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Ortiz v. Unidentified

United States District Court, D. Hawaii

June 6, 2016

LARRY JAMES ORTIZ, #A0053511, Petitioner,
v.
UNIDENTIFIED, Respondent.

          ORDER DISMISSING PETITION WITH LEAVE TO AMEND

          Susan Oki Mollway United States District Judge.

         Before the court is pro se petitioner Larry James Ortiz’s petition for writ of habeas corpus brought pursuant to 28 U.S.C. § 2254. For the following reasons, the Petition is DISMISSED with leave granted to amend on or before July 5, 2016.

         I. BACKGROUND[1]

         On October 4, 1988, Ortiz was convicted in the Circuit Court of the First Circuit, State of Hawaii (“circuit court”), of two counts of Robbery in the First Degree, two counts of Kidnapping, Burglary in the First Degree, and Possession of Firearm by a Person Convicted of Certain Crimes, in Cr. No. 88-0459. Ortiz, 2016 WL 300214, at *1. The circuit court sentenced Ortiz to concurrent terms of life with the possibility of parole for the Robbery and Kidnapping convictions, and twenty-year terms for the Burglary and Possession of Firearm convictions. Id. The Hawaii Supreme Court affirmed on August 15, 1989. Id.

         On or about November 20, 2007, Ortiz, proceeding pro se, filed a post-conviction petition pursuant to Rule 40 of the Hawaii Rules of Penal Procedure (“HRPP”)(“First Rule 40 Petition”). Id.; see also Ortiz v. State, No. 29240, 2009 WL 3063324, at *1 (Haw. App. Sept. 25, 2009). The circuit court denied the First Rule 40 Petition, and the Intermediate Court of Appeals (“ICA”) affirmed on September 25, 2009.[2] Id.; 2016 WL 300214, at *1.

         Four years later, on or about December 23, 2013, Ortiz filed another pro se Rule 40 Petition (“Second Rule 40 Petition”). Id. He alleged ten grounds for relief under the United States Constitution, the Hawaii constitution, and Hawaii state law. On August 21, 2014, the circuit court denied the Second Rule 40 Petition. Id. at *2.

         On January 22, 2016, the ICA affirmed, holding that “the issues in the Second [Rule 40] Petition are waived and relief pursuant to HRPP Rule 40 is not available, ” because Ortiz failed to prove extraordinary circumstances justifying his failure to raise the issues on direct appeal or in the First Rule 40 Petition. Id. The ICA further held that, even if Ortiz’s claims were not waived, they were without merit. Id. at *2-3. On April 6, 2016, the Hawaii Supreme Court rejected certiorari. See Ortiz, 2016 WL 2984230, at *1.

         Ortiz completed the present federal Petition on May 18, and it was received and filed on May 23, 2016. The Petition names no Respondent and refers to two different state criminal convictions: (1) Cr. No. 88-0459 and (2) Cr. No. 95-2198 (for Escape in the Second Degree).

         Ortiz raises two claims for relief: (1) the imposition of an extended term sentence was illegal (Ground One); and (2) ineffective assistance of counsel (Ground Two). Although his claims are not clearly outlined, Ortiz appears to allege that, because the Robbery and Kidnapping charges involved only one “episode, ” or course of conduct, they cannot support an extended term sentence. He also argues that his attorney was ineffective in failing “to file [a] motion for illegal search and seizure” as Ortiz says he requested.

         II. LEGAL STANDARD

         Rule 4 of the Rules Governing Section 2254 Cases provides in pertinent part:

If it plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief in the district court, the judge must dismiss the petition and direct the clerk to notify the petitioner.

         The Advisory Committee Notes to Rule 8 indicate that the court may dismiss a petition for writ of habeas corpus, either on its own motion under Rule 4, pursuant to the respondent’s motion to dismiss, or after an answer to the petition has been filed. SeeHerbst v. Cook, 260 F.3d 1039 (9th Cir. 2001). A petition for habeas corpus should not be dismissed without leave to amend unless it appears that no ...


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