Ortiz v. United States of America
Filing
21
MEMORANDUM & ORDER denying 1 Motion to Vacate/Set Aside/Correct Sentence (2255), 7 Motion to Vacate. For the foregoing reasons, Mr. Ortiz's § 2255 motion [dkt. no. 1 in 16-CV-4656; dkt. no. 65 in 98-CR-1099] is DENIED. The Clerk of the Court shall (1) mark action 16-CV-4656 closed and all pending motions denied as moot and (2) close the open motion in 98-CR-1099. SO ORDERED. (Signed by Judge Loretta A. Preska on 9/24/2021) (va)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
UNITED STATES OF AMERICA,
No. 98-CR-1099 (LAP)
-against-
No. 16-CV-4656 (LAP)
ANTHONY ORTIZ,
MEMORANDUM & ORDER
Defendant.
LORETTA A. PRESKA, Senior United States District Judge:
Before the Court is Defendant Anthony Ortiz’s motion to
vacate, set aside, or correct his sentence pursuant to 28 U.S.C.
§ 2255.
(See dkt. nos. 1, 7 in 16-CV-4656; see also dkt. no. 65
in 98-CR-1099.)
The Government opposed the motion, (see dkt.
no. 8 in 16-CV-4656), and Mr. Ortiz replied, (see dkt. no. 9 in
16-CV-4656).
For the reasons below, Mr. Ortiz’s motion is
DENIED.
I.
Facts
The Court assumes the parties’ familiarity with the facts
of the case, and it will summarize only the facts relevant to
the instant motion here.1
On March 1, 1999, a jury convicted Mr. Ortiz of one count
of distributing and possessing with intent to distribute crack
cocaine, in violation of 21 U.S.C. §§ 812, 841(a)(1), and
841(b)(1)(C), and 18 U.S.C. § 2.
In his Presentence
Unless otherwise specified, the facts are drawn from the
parties’ submissions and are undisputed.
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Investigation Report, the Probation Office found Mr. Ortiz to be
a “career offender” under U.S.S.G. § 4B1.1 because he had prior
New York felony convictions for (1) robbery in the first degree,
(2) criminal sale of narcotics, and (3) attempted robbery in the
third degree.
As a result, the Guidelines prescribed a range of 262-327
months based on a total offense level of 34 and a criminal
history category of VI.
Judge Michael B. Mukasey sentenced Mr.
Ortiz to 262 months imprisonment pursuant to the mandatory
Guidelines.2
Mr. Ortiz’s conviction and sentenced were affirmed
by the Court of Appeals, and the Supreme Court denied
certiorari.
In November 2001, Mr. Ortiz filed a pro se § 2255 petition
asserting a variety of claims (but not the claim he now raises).
On October 30, 2002, Judge Mukasey denied the petition, and the
Court of Appeals subsequently dismissed Mr. Ortiz’s motion for
lack of a certificate of appealability.
On June 17, 2016, Mr. Ortiz filed a placeholder § 2255
petition in this Court, asserting a claim based on Johnson v.
United States, 576 U.S. 591 (2015).
Mr. Ortiz also sought leave
from the Court of Appeals to file a successive § 2255 petition.
The Guidelines were later rendered advisory following the
Supreme Court’s decision in United States v. Booker, 543 U.S.
220, 245 (2005).
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The Court of Appeals granted Mr. Ortiz such leave on August 24,
2016.
Thereafter, through counsel, Mr. Ortiz supplemented his
petition, which the Government opposed.
II.
Legal Standards
a. 28 U.S.C. § 2255
28 U.S.C. § 2255 permits a federal prisoner to challenge
his sentence on the ground that it “was imposed in violation of
the Constitution or laws of the United States.”
§ 2255(a).
28 U.S.C.
However, § 2255 guarantees only one bite at the
habeas apple: a petitioner may only make “[a] second or
successive motion” if it is “certified . . . by a panel of the
appropriate court of appeals to contain . . . a new rule of
constitutional law, made retroactive to cases on collateral
review by the Supreme Court, that was previously unavailable.”3
Moreover, a one-year limitations period applies to § 2255
motions, which runs from “the latest of,” inter alia, (1) “the
date on which the judgment of conviction becomes final” or (2)
“the date on which the right asserted was initially recognized
by the Supreme Court, if that right has been newly recognized
28 U.S.C. § 2255(h)(2). “New” rules can be divided into
two categories: (1) substantive rules and (2) procedural rules.
New substantive rules “apply retroactively on federal collateral
review,” but “new procedural rules”--even “watershed” ones--“do
not.” Edwards v. Vannoy, 141 S. Ct. 1547, 1562 (2021). “A rule
is substantive rather than procedural if it alters the range of
conduct or the class of persons that the law punishes.” Welch
v. United States, 136 S. Ct. 1257, 1264–65 (2016).
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. . . and made retroactively applicable to cases on collateral
review.”
Id. § 2255(f)(3).
b. The Career Offender Guidelines
The Guidelines provide that “[a] defendant is a career
offender if (1) the defendant was at least eighteen years old at
the time the defendant committed the instant offense of
conviction; (2) the instant offense of conviction is a felony
that is either a crime of violence or a controlled substance
offense; and (3) the defendant has at least two prior felony
convictions of either a crime of violence or a controlled
substance offense.”
U.S.S.G. § 4B1.1(a).
At the time of Mr.
Ortiz’s sentencing, “crime of violence” was defined as follows:
[A]ny offense under federal or state law, punishable
by imprisonment for a term exceeding one year, that
. . . (1) has as an element the use, attempted use, or
threatened use of physical force against the person of
another, or (2) is burglary of a dwelling, arson, or
extortion, involves use of explosives, or otherwise
involves conduct that presents a serious risk of
physical injury to another.
U.S.S.G. § 4B1.2(a) (2016).
Subsection (1) was commonly termed
the “force clause” or the “elements clause,” whereas subsection
(2) was colloquially named the “residual clause.”
In 2015, the Supreme Court decided Johnson, 576 U.S. at
593, which considered the Armed Career Criminal Act’s (“ACCA”)
definition of “violent felony.”
ACCA contained three clauses
defining “violent felony,” including, most relevantly, a
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“residual” clause, which encompassed any crime that “otherwise
involves conduct that presents a serious potential risk of
physical injury to another.”
18 U.S.C. § 924(e)(2)(B)(ii).
The
Supreme Court ultimately held that ACCA’s residual clause was
unconstitutionally vague and, therefore, “that imposing an
increased sentence” based on that clause “violate[d] the
Constitution’s guarantee of due process.”
606.
Johnson, 576 U.S. at
Following that decision, the Sentencing Commission amended
U.S.S.G. § 4B1.2(a) to remove its residual clause, which had
mirrored ACCA’s.
See U.S.S.G. App. C, amend. 798 (Aug. 1,
2016).
III. Discussion
The Court first considers whether Mr. Ortiz is eligible for
relief under 28 U.S.C. § 2255 before considering the merits of
his petition.
a. Timeliness
Mr. Ortiz filed his § 2255 petition on June 17, 2016, less
than one year after the Supreme Court decided Johnson.
dkt. no. 1 in 16-CV-4656.)
(See
On August 24, 2016, the Court of
Appeals granted Mr. Ortiz’s motion for leave to file a
successive § 2255 petition premised on Johnson.
in 16-CV-4656.)
(See dkt. no. 6
And the Supreme Court has since held that
Johnson announced a new substantive rule of constitutional law
that is retroactively applicable to “cases on collateral
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review.”
Welch, 136 S. Ct. at 1265.
Notwithstanding those
facts, however, Mr. Ortiz’s motion is untimely.
As explained above, Johnson, 576 U.S. at 606, found ACCA’s
residual clause to be unconstitutionally vague.
But, as the
Court of Appeals has explained, Johnson “did not recognize a
constitutional right not to be sentenced under the residual
clause of the pre-Booker Career Offender Guideline.”
Nunez v.
United States, 954 F.3d 465, 471 (2d Cir.), cert. denied, 141 S.
Ct. 941 (2020).
In other words, no Supreme Court “decision
newly announced and now made retroactive excuses [Mr. Ortiz]
from meeting the one-year time limitation set out in 28 U.S.C.
§ 2255(f).”
Collier v. United States, 989 F.3d 212, 215 (2d
Cir. 2021).
“[A]s a result,” Mr. Ortiz’s petition--which was
“filed within a year of Johnson” but some fifteen-plus years
after his conviction became final4--“is not timely under
§ 2255(f)(3).”
Bryant v. United States, 811 F. App’x 712, 713
(2d Cir.) (summary order), cert. denied, 141 S. Ct. 606 (2020).
b. The Merits
Even if Mr. Ortiz’s motion was timely, his petition would
still fail.
Mr. Ortiz asserts that his sentence was “unlawful
following Johnson” because his “sentencing range was increased
Mr. Ortiz’s direct appeal was rejected on June 14, 2000,
see United States v. Ortiz, 2000 WL 779764, at *2 (2d Cir. June
14, 2000), and the Supreme Court denied certiorari on October
16, 2000, see Ortiz v. United States, 531 U.S. 952 (2000).
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based on an unconstitutionally vague Guideline provision.”
(Dkt. no. 7 at 3.)
Specifically, Mr. Ortiz argues that (1)
Johnson established that the residual clause of the Career
Offender Guideline’s definition of “crime of violence” was
unconstitutionally vague, (see id. at 8-9), and (2) his sentence
cannot stand because his convictions for robbery in the first
degree and attempted robbery in the third degree qualified as
crimes of violence only under the now-infirm residual clause,
(see id. at 16-17).
The Court need not resolve whether Mr.
Ortiz’s sentence is unlawful based on Johnson, however, because
both of Mr. Ortiz’s prior robbery convictions are crimes of
violence under U.S.S.G. § 4B1.2(a)’s force clause.
Under New York law, robbery is defined as follows:
A person forcibly steals property and commits robbery
when, in the course of committing a larceny, he uses
or threatens the immediate use of physical force upon
another person for the purpose of:
1. Preventing or overcoming resistance to the taking
of the property or to the retention thereof
immediately after the taking; or
2. Compelling the owner of such property or another
person to deliver up the property or to engage in
other conduct which aids in the commission of the
larceny.
N.Y. PENAL LAW § 160.00.
Considering that text, the Court of
Appeals has held “that New York robbery in the third degree”--an
indisputably less serious offense than robbery in the first
degree--“is categorically a crime of violence under the force
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clause of U.S.S.G. § 4B1.2(a)(1).”
F.3d 231, 240 (2d Cir. 2019).
United States v. Moore, 916
The fact that Mr. Ortiz’s
“conviction is for attempted robbery” in the third degree,
“rather than completed robbery,” does not counsel a different
result here.5
Moreover, New York’s “definition of robbery--
forcible stealing--is common to all degrees of robbery.”
Pereira-Gomez, 903 F.3d at 166.
It follows, therefore, that
Moore applies with greater force to Mr. Ortiz’s conviction for
robbery in the first degree, which requires proof of an
additional element involving serious physical injury or a
weapon.
See N.Y. PENAL LAW § 160.15.
In other words, Mr. Ortiz’s robbery convictions are crimes
of violence without any reference to U.S.S.G. § 4B1.2(a)(2).
In
that sense, Mr. Ortiz would still have been subject to the
Career Offender Guideline even if Johnson rendered U.S.S.G.
§ 4B1.2(a)’s residual clause unconstitutionally vague.
Because
both of Mr. Ortiz’s robbery convictions constitute crimes of
United States v. Johnson, 763 F. App’x 113, 116 (2d Cir.
2019) (summary order) (holding that attempted second degree
robbery under New York law constituted a crime of violence under
U.S.S.G. § 4B1.2(a)(1)); see also United States v. PereiraGomez, 903 F.3d 155, 166 (2d Cir. 2018) (holding that attempted
robbery qualified as a crime of violence under the “force
clause” of application note 1(B)(iii) to Section 2L1.2 of the
2014 Guidelines because, “[r]egarding attempt,” the New York
Court of Appeals “requires that the action taken by an accused
be so near to its accomplishment that in all reasonable
probability the crime itself would have been committed, but for
timely interference” (quotation marks omitted)).
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violence under U.S.S.G. § 4B1.2(a)(1), he is not entitled to the
relief that he seeks.
IV.
Conclusion
For the foregoing reasons, Mr. Ortiz’s § 2255 motion [dkt.
no. 1 in 16-CV-4656; dkt. no. 65 in 98-CR-1099] is DENIED.
The
Clerk of the Court shall (1) mark action 16-CV-4656 closed and
all pending motions denied as moot and (2) close the open motion
in 98-CR-1099.
SO ORDERED.
Dated:
September 24, 2021
New York, New York
__________________________________
LORETTA A. PRESKA
Senior United States District Judge
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