United States District Court, D. Hawaii
ORDER SETTING PRELIMINARY HEARING
Oki Mollway United States District Judge
23, 2016, pro se petitioner Larry James Ortiz filed a
Petition for Writ of Habeas Corpus pursuant to 28 U.S.C.
§ 2254. Pet., ECF No. 1. In the Petition, Ortiz states
that he is “unable to read and write, ” and that
his illiteracy prevented him from filing earlier, but that he
had assistance in filing the Petition. Id., PageID
#13. Ortiz does not identify his assistant. It appears that
Ortiz personally signed the Petition.
6, 2016, the court dismissed Ortiz's Petition because it
challenged two separate criminal convictions, appeared time
barred on its face, failed to name a respondent, and
otherwise failed to state a claim. See Order
Dismissing Petition With Leave to Amend (“Dismissal
Order”), ECF No. 5. The court carefully explained these
deficiencies and gave Ortiz leave to amend on or before July
7, 2016, Ortiz wrote the court requesting appointment of the
Federal Public Defender to represent him because he is
illiterate. ECF No. 8. Ortiz attached two letters from the
Federal Public Defender to him, dated January 28, 2015, and
June 17, 2016, in support of his request. See ECF
Nos. 8 1, 8 2. These letters detail Ortiz's efforts to
obtain the Federal Public Defender's representation in
state or federal court in 2005, 2010, 2015, and 2016. In
response, the undersigned sent Ortiz another copy of the
Dismissal Order and explained again what he must do to
proceed. Letter, ECF No. 9.
August 15, 2016, inmate Mickey A. Maddox submitted a letter
to the court regarding the issues presented in Ortiz's
Petition, apparently seeking permission to assist Ortiz. ECF
No. 11. Because Maddox's letter did not say that Ortiz
had sought his help, or that he was in communication with
Ortiz, the court did not respond to Maddox. Instead, the
court sent Ortiz a copy of Maddox's letter and another
copy of the Dismissal Order, explaining again what Ortiz had
to do to properly amend his claims. ECF No. 13. The court
then extended the date for filing an Amended Petition. ECF
September 29, 2016, Ortiz filed an Amended Petition. Am.
Pet., ECF No. 15. The Amended Petition complied with the
court's directions, and it appeared that Ortiz had
personally signed it, although he again stated that he was
illiterate and “unschooled in legal issues.”
Id., PageID #114. Ortiz did not indicate that he had
had assistance with the Amended Petition.
October 17, 2016, the court issued a Preliminary Order to
Show Cause (“OSC”) and Answer the Amended
Petition. OSC, ECF No. 16. The OSC directed Ortiz to explain
on or before November 28, 2016, why the Amended Petition
should not be dismissed as time barred under 28 U.S.C. §
2244(d). The OSC set Respondent's deadline for filing an
Answer or dispositive motion on January 9, 2017. The OSC
stated that the Answer or motion should address, among other
things, Ortiz's response to the OSC.
November 28, 2016, prison officials received Ortiz's
presumed Response to the OSC for filing with the court.
See ECF No. 19 1 (Response envelope). Maddox drafted
this document, which was not personally signed by Ortiz. If
Ortiz approved this Response, but was unable to sign it, it
is timely. See Rule 3(d) of the Rules Governing
Section 2254 Cases in the United States District Courts
(“A paper filed by an inmate confined in an institution
is timely if deposited in the institution's internal
mailing system on or before the last day for filing.”).
December 1, 2016, Respondent electronically filed a
Preliminary Response to the Petition and OSC. ECF No. 18
(filestamped 3:53 p.m.). This was before Respondent received
Ortiz's Response to the OSC. Respondent asserted that
Ortiz's claims were statutorily time barred and briefly
argued that, because Ortiz had failed to respond to the OSC,
he had failed to establish any basis for equitable tolling of
the statute of limitation.
minutes later, the court received and file stamped the
Response to the OSC and certificate of service. ECF No. 19
(filestamped 4:00 p.m.). The Clerk docketed Ortiz's
Response the next day, December 2, 2016. 2016.
the Response, Maddox also submitted a Request to Enter Brief
of Amicus Curiae (“Request”). ECF No. 20. Maddox
stated that he was making the request because Ortiz was
illiterate and “tests at or near to Third Grade
levels.” Id., PageID #179. Maddox said that he
had prepared Ortiz's state post conviction petition three
years earlier, but had had “no direct contact
with” Ortiz, “no means whatsoever to speak with
or communicate with” Ortiz, and had not seen Ortiz
“for a long time.” Id.
Ortiz's Response (as drafted by Maddox), nor
Respondent's Preliminary Answer is responsive to ...