United States District Court, D. Hawaii
ORDER DISMISSING PETITION WITH LEAVE TO
Oki Mollway United States District Judge.
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,
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.
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. Id.; 2016 WL 300214, at *1.
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.
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.
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).
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
of the Rules Governing Section 2254 Cases provides in
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.
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 ...