Ortiz-Figueroa v. USA
Filing
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OPINION AND ORDER DENYING 1 , 4 MOTION to Vacate, Set Aside or Correct Sentence (2255) (Criminal Number 95-29) filed by Edwin Ortiz-Figueroa. Pursuant to Rule 9 of the Rules Governing § 2255 Proceedings, summary dismissal is in order because Ortiz must obtain an order from the court of appeals before we can consider a second petition under § 2255. Judgment to be entered accordingly. Signed by Judge Jose A. Fuste on 01/08.(mrj)
UNITED STATES DISTRICT COURT
DISTRICT OF PUERTO RICO
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EDWIN ORTIZ-FIGUEROA,
Petitioner,
Civil No. 13-1154 (JAF)
v.
(Crim. No. 95-cr-29-36)
UNITED STATES OF AMERICA,
Respondent.
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OPINION AND ORDER
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Petitioner Edwin Ortiz-Figueroa (“Ortiz”) comes before the court with a petition
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under 28 U.S.C. § 2255 to vacate, set aside, or correct the sentence we imposed. (Docket
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No. 1.) The United States opposes his motion. (Docket No. 3.) This is the second time
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Ortiz has petitioned us for relief under Section 2255. (Crim. No. 95-cr-29, Docket
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No. 2893.) Because Ortiz failed to obtain certification from the First Circuit to file a
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successive petition, we lack jurisdiction and must dismiss the motion.
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I.
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Background
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Ortiz, along with codefendants, was tried before a jury beginning on
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November 17, 1997. (Crim. No. 95-cr-29, Docket No. 1917.) He was charged with
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conspiracy to possess with intent to distribute cocaine base, cocaine, and heroin in
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violation of 21 U.S.C. §§ 841, 846; using and carrying a firearm during and in relation to
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a drug conspiracy in violation of 18 U.S.C. § 924(c); conspiracy to kill while engaged in
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a drug conspiracy in violation of 21 U.S.C. §§ 846, 848(e)(1)(A); and intentionally
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killing or attempting to kill while engaged in a drug conspiracy in violation of 18 U.S.C.
Civil No. 13-1154 (JAF)
-2-
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§ 2 and 21 U.S.C. §§ 846, 848(e)(1)(A).
He was also charged with liability for
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conspiracy under Pinkerton v. United States, 328 U.S. 640 (1946). U.S. v. Collazo-
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Aponte, 216 F.3d 163, 174 (2000). On February 16, 1998, the jury returned guilty
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verdicts as to all defendants on all counts. We sentenced Ortiz to concurrent terms of life
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imprisonment on multiple counts and to a consecutive ten-year term on Count 65, the
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firearms charge. Id.
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On July 2, 1998, Ortiz filed a notice of appeal. (Crim. No. 95-cr-29, Docket
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No. 2340.) On June 27, 2000, the First Circuit affirmed Ortiz’s conviction and sentence.
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Collazo-Aponte, 216 F.3d at 207. On July 12, 2001, Ortiz motioned the court to vacate
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his sentence under 28 U.S.C. § 2255. (Crim. No. 95-cr-29, Docket No. 2893.) On
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November 25, 2003, we summarily dismissed his petition. (Crim. No. 95-cr-29, Docket
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No. 3275.) On February 28, 2008, Ortiz moved the court for retroactive application of
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the sentencing guidelines to his crack cocaine offense under 18 U.S.C. § 3582. (Crim.
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No. 95-cr-29, Docket No. 3197.) On October 28, 2008, we denied Ortiz’s motion for
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retroactive application of the sentencing guidelines. (Crim. No. 95-cr-29, Docket
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No. 3347.) On January 12, 2009, Ortiz filed a notice of appeal. (Crim. No. 95-cr-29,
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Docket No. 3400.) On June 30, 2009, the First Circuit summarily affirmed our ruling,
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stating that “the denial of a reduction was not error.” (Crim. No. 95-cr-29, Docket
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No. 3401.)
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reference to murder under the guidelines [and therefore] the United States Sentencing
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Commission cocaine base amendments do not render him eligible for a reduction of
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sentence.” (Id.)
The First Circuit stated that Ortiz’s sentence “was based on the cross-
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On January 31, 2013, Ortiz filed the instant petition as a Rule 35 motion. (Crim.
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No. 95-cr-29, Docket No. 3597.) We ordered that it should be treated as a petition under
Civil No. 13-1154 (JAF)
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28 U.S.C. § 2255. (Crim. No. 95-cr-29, Docket No. 3601.) On February 22, 2013, Ortiz
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re-filed his motion as one to vacate, set aside or correct his sentence under 28 U.S.C.
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§ 2255. (Docket No. 1.) On April 12, 2013, the United States filed a response in
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opposition to Ortiz’s motion.
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supplemental motion to amend his motion to vacate, set aside, or correct the sentence.
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(Docket No. 4.)
(Docket No. 3.)
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II.
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On May 9, 2013, Ortiz filed a
Legal Standard
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Before filing a second or successive motion under Section 2255, a defendant
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“shall move the appropriate court of appeals for an order authorizing the district court to
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consider the application.” 28 U.S.C. § 2244(b)(3)(A); see also, 28 U.S.C. § 2255 (“A
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second or successive motion must be certified as provided in section 2244 by a panel of
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the appropriate court of appeals….”). A district court lacks jurisdiction over a second or
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successive petition unless the defendant obtains certification from the appropriate court
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of appeals. Trenkler v. United States, 536 F.3d 85, 96 (1st Cir. 2008). Ortiz submitted
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his first motion under Section 2255 on July 12, 2001, and we dismissed that motion on
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November 25, 2003. (Crim. No. 95-cr-29, Docket Nos. 2893, 3275.) Ortiz has not
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obtained certification from the First Circuit to file a successive petition and, therefore, we
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lack jurisdiction to rule on this motion.
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III.
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Certificate of Appealability
In accordance with Rule 11 of the Rules Governing § 2255 Proceedings, whenever
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issuing a denial of § 2255 relief we must concurrently determine whether to issue a
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certificate of appealability (“COA”). We grant a COA only upon “a substantial showing
Civil No. 13-1154 (JAF)
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of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). To make this showing,
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“[t]he petitioner must demonstrate that reasonable jurists would find the district court's
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assessment of the constitutional claims debatable or wrong.” Miller-El v. Cockrell, 537
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U.S. 322, 338 (2003) (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)). While
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Ortiz has not yet requested a COA, we see no way in which a reasonable jurist could find
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our assessment of his constitutional claims debatable or wrong. Ortiz may request a
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COA directly from the First Circuit, pursuant to Rule of Appellate Procedure 22.
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V.
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Conclusion
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For the foregoing reasons, we hereby DENY Ortiz’s § 2255 motion (Docket
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No. 1).
Pursuant to Rule 9 of the Rules Governing § 2255 Proceedings, summary
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dismissal is in order because Ortiz must obtain an order from the court of appeals before
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we can consider a second petition under § 2255.
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IT IS SO ORDERED.
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San Juan, Puerto Rico, this 8th day of January, 2014.
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S/José Antonio Fusté
JOSE ANTONIO FUSTE
U. S. DISTRICT JUDGE
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