United States District Court, D. Hawaii
ORDER DISMISSING PETITION AS TIME-BARRED PURSUANT TO
28 U.S.C. § 2244(D) AND DENYING CERTIFICATE OF
DERRICK K. WATSON UNITED STATES DISTRICT JUDGE
DISMISSING PETITION AS TIME-BARRED AND DENYING CERTIFICATE OF
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.
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;
(“Ho`ohiki”) (last visited Oct. 15, 2016).
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.
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.
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”).
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.
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
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).
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).
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
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.
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, ...