Ortiz v. State of Utah

Filing 23

MEMORANDUM DECISION & ORDER GRANTING MOTION TO DISMISS: granting 7 Motion to Dismiss. This federal habeas petition was filed past the period of limitation and neither statutory nor equitable tolling rescue the delay from the period of limitations operation. This action is DISMISSED with prejudice. It is further ordered that a certificate of appealability is DENIED. The Clerk of Court is directed to CLOSE this action. Signed by Judge David Sam on 08/09/2018. (kpf)

IN THE UNITED STATES DISTRICT COURT
DISTRICT OF UTAH, CENTRAL DIVISION

DANIEL ORTIZ,

MEMORANDUM DECISION & ORDER
GRANTING MOTION TO DISMISS

Petitioner,
Case No. 2:17-cv-37 DS
v.
District Judge David Sam
STATE OF UTAH,
Respondent.

Petitioner, Daniel Ortiz, requests federal habeas corpus relief. 28 U.S.C.S. § 2254 (2018).
Having carefully considered the petition, the State’s motion to dismiss, Petitioner’s response, and
relevant law, the Court agrees with the State that the petition should be dismissed as untimely.
See id. § 2244(d).
FACTS
Based on his conviction in Utah state court of one count of aggravated robbery with the
use of a dangerous weapon, Petitioner was sentenced to six-years-to-life. The Utah Court of
Appeals affirmed his conviction, and the Utah Supreme Court denied certiorari on September 18,
2013. Petitioner had ninety days (by December 17) to file a petition for certiorari with the United
States Supreme Court, which he did not do.
Petitioner filed a petition for post-conviction relief in state court on November 21, 2013.
However, the petition was dismissed on May 6, 2014, when he failed to pay the filing fee.
Petitioner had thirty days to appeal (by June 5) but did not.
This federal habeas petition was filed over three years later on June 12, 2017.
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ANALYSIS
Federal statute imposes “a 1-year period of limitation . . . to an application for a writ of
habeas corpus by a person in custody pursuant to the judgment of a State court.” Id. The period
generally runs from “the date on which the judgment became final by the conclusion of direct
review or the expiration of the time for seeking such review.” Id. That occurred here on
December 17, 2013, ninety days after the Utah Supreme Court denied a writ of certiorari, during
which Petitioner could have sought review in the United States Supreme Court. Therefore,
Petitioner would have had until December 17, 2014 to file his federal petition, excepting
applicable tolling.
1. Statutory Tolling
The one-year limitation period is tolled while a state post-conviction petition is pending.
Id. The statute provides that “[t]he time during which a properly filed application for State postconviction or other collateral review with respect to the pertinent judgment or claim is pending
shall not be counted toward any period of limitation under this subsection.” Id. Petitioner filed
his state post-conviction petition on November 21, 2013, before his federal limitation period
began to run, thereby tolling the federal period until his state post-conviction case concluded.
See id. Therefore, when his state post-conviction petition was dismissed on May 6, 2014, and the
thirty days to appeal expired on June 5, 2014, Petitioner still had the entire one-year limitation
period remaining, giving him until June 5, 2015 to file his federal petition. He did not file his
federal petition until January 12, 2017, more than eighteen months after the federal limitations
period expired. His petition is therefore untimely.

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Despite these facts, Petitioner offers two arguments for his petition’s timeliness, neither
of which is availing. First, he contends that his direct appeal is still pending before the United
States Supreme Court, so his federal limitation period never began to run at all because his state
criminal case is not yet final. This argument rests on a January 13, 2014 filing in the state
criminal court styled “motion for extension of time to file writ of certiorari” and captioned “In
the United States Supreme Court.” The certificate of service on this motion lists the United
States Supreme Court, and the Court accepts as true--for this order only--that this same
document was in fact sent to the United States Supreme Court on January 13, 2014.
However, Petitioner’s motion for time extension was already untimely when he sent it.
Rule 13 of the Rules of the Supreme Court of the United States states that a certiorari petition
from the ruling of a state court of last resort must be filed within ninety days “after entry of the
order denying discretionary review.” Rs. of S. Ct. 13(1). Thus, Petitioner’s time to file a
certiorari petition expired on December 17, 2013--ninety days after the Utah Supreme Court’s
ruling. The rule also provides that “[t]he Clerk will not file any petition for a writ of certiorari
that is jurisdictionally out of time.” Id. 13(2). Moreover, any extension request “must be filed
with the Clerk at least 10 days before the date the petition is due,” id. 13(5), which here would
have been by December 7, 2013. Petitioner’s January 13, 2014 extension request was more than
a month past its due date when he sent it and it therefore had no effect on the finality of his state
criminal case or the federal habeas limitation period.
Petitioner’s second argument for timeliness is similarly misplaced. Petitioner argues that
his criminal case is also not yet final because he has made repeated requests to the state court for
transcripts that have not been met. The record reflects at least four transcript requests having
been made at various times to various courts, which responded with instructions regarding how

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to request transcripts--instructions Petitioner appears to have not followed. Regardless of the
details of these requests and their status, they do not affect the running of limitation period,
which starts from the day “on which the judgment became final by the conclusion of direct
review or the expiration of the time for seeking such review.” 28 U.S.C.S. § 2244(d)(1)(A)
(2018). That unquestionably occurred in this case on December 17, 2013. And once it did, the
only relevant issue for purposes of the limitation period was whether Petitioner had a valid state
post-conviction action pending, which he did until May 6, 2014, after which he did not appeal.
2. Equitable Tolling
Petitioner goes on to argue that he is entitled to equitable tolling, contending that he is a
layperson, with no knowledge of the law; he has no law library; and his actions in court
proceedings have been taken upon consulting with prison contract attorneys.
The Court addresses whether the circumstances underlying these arguments trigger
equitable tolling to save Petitioner from the period of limitation's operation. "Equitable tolling
will not be available in most cases, as extensions of time will only be granted if 'extraordinary
circumstances' beyond a prisoner's control make it impossible to file a petition on time."
Calderon v. U.S. District Court, 128 F.3d 1283, 1288 (9th Cir. 1997) (citation omitted). Those
situations include times "'when a prisoner is actually innocent'" or "'when an adversary's
conduct--or other uncontrollable circumstances--prevents a prisoner from timely filing, or when
a prisoner actively pursues judicial remedies but files a defective pleading during the statutory
period.'" Stanley, 2005 U.S. App. LEXIS 9872, at *4 (quoting Gibson, 232 F.3d at 808 (citation
omitted)). And, Petitioner "has the burden of demonstrating that equitable tolling should apply."
Lovato v. Suthers, No. 02-1132, 2002 U.S. App. LEXIS 14371, at *5 (10th Cir. July 15, 2002)

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(unpublished). Against the backdrop of these general principles, the Court considers Petitioner's
specific arguments.
Petitioner asserts that his lateness should be overlooked because he lacked legal
resources, legal knowledge, and had only limited help and misinformation from prison contract
attorneys. Petitioner has "failed to elaborate on how these circumstances" affected his ability to
bring his petition earlier. Johnson v. Jones, No. 08-6024, 2008 U.S. App. LEXIS 8639, at *5
(10th Cir. April 21, 2008) (order denying certificate of appealability). The argument that a
prisoner "had inadequate law library facilities" does not support equitable tolling. McCarley v.
Ward, Nos. 04-7114, 04-7134, 2005 U.S. App. LEXIS 14335, at *3-4 (10th Cir. July 15, 2005);
see also Miller v. Marr, 141 F.3d 976, 978 (10th Cir. 1998) ("It is not enough to say that the . . .
facility lacked all relevant statutes and case law or that the procedure to request specific
materials was inadequate."). Further, it is well settled that "'ignorance of the law, even for an
incarcerated pro se petitioner, generally does not excuse prompt filing.'" Marsh v. Soares, 223
F.3d 1217, 1220 (10th Cir. 2000) (citation omitted). Finally, simply put, "'[t]here is no
constitutional right to an attorney in state post-conviction proceedings. Consequently, a
petitioner cannot claim constitutionally ineffective assistance of counsel in such proceedings.'"
Thomas v. Gibson, 218 F.3d 1213, 1222 (10th Cir. 2000) (quoting Coleman v. Thompson, 501
U.S. 722, 752 (1991) (citations omitted)); see also 28 U.S.C.S. § 2254(i) (2018) ("The
ineffectiveness or incompetence of counsel during Federal or State collateral post-conviction
proceedings shall not be a ground for relief in a proceeding arising under section 2254."). It
follows that Petitioner's contention that the prison contract attorneys' misinformation and lack of
help thwarted his habeas filings does not toll the period of limitation. See Steed v. Head, 219

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F.3d 1298, 1300 (11th Cir. 2000) ("An attorney's miscalculation of the limitations period or
mistake is not a basis for equitable tolling.").
Petitioner has not met his burden of showing that--during the running of the federal
period of limitation and beyond--he faced extraordinary circumstances that stopped him from
timely filing or took specific steps to "'diligently pursue his federal claims.'" Id. at 930.
Petitioner thus has not established a basis for equitable tolling.
ORDER
IT IS HEREBY ORDERED that Respondent’s motion to dismiss is GRANTED. This
federal habeas petition was filed past the period of limitation and neither statutory nor equitable
tolling rescue the delay from the period of limitation’s operation. This action is DISMISSED
with prejudice.
IT IS FURTHER ORDERED that a certificate of appealability is DENIED.
The Clerk of the Court is directed to CLOSE this action.
DATED August 9th , 2018.
BY THE COURT:

____________________________
DAVID SAM
United States District Judge

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