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Ortiz v. Taylor

United States District Court, D. Hawaii

December 22, 2016

LARRY JAMES ORTIZ, #A0053511, Petitioner,
v.
JOSEPH TAYLOR, Respondent.

          ORDER SETTING PRELIMINARY HEARING

          Susan Oki Mollway United States District Judge

         I. BACKGROUND

         On May 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.

         On June 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 5, 2016.

         On 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.

         On 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 No. 14.

         On 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.

         On 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.

         On 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.”).

         On 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.

         Several 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.

         With 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.

         II. DISCUSSION

         Neither Ortiz's Response (as drafted by Maddox), nor Respondent's Preliminary Answer is responsive to ...


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