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Ortiz v. Taylor

United States District Court, D. Hawaii

March 24, 2017

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

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

          Susan Oki Mollway, United States District Judge

         Before the court is pro se petitioner Larry James Ortiz's Amended Petition seeking relief under 28 U.S.C. § 2254. ECF No. 15. Ortiz challenges the 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. 88-0459 (Haw. Cir. Ct. 1988).

         Respondent argues that Ortiz's claims are time-barred pursuant to 28 U.S.C. § 2244(d). Ortiz asserts that he is entitled to statutory or equitable tolling of the statute of limitation.

         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

         A. Procedural History

         On May 18, 2016, Ortiz filed his original Petition by placing it in the Saguaro Correctional Center (“SCC”) mail system. See ECF No. 1., PageID ## 1, 15. See Saffold v. Newland, 250 F.3d 1262, 1268 (9th Cir. 2000), vacated on other grounds, 536 U.S. 214 (2002) (holding habeas petition is constructively filed on date prisoner presents petition to prison authorities for forwarding to the court); Huizar v. Carey, 273 F.3d 1220, 1222 (9th Cir. 2001). The Petition raised two grounds for relief: (1) that Ortiz's extended term sentence was illegal because it was based on multiple episodes, rather than only one event; and (2) that Ortiz's trial attorney failed to submit a pretrial motion alleging an illegal search and seizure. Ortiz asserted that his inability to read and write had prevented him from filing these claims earlier, but said he had received assistance in filing the present Petition. ECF No. 1., PageID #13.

         On June 6, 2016, the court dismissed the Petition with leave to amend, because it challenged two separate criminal convictions, failed to name a respondent, failed to state a cognizable claim for habeas relief under § 2254, and appeared time-barred on its face. Order, ECF No. 5 (“Dismissal Order”). The court carefully explained these issues in the Dismissal Order.

         On September 29, 2016, Ortiz filed the Amended Petition. Am. Pet., ECF No. 15. It raises four grounds for relief: (1) Ortiz's extended term sentences are illegal under Hawaii Revised Statutes §§ 706-661, 706-662, and 706-664, as amended in 2007 (Ground One); (2) Ortiz's extended sentences violate the Sixth Amendment as determined under Apprendi v. New Jersey, 530 U.S. 466 (2000) (Ground Two); (3) an unidentified conflict with his attorney resulted in ineffective assistance of counsel (because the same counsel represented Ortiz at trial and on appeal) (Ground Three); and (4) Ortiz's extended term sentences constitute cruel and unusual punishment under the Eighth Amendment (Ground Four). Ortiz asserts that his claims are exhausted, “current[, ] and timely.” Id., PageId. #112. He does not address the court's discussion regarding the inapplicability of Apprendi v. New Jersey, 530 U.S. 466 (2000), to his 1989 conviction and sentence, but asserts again that he is illiterate.

         On October 17, 2016, the court issued a Preliminary Order to Show Cause (“OSC”) and Answer the Amended Petition. OSC, ECF No. 16. The court directed (1) Ortiz to explain, on or before November 28, 2016, why the Amended Petition should not be dismissed as time-barred, and (2) Respondent James Taylor, as Warden at SCC, to file, on or before January 9, 2017, an Answer or dispositive motion relating to the Amended Petition and to any response from Ortiz.

         On December 1, 2016, before the court had received Ortiz's Response to the OSC, Respondent filed a Preliminary Response to the Petition. ECF No. 18 (file stamped 3:53 p.m.). Respondent asserted that Ortiz's claims were time-barred and that Ortiz had failed to establish a basis for equitable tolling because he had failed to respond to the OSC.

         Several minutes later, the court received Ortiz's Response to the OSC and inmate Mickey Maddox's Request to Enter Brief of Amicus Curiae. See ECF Nos. 19 (file stamped 4:00 p.m.) and 20. These documents were received in the same envelope; the envelope itself showed that the documents had been deposited in the SCC mail system on November 28, 2016. ECF No. 19-1. Maddox had apparently drafted and mailed the Response for Ortiz; Ortiz had not signed it. It is unclear from the Response whether Ortiz was aware of the mailing or had sought Maddox's assistance.

         Maddox sought appointment as Ortiz's legal assistant on the ground that Ortiz had a third-grade reading level. Maddox said he had assisted Ortiz in filing his state post-conviction petition in 2013, although Maddox stated that he had not communicated with Ortiz “for a long time.” See ECF No. 20 at PageID #179. The court denied Maddox's request because Maddox is not an attorney and there was no indication in the record that Ortiz had approved or sought his help, or that Maddox shared Ortiz's best interests in this matter.[1] See Order, ECF No. 21, PageID #191-93.

         Because Ortiz had repeatedly alleged that he is illiterate, and to ensure that Ortiz understood his burden regarding the timeliness of his claims, the court set hearings on February 6 and 13, 2017, to allow Ortiz to explain orally how his alleged inability to read and write had prevented him from timely filing a federal habeas petition from 1988, when he received the extended sentence he challenges, until he filed the present action in 2016. See ECF Nos. 29, 31. The court ordered Respondent to submit supplemental briefing responding to Ortiz's claim that he had been unable to pursue federal habeas relief earlier given his alleged illiteracy. This court also directed Respondent to have all documents submitted to the court read out loud to Ortiz before these hearings.

         At the hearing on February 13, 2017, the court directed Respondent to respond to Ortiz's additional claim that his prolonged confinement in segregated housing had kept him from filing a timely federal habeas petition, and that his recent transfer to Hawaii had impaired his ability to prove his entitlement to equitable tolling or to adequately respond to the court's questions.

         On March 17, 2017, the court held a final hearing. Ortiz orally explained his claim for tolling the statute of limitation, answered the court's questions concerning his past and present housing situations, and detailed his ability to go to the prison law library, access his legal materials, and obtain assistance throughout his incarceration. Ortiz then moved to submit nearly three hundred pages of exhibits in support of his claims for tolling the statute of limitation. The court accepted and filed Ortiz's exhibits and took the matter under advisement. See ECF Nos. 39, 40.[2]

         B. Factual Background and Claims for Relief

         On October 4, 1988, Ortiz was convicted of two counts of Robbery in the First Degree (Counts I, II), two counts of Kidnapping (Counts IV, V), Burglary in the First Degree (Count III), and Possession of a Firearm by a Person Convicted of Certain Crimes (Count VI), in Cr. No. 88-0459. See Prelim. Answer, ECF No. 18, PageID #133. The circuit court sentenced Ortiz to concurrent terms of life with the possibility of parole for Counts I, II, IV, and V, and twenty-year terms for Counts III and VI. Id. The Hawaii Supreme Court affirmed Ortiz's convictions on August 15, 1989. ECF No. 18-2.

         Approximately eighteen years later, on or about November 20, 2007, Ortiz, proceeding pro se, filed his first state post-conviction petition pursuant to Rule 40 of the Hawaii Rules of Penal Procedure (“HRPP”)(“First Rule 40 Petition”). Ortiz v. State, 2009 WL 3063324, at *1 (Haw. App. Sept. 25, 2009); see http://hoohiki.courts.hawaii.gov/#/case?caseId=1PR07100 0051 (last visited Mar. 14, 2017). Ortiz argued that his extended sentences were illegal pursuant to Apprendi v. New Jersey, 530 U.S. 466 (2000), and its application in Hawaii under State v. Maugaotega, 115 Haw. 432, 168 P.3d 562 (Haw. 2007).

         On May 2, 2008, the circuit court denied Ortiz's First Rule 40 Petition. The Hawaii Intermediate Court of Appeals (“ICA”) affirmed the circuit court on September 25, 2009. Ortiz, 2009 WL 3063324, at *1. The ICA held that neither Apprendi nor Maugaotega was retroactive to cases on collