taken in good faith and therefore in forma pauperis status is denied for the purpose of an appeal. (Ordered by Judge Brian M. Cogan on 1/24/2013) c/m with unpublished decisions by chambers. Fwd. for Judgment. (Galeano, Sonia)

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USDISTRICTCOUhTI

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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JAN25 2013

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BROOKLYN OFFIC"&
MEMORANDUM
DECISION AND ORDER

MICHAEL ORTIZ,
Petitioner,

12 Civ. 5236 (BMC)

-againstUNITED STATES OF AMERICA,
Respondent.

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COGAN, District Judge.
Petitioner prose commenced this proceeding for a writ of habeas corpus under 28 U.S.C
§2255 on October 15, 2012. Because his petition appeared nntime1y, he has been given an
opportunity to demonstrate grounds for equitable tolling. His submission fails to demonstrate
adequate grounds, and the petition is therefore dismissed as untimely.
The relevant dates from his criminal case are as follows. On Friday, April 13, 2007,
petitioner pled guilty to counts two and three of a six count indictment, with a jury scheduled to
be picked the following Monday. Petitioner was sentenced to, inter alia, 152 months in custody.

On February 20, 2009, the Second Circuit granted petitioner's appellate counsel's motion to
withdraw pursuant to Anders v. California, 386 U.S. 738, 87 S. Ct 1396 (1967), and dismissed
his appeal.
In this habeas corpus proceeding, petitioner argues that the Court should vacate his
sentence as to the second count and sentence him in accordance with a prior plea offer that he
had rejected, and that the Court should vacate his guilty plea to the third count because the
indictment was facially defective.

By Memorandum Decision and Order dated November 5, 2012 (the .. Decision"), this
Court, inter alia, ordered petitioner to show cause why his petition should not be denied as
untimely. The Decision noted that petitioner's conviction had become final on April16, 2009,
and this proceeding was not commenced until October 15, 2012, well beyond the one-year limit
prescribed by the Antiterrorism and Effective Death Penalty Act of 1996,28 U.S.C. §2255(1)(1)
("AEDPA"). The Decision observed that petitioner was clearly aware of the one-year limitation
when he filed his petition, as he had attempted to rely on Missouri v. Frye,_ U.S._, 132
S.Ct. 1399 (2012), as creating a ..new constitutional right" that was retroactively applicable in
order to make his petition timely. The Decision rejected that argument. The Court held that

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did not apply retroactively to cases on collateral review and that, in any event, Frye did not

apply to the facts of petitioner's case. The Decision did not reach the merits of petitioner's claim
concerning the facial invalidity of the third count because the petition appeared untimely.
Although the Decision noted that petitioner had not argued equitable tolling as an alternative,
thus suggesting that he had no grounds for equitable tolling, the Court nevertheless afforded
petitioner the opportunity to demonstrate that he had such grounds. 1
Petitioner now asserts that when he was transferred from his prior correctional institution
to his current institution, his "legal work" was not forwarded with him and may have been lost.
Petitioner has requested an indefinite stay of the proceedings until such time, if ever, as he can
find his "legal work." Alternatively, petitioner asserts the following grounds for equitable
tolling: (a) he received an 8th grade education in Puerto Rico, where the instruction was in

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After he filed the petition, petitioner was transferred to a different correctional facility. Petitioner failed to advise
the Court of his transfer and, thus, he did not receive the Decision. The Court, upon learning of the transfer
independently, re-sent him the Decision and afforded him additional time to respond.

