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United States v. Ortiz

United States District Court, D. Kansas

March 13, 2018

UNITED STATES OF AMERICA, Plaintiff / Respondent,
FRANCISCO ORTIZ, Defendant / Petitioner.


          John W. Lungstrum United States District Judge

         This matter is presently before the Court on the Government's motion to dismiss (Doc. # 69) defendant Francisco Ortiz's petition to vacate his conviction and sentence pursuant to 28 U.S.C. § 2255 (Doc. # 66). For the reasons set forth below, the Court grants the Government's motion, and it dismisses defendant's petition as untimely.[1]

         I. Background

         In 2005, defendant entered into a plea agreement and pleaded guilty to one count of possession with intent to distribute five milligrams of methamphetamine, and in 2007 the Court sentenced him to a term of imprisonment of 480 months (the statutory maximum). Defendant did not file an appeal.

         On June 27, 2016, defendant filed a pro se motion for appointment of counsel for purposes of filing a Section 2255 petition. The motion was docketed also as the petition itself. After retained counsel entered appearances on behalf of defendant, the motion for counsel was denied as moot. Counsel then moved on defendant's behalf for voluntary dismissal of the petition, on the basis that the motion for counsel had been misconstrued as a petition, and the Court granted the motion and dismissed the pro se petition without prejudice. Defendant's counsel then filed the instant Section 2255 petition on August 4, 2016. By the petition, defendant seeks to vacate his conviction and sentence, on the basis of his claim that his prior counsel rendered constitutionally defective assistance by failing to file a motion for withdrawal of defendant's guilty plea, failing to file a direct appeal, and failing to advise defendant with respect to seeking collateral relief. On June 23, 2017, after the Court ordered a response to the petition, the Government filed the instant motion to dismiss the petition as untimely.[2]

         II. Analysis

         A. Second or Successive Petition

         The Government argues that defendant's Section 2255 petition may be dismissed as a second or successive petition filed without certification by the Tenth Circuit. See 28 U.S.C. § 2255(h). For purposes of that rule, the Government would count defendant's withdrawn pro se motion for counsel as a first petition. The Government notes that the basis for Section 2255 relief cited in the motion lacks merit (and has not been reasserted in the present petition) and that the motion (which the Court treated as a petition) was withdrawn only after the Government had filed a response pointing out that lack of merit. The Government urges the Court to follow law from the Seventh Circuit that allows a withdrawn petition to be counted as the first petition if denial on the merits has become expected and the petition is thus withdrawn for tactical reasons. See United States v. Moore, 2017 WL 1375034, at *2 (N.D. Ind. Apr. 17, 2017) (summarizing Seventh Circuit law).

         The Court rejects this argument by the Government. In Haro-Arteaga v. United States, 199 F.3d 1195 (10th Cir. 1999), the Tenth Circuit addressed this same line of Seventh Circuit cases, and it noted that the Seventh Circuit had limited its exception (allowing a withdrawn petition to be counted) to a situation in which the petitioner conceded defeat on the withdrawn petition. See Id. at 1197. The Tenth Circuit refused to count the withdrawn petition in that case because the defendant had not conceded any claim, the petition had not been decided on the merits, and the district court had not engaged in substantive review of those merits. See Id. Similarly, in the present case, defendant's pro se “petition” was not considered or decided on the merits, and defendant did not concede a lack of merit in withdrawing the petition (he instead moved for dismissal because his motion for counsel had been misconstrued as an actual petition). Therefore, under Tenth Circuit law, the pro se petition does not count as a first petition, and the instant petition filed by counsel therefore is not a second or successive petition requiring certification under Section 2255(h).[3]

         B. Untimely Petition

         The Government also seeks dismissal of the petition as untimely. Defendant concedes that the petition does not comply with Section 2255's one-year limitations period. See 28 U.S.C. § 2255(f). Defendant does not request application of any of the traditional bases for equitable tolling of that deadline. See, e.g., Gibson v. Klinger, 232 F.3d 799, 808 (10th Cir. 2000). Instead, defendant argues that the Court should extrapolate from certain Supreme Court holdings and rule that if a defendant misses the one-year deadline because of a lack of advice from counsel, such a “procedural default” should be excused.

         The Court rejects that argument. Defendant relies on Martinez v. Ryan, 566 U.S. 1 (2012). In Martinez, the Supreme Court noted its general rule concerning “the doctrine of procedural default, under which a federal court will not review the merits of claims, including constitutional claims, that a state court declined to hear because the prisoner failed to abide by a state procedural rule.” See Id. at 9 (citing, inter alia, Coleman v. Thompson, 501 U.S. 722, 747-48 (1991)). The Court noted that in Coleman it had held that negligence by the defendant's attorney in postconviction proceedings does not constitute cause to excuse such a procedural default. See Id. at 10. In Martinez, however, the Court recognized a limited exception to that rule of Coleman, and it held that inadequate assistance of counsel (because of a lack of counsel or ineffective counsel) at initial-review collateral proceedings (when the state's procedural rules require such claims to be raised only in postconviction collateral proceedings and not on direct appeal) may establish cause to excuse the procedural default of a claim of ineffective assistance by trial counsel. See Id. at 9. Thus, the Court allowed the defendant in Martinez to pursue his federal habeas claim pursuant to 28 U.S.C. § 2254, by which he asserted ineffective assistance of trial counsel, despite his postconviction counsel's failure to assert that claim as required in state-court collateral review proceedings. See Id. at 17. Subsequently, in Trevino v. Thaler, 569 U.S. 413 (2013), the Court extended the Martinez exception to include cases in which, although state law on its face does not require ineffective-assistance-of-trial-counsel claims to be raised initially in collateral proceedings, the state court system operates in a manner to make it virtually impossible for such a claim to be raised on direct review. See Id. at 417.

         Defendant here argues that the principles of Martinez and Trevino should be applied to ensure at least one review of a claim of ineffective assistance of trial counsel. Thus, defendant asks the Court to excuse his “procedural default” of failing to abide by Section 2255's one-year deadline because he had no counsel to advise him concerning that deadline.

         There is no basis to extend the holdings of Martinez and Trevino so far, however. The Supreme Court itself stressed the limited scope of the exception that it was creating to Coleman and the procedural default rule. Thus, in Martinez, the Court stated that it was recognizing a “narrow” and ...

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