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Ortiz v. Smith

United States District Court, D. Hawaii

October 19, 2016

ANIBAL ORTIZ, #A1053898, Petitioner,
v.
RAYMOND SMITH, Respondent.

          ORDER DISMISSING PETITION AS TIME-BARRED PURSUANT TO 28 U.S.C. § 2244(D) AND DENYING CERTIFICATE OF APPEALABILITY

          DERRICK K. WATSON UNITED STATES DISTRICT JUDGE

         ORDER DISMISSING PETITION AS TIME-BARRED AND DENYING CERTIFICATE OF APPEALABILITY

         Before the court is pro se petitioner Anibal Ortiz's petition for writ of habeas corpus brought pursuant to 28 U.S.C. § 2254. Ortiz is a Hawaii state prisoner incarcerated at the Lea County Correctional Facility (“LCCF”) located in Hobbs, New Mexico.

         Ortiz challenges his judgment of conviction and sentence imposed by the Circuit Court of the First Circuit, State of Hawaii (“circuit court”) in State v. Ortiz, Cr. No. 1PC03-1-000036, for Murder in the Second Degree (Count One), Carrying, Using or Threatening to Use a Firearm in the Commission of a Felony (Count Two), and Place to Keep Pistol or Revolver (Count Three). See Pet., ECF No. 1; http://hoohiki.courts.hawaii.gov/#/case?caseId=1PC031000036 (“Ho`ohiki”) (last visited Oct. 15, 2016).

         Respondent argues that Ortiz's claims are time-barred pursuant to 28 U.S.C. § 2244(d)(1). Prelim. Resp., ECF No. 8; Mem. Addressing Pet'rs Access to Legal Services, ECF Nos. 12, 12-1 through 12-5. Ortiz asserts that he is entitled to equitable tolling of the statute of limitation based on his actual innocence and his 2014 transfer to and current confinement in New Mexico. See Pet'r Ex Parte Mot. ECF Nos. 9, 9-1 to 9-11; Pet'r Opposed Reply to States Prelim. Answer, ECF Nos. 13, 13-1 to 13-10; Supp. Mem., ECF Nos. 14, 14-1 to 14-23. After careful consideration of the entire record, the court DISMISSES the Petition with prejudice as untimely. Any request for a certificate of appealability (“COA”) is DENIED.

         I. BACKGROUND

         On September 24, 2003, Ortiz was sentenced to life with the possibility of parole for Count One, twenty years imprisonment for Count Two, and ten years imprisonment for Count Three, each term to run concurrently. Pet., ECF No. 1; Resp't Ex. A, ECF No. 8-2.

         Ortiz was incarcerated in Hawaii in Department of Public Safety (“DPS”) facilities between December 31, 2002, and June 22, 2004. Komori Dec., ECF No. 12, PageID #179. On June 23, 2004, Ortiz was transferred to the Tallahatchie County Correctional Facility (“TCCF”), located in Tutwiler, Mississippi, pursuant to a contract between DPS and the Corrections Corporation of America (“CCA”). Id.

         On December 5, 2005, the Hawaii Intermediate Court of Appeal (“ICA”) affirmed Ortiz's convictions and sentences by Summary Disposition Order. Resp't Ex. A, ECF No. 8-2. The Hawaii Supreme Court rejected certiorari on January 17, 2006. Resp't Ex. B, ECF No. 8-3. Notice and Judgment on Appeal was filed on February 1, 2006. Resp't Ex. C, ECF No. 8-4.

         On or about July 17, 2007, Ortiz was transferred from TCCF to the CCA's Saguaro Correctional Center (“SCC”) located in Eloy, Arizona. Komori Dec., ECF No. 12, PageID #179.

         On or about September 2, 2010, Ortiz, proceeding pro se, filed his first post-conviction petition to vacate, set aside, or correct judgment pursuant to Rule 40 of the Hawaii Rules of Penal Procedure (“HRPP”) (“First Rule 40 Petition”). Resp't Ex. D, ECF No. 8-5. On November 7, 2012, the circuit court denied the First Rule 40 Petition. Resp't Ex. E, ECF No. 8-6. Although Ortiz appealed, on March 27, 2014, the ICA dismissed the appeal for Ortiz's failure to file an opening brief despite having been granted two extensions of time to do so. Resp't Ex. R, ECF No. 8-7 (Order Dismissing Appeal Pursuant to HRAP 30).

         On December 27, 2012, Ortiz filed a second pro se Rule 40 petition (“Second Rule 40 Petition”), while the First Rule 40 Petition was pending. Resp't Ex. G, ECF No. 8-8. The circuit court dismissed the Second Rule 40 Petition on February 13, 2013. Resp't Ex. H, ECF No. 8-9. On March 27, 2014, the ICA dismissed Ortiz's appeal in the Second Rule 40 Petition for his failure to file an opening brief, again despite having been granted two extensions of time. Resp't Ex. I, ECF No. 8-10 (Order Dismissing Appeal Pursuant to HRAP 30).

         Approximately two months later, on or about May 21, 2014, Ortiz was transferred to the custody of the New Mexico Corrections Department (“NMCD”) pursuant to an Interstate Corrections Compact between Hawaii and New Mexico. Komori Dec., ECF No. 12, PageID #179. Since that time, Ortiz has been housed in the Lea County Correctional Center (“LCCC”).

         On or about January 28, 2015, Ortiz, proceeding pro se, filed a document in the circuit court titled. “Petitioners [sic] Request for His Mittimus and Judgement & Sentence, and a Habeas Corpus Petition with the In Forma Pauperis Forms.” See ECF No. 14-3. The circuit court acknowledged receipt and notified Ortiz that it had forwarded the document to the Criminal Administrative Division for appropriate review and action. ECF No. 14-2.

         On April 28, 2015, Ortiz filed a “Petition for Writ of Habeas Corpus” in the circuit court on New Mexico Form 9-701. See Resp't Ex. J, ECF No. 8-11; Pet'r Ex. D, ECF 14-4 to 14-10. On June 5, 2015, the circuit court designated this petition as a “Nonconforming Petition for Post-Conviction Relief, ” and directed Ortiz to complete and submit an HRPP Form A and Form B, ...


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