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Spanish, and only began to learn English in the past 18 months 2 ; (b) his court-appointed attorney
on direct appeal, who, as the Decision notes, filed an Anders brief, never advised him of the
pendency or status of the appeal3, nor did the Clerk ever advise him of the Circuit's Mandate
granting the Anders motion and dismissing the appeal; (c) from May 2009 through March 2011,
petitioner was in a Special Management Unit Program at his facility which allowed him only one
hour per day outside of his cell, and only limited access to legal materials, which were all in
English; and (d) since learning of the issuance of the Mandate on direct appeal, he has exercised
diligence by attempting to learn English and obtain his G.E.D. while his custody continues.
As to petitioner's request for an indefinite stay pending receipt of his legal papers, he has
not demonstrated adequate grounds. The courts have repeatedly emphasized that equitable
tolling, the only issue that I am presently considering, is fact-driven, based on the circumstances
of each case. See Baldayague v. United States, 338 F.3d 145, 150 (2d Cir. 2003). I am not
suggesting that legal argument cannot be helpful in many cases, but petitioner's burden is to
demonstrate the factual circumstances that can warrant equitable tolling. Petitioner has offered
no explanation of how the loss of his "legal work"- which occurred years after petitioner's time
to bring this petition had expired - would demonstrate such circumstances, nor can the Court
conceive of a way in which it would. Every reason why petitioner might have been prevented
from timely filing his petition is and has been known to him, and, indeed, he has offered those
reasons in his alternative response to the Decision. Especially considering his pro se status, once
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This is not accurate. The record of the criminal case is consistent with my recollection that petitioner can speak,
although not write, a good amount of his English. When he pled guilty, his attorney felt he was able to proceed in
English, but the Government, in an abundance of caution, asked me to take the plea through a Spanish interpreter,
which I did.
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Despite petitioner's claim that his Circuit-appointed attorney never advised him that she was filing an Anders brief,
the Second Circuit docket reflects that she wrote him, in English and Spanish, that she was filing an Anders brief on
November IO, 2008, the same day she filed the brief. See United States v. Ortiz, 08-4028-cr (2d Cir.), at dkt. entry
II/I 0/2008.

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I am apprised of the facts that petitioner contends prevented him from timely filing, as I now
have been, I would undertake the necessary review of the case law in considering whether
petitioner had demonstrated adequate grounds for tolling.
I have done so, and conclude that equitable tolling is not available to petitioner. The
standard for equitable tolling is exacting. Petitioner has the burden of showing that he is entitled
to equitable tolling. See Pace v. DiGuglielmo, 544 U.S. 408, 418, 125 S. Ct. 1807, 1814 (2005);
Hizbullabankhamon v. Walker, 255 F.3d 65, 75 (2d Cir. 2001). This means he has to prove that
(1) extraordinary circumstances prevented the timely filing of a petition for a writ of habeas
corpus; and (2) he acted with reasonable diligence during the period he seeks to toll. See Smith
v. McGiimis, 208 F .3d 13, 17 (2d Cir. 2000). The first criteria requires him to show "a causal
relationship between the extraordinary circumstances on which his claim for equitable tolling
rests and the lateness of his filing, a demonstration that cannot be made if petitioner, acting with
reasonable diligence, could have filed on time notwithstanding the extraordinary circumstances."
Baldayague, 338 F.3d at 150 (quoting Hizbullabankhamon, 255 F.3d at 75 (2d Cir. 2001)). The
Second Circuit has "[a]s a general matter ... set a high bar to deem circumstances sufficiently
'extraordinary' to warrant equitable tolling." Dillon v. Conway, 642 F.3d 358, 363 (2d Cir.
2011 ). As to diligence, the degree of diligence required to satisfy this standard "is not 'extreme
diligence' or 'exceptional diligence,' it is reasonable diligence", which must be evaluated based
on the facts of his situation. Baldayague, 338 FJd at 153 (emphasis in original).
All of the circumstances which petitioner offers as "extraordinary" have been considered
and rejected by the courts- the fact that he is prose and unfamiliar with the law, see Smith, 208
F.3d at 18; Ayala v. Miller, No. 03-a-3289, 2004 WL 2126966, at *2 (E.D.N.Y. Sept. 24,
2004); his limited education, see Francis v. Miller, 198 F. Supp. 2d 232,235 (E.D.N.Y. 2002);

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his limited access to legal research materials, see Corrigan v. Barbery, 371 F. Supp. 2d 325, 330
(W.D.N. Y. 2005); his restricted confinement and transfer between facilities, see Lindo v.
Lefever, 193 F. Supp. 2d 659,663 (E.D.N.Y. 2002); and his conclusory claim that he was not
advised that the Second Circuit had issued its Mandate, cf. Thrower v. Laird, No. 06--cv--4864,
2006 WL 3735649, at *2 (S.D.N.Y. Dec. 14, 2006) (report and recommendation) (collecting
cases where §2254 petitioners had not received final state court decision and equitable tolling
was deemed inappropriate).
Not only, as these cases show, are the reasons for equitable tolling that petitioner offers
ordinary rather than extraordinary, but the facts of petitioner's case show that equitable tolling
would be particularly inappropriate here.
First, despite petitioner's claim that the circumstances of his custody until March 2011
eliminated his ability to file his petition, he wrote to the Court in his criminal case twice, in June
and July of2010, well after the Circuit had issued its Mandate on February 20, 2009, requesting
an extension oftime to file his §2255 petition. See United States v. Ortiz, No. 06 cr 382
(E.D.N. Y.), dkt. nos. 128-132. 1bis Court denied his request pursuant to United States v. Leon,
203 F.3d 162 (2d Cir. 2000), and Green v. United States, 260 F.3d 78 (2d Cir. 2001), because he
had offered no grounds for habeas relief and thus there was no pending proceeding in which his
time could be extended. Moreover, in doing so, the Court advised him that he needed to submit
his habeas petition as soon as possible as his conviction had already been final for more than a
year, and he would need to rely on equitable tolling. These facts show that petitioner knew as of
the summer of 2010 that the Second Circuit had issued its Mandate and that his time to file his
§2255 petition was not only running, but had expired. Yet he did not file his petition until more
than two years later.

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These facts also show that petitioner was able, despite the conditions of his custody, to
make filings with the Court. His ability to make these filings dissipates most of his other
grounds for seeking equitable tolling because the claim he has ultimately raised in this
proceeding - that if his lawyer had more strenuously urged him to accept the first plea agreement
that he was offered, he would not have rejected it and felt compelled to accept the second, less
favorable plea agreement on the eve of trial - is so straightforward. Petitioner knew at the time
of his guilty plea that he was accepting a less favorable plea agreement than he had originally
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been offered, so all his petition needed to do, if he felt he had not had effective assistance of
counsel, was to file a petition that gave as many specifics of his conversations with his attorney
on the first plea agreement as he could. This did not require an extraordinary, indeed any,
amount of legal research; as noted above, equitable tolling turns far more on the facts known to
petitioner than on hornbook law.5
Finally, even assuming, despite the preceding paragraph, that petitioner's restricted
custody was an impediment to making court filings, and putting aside this Court's advice to him
in July 2010 that he must file as soon as possible because his one-year period had already
expired, petitioner's restricted custody, as noted above, ended in March 2011, and he did not file
this proceeding until October 15, 2012. Under the case law cited above, this additional 20-rnonth
delay does not reflect adequate diligence to warrant equitable tolling, nor do petitioner's other
circumstances excuse this lengthy delay. This is particularly true because in January 2011,
petitioner requested from the Clerk of this Court, and was sent, a copy of the docket sheet in his

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Petitioner actually moved to vacate his plea prior to sentencing on the ground that he did not understand the plea
agreement. This Court denied the motion based on his former attorney's affidavit of her discussion with him, the
plea transcript, and the conclusory nature of petitioner's assertion.

~I am, of course, asswning the truth of the non-conclusory facts offered in the petition and petitioner's response to
the Decision.

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criminal case, and thus had confirmation of all of the dates concerning the Mandate and this
Court's disposition of his requests for extension the preceding summer.
Petitioner therefore has failed to demonstrate grounds for equitable tolling.
CONCLUSION
Accordingly, the motion for an indefinite stay [71 is denied and the petition is denied as
untimely. The case is dismissed and the Clerk is directed to enter judgment accordingly.
Because the petitioner has not made a substantial showing of the denial of a constitutional right,
a certificate of appealability will not issue. See 28 U .S.C. § 2253. The Court certifies pursuant
to 28 U.S.C. § 1915(a)(3) that any appeal from this Order would not be taken in good faith and
therefore in forma pauperis status is denied for the purpose of an appeal. Coppedge v. United
States, 369 U.S. 438, 82 S. Ct. 917 (1962).
SO ORDERED.

--...___________
I '-'WI:D.J.

Dated: Brooklyn, New York
January 24, 2013

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