Ortega v. USA

Filing 1

Opinion and Order on Motion to Vacate, Set Aside or Correct Sentence (2255); Defendant's Motion to Vacate, Set Aside or Correct Sentence DENIED; by Honorable Michael W. Mosman, signed 2/19/09. (kw)

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UNITED STAT$S DISTRICT COURT DISTRICT OF OREGON

UNITED STATES OF AMERICA, Plaintiff,

No. CR 06-1 02-MO No. CV 08-70019-MO OPINION AND ORDER

v.

PABLO EMERANCO ORTEGA, a.k.a. Efraim Barraza, Defendant. MOSMAN,J., Defendant, appearing pro se, filed a Motion to Vacate (#45) his sentence pursuant to 28 U.S.C. § 2255. Mr. Ortega argues that: (1) he was denied a reasonable mental health evaluation; (2) he was denied effective assistance o f counsel; and (3) the fmding that he was a career offender for the purposes o f sentencing was in error. For the reasons set forth below, I DENY the motion.

BAckGROUND
On April 24, 2007, Mr. Ortega pled

g~ilty (#24) to a superseding indictment charging him
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with unarmed bank robbery under 18 U.S.C. ! l 1 3 ( a ) . As part o f the plea agreement, Mr. Ortega waived his right to appeal or collaterally a t t a i his conviction or sentence under 28 U.S.C. § 2255, except for claims regarding ineffective assistance o f counsel. (Plea Agreement (#26) ~ 10.)
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PAGE 1 - OPINION AND ORDER

At At sentencing, this court found that Mr. Ortega's previous Washington State conviction for Intimidating a P u b l i c Servant was a crim~ o f violence. (P1.'s Resp. (#50) Ex. B a t 15.) A s a result, Mr. Ortega w a s sentenced as a Careen Offender. (Id.) O n September 4 , 2 0 0 7 , Mr. Ortega was sentenced to a 135-month t e n n o f imprisonment. Mr. Ortega appealed the finding that h i s previous conviction for Intimidating a Public Servant w a s a crime o f violence, making hislstatus a Career Offender. (Defo's Mot. to Vacate (#45) Ex. C.) T h e N i n t h Circuit dismissed rtfr. Ortega's appeal o n March 17, 2008, holding that t h e a p p e a l w a i v e r w a s v a l i d . ( p l . ' s R e s p . ( # 5 0 ) Ex. A . ) M r . O r t e g a f i l e d t h e i n s t a n t m o t i o n o n J u l y 3 0 , 2008. DISCUSSION

A.

Mental Health Evaluation

Mr. Ortega first argues that h e was denied a reliable mental health evaluation. After h e
w a s arrested, b o o k e d , a n d h o u s e d a t I n v e r n e s s C o u n t y J a i l for u n a r m e d b a n k robbery, h e w a s evaluated and diagnosed with depression. (IDef.'s Mot. to Vacate (#45) Ex. A at 1.) Mr. Ortega m a i n t a i n s t h a t h e s u f f e r s from "Grave[s']
Di~ease"

a n d was a c t u a l l y "delusional" a t t h e t i m e h e

committed his offense. (Id.) P l a i n t i f f responds that Mr. Ortega did not raise this issue at either his sentencing o r o n direct appeal. (PIo's Re~. (#50) 2.) T h e N i n t h C i r c u i t h a s "consistently l l e l d t h a t a § 2255 p e t i t i o n e r c a n n o t c h a l l e n g e n o n c o n s t i t u t i o n a l s e n t e n c i n g errors i f s u c h e r r o r s w e r e n o t c h a l l e n g e d i n a n earlier proceeding."

United States v. McMullen, 98 F .3d 1155, 1157 (9th Cir. 1996) (citing United States v.
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Schlesinger, 49 F.3d 483, 485 (9th Cir.

199~».
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P e t i t i o n e r s w a i v e t h e i r r i g h t to o b j e c t i n

collateral p r o c e e d i n g s i f t h e y d i d n o t r a i s e a p r o p e r objection t o t h e district c o u r t o r o n direct
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P A G E 2 - OPINION AND O R D E R

appeal. appeal. Id. Mr. Ortega does not cite any supporting case law, o r rationale, w h y a reliable mental health evaluation is a constitutional right thalt was violated b y the government. N o r does Mr. Ortega challenge the government's contentiOiIl that h e failed to raise this issue b e f o r e t h e district court o r o n direct appeal. Therefore, I decline to vacate Mr. Ortega's sentence o n this basis.

B.

Ineffective Assistance o f Counsel

M r . O r t e g a f u r t h e r a r g u e s t h a t h e w a ~ d e n i e d e f f e c t i v e a s s i s t a n c e o f counseL M r . O r t e g a c o n t e n d s t h a t h i s c o u n s e l w a s a w a r e o f h i s m e n t a l disorder, b u t d i d n o t o b t a i n i n f o n n a t i o n o r seek to have his mental health evaluated. (Def.'s Mot. to Vacate (#45) Ex. B a t 1-2.) Counsel is o n l y required to provide "reasonably effective assistance." Strickland v.

Washington, 466 U.S. 6 6 8 , 6 8 7 (1984). To demonstrate ineffective assistance o f counsel, a
p l a i n t i f f must s h o w b o t h that counsel's perfOirmance was deficient a n d that the deficient p e r f o n n a n c e resulted i n prejudice. Id. PreJudice exists where there i s a "reasonable probability that, b u t for counsel's unprofessional errors, the result o f the proceeding would h a v e b e e n different." Id. at 694. T h e standard b y whicJt a court reviews counsel's p e r f o n n a n c e is highly d e f e r e n t i a l , a n d t h e r e is a p r e s u m p t i o n t h a t c o u n s e l r e n d e r e d a d e q u a t e a s s i s t a n c e f a l l i n g w i t h i n t h e range o f acceptable professional judgment. United States v. Palomba, 31 F.3d 1456, 1460 ( 9 t h C i r . 1994). H e r e , as t h e g o v e r n m e n t n o t e s , M r . O r t e g a d o e s n o t p r o v i d e a n y a c t u a l e v i d e n c e t h a t h e previously suffered from o r w a s treated for <lJraves' disease, despite his regular contact with t h e
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c r i m i n a l j u s t i c e s y s t e m . Mr. O r t e g a a l s o u n e r w e n t a m e n t a l h e a l t h e v a l u a t i o n a f t e r h i s a r r e s t i n
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t h i s c a s e , a n d w a s d i a g n o s e d w i t h d e p r e s s i o . T h i s m e a n s t h a t Mr. O r t e g a ' s c o u n s e l w o u l d n o t

P A G E 3 - OPINION A N D O R D E R

have had infonnation in the record to inform him o f Mr. Ortega's mental state, beyond the noted have depression. Mr. Ortega also does not offer any evidence, beyond his opinion, that suggests his counsel ignored his mental state. ThereforeJ there is no evidence before the court that counsel's
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perfonnance was deficient. Further, Mr. Ortega cannot establishlthat but for his counsel's alleged deficiency, he would have been diagnosed with Graves' disease, leading to a different result than his conviction and sentencing. There is no evidence that Mr. Ortega has ever been diagnosed with anything but depression. Thus, even i f h i s counsel had r~ommended that he undergo a mental health evaluation, there is no indication that he wo~ld be diagnosed with Graves' disease. Even i f Mr. Ortega was diagnosed with Graves' disease, it would not have affected his conviction. There is no evidence i n the record that Mr. Ortega was delusional from Graves' disease. Without evidence that he was delU$ional, Mr. Ortega has not established there was a reasonable probability that his conviction would have been different i f h i s attorney had known o f the Graves' disease diagnosis. Moreover, there is no reasonable probability that the diagnosis would have affected his sentencing, his co~sel presented mitigating evidence that Mr. Ortega suffered from depression. (pl.'s Resp. (#50)IEx. B at I5.) A n additional mental health issue would have had little incremental effect on ¥ r . Ortega's already accounted for mental state. Therefore, Mr. Ortega has not established the second prong that his counsel's alleged deficiency has resulted i n prejudice.
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Career Offender S t a t u s

Mr. Ortega argues that he should notlhave been sentenced with a career offender enhancement based on his prior Washingto I state conviction for Intimidating a Public Servant. PAGE 4 - OPINION AND ORDER

(Def.'s (Def.'s Mot. to V acat e (#45) Ex. C a t 1-2.) Mr. Ortega raised this i s s u e directly o n appeal t o t h e N i n t h Circuit. (Id. a t 7.) T h e N i n t h C i r c u i t dismissed Mr. Ortega's appeal o n M a r c h 17, 2008.
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( P l . ' s R e s p . (#50) E x . A . ) B e c a u s e t h e r i g h t ~ o a p p e a l t h i s i s s u e w a s w a i v e d , t h e N i n t h C i r c u i t sustained t h e w a i v e r o n d i r e c t appeal. (Id.) rI'herefore, Mr. Ortega's m o t i o n i s d e n i e d w i t h r e s p e c t t o t h i s claim.

CONCLUSION
F o r t h e foregoing reasons, defendant;s m o t i o n to v a c a t e o r s e t aside h i s s e n t e n c e u n d e r 28 U . S . C . § 2255 is D E N I E D . I T IS S O O R D E R E D . D A T E D this

~ d a y o f F e b r u a r y , 2009.
M I C H A E L W. M O S United States District C o u r t

P A G E 5 - OPINION A N D O R D E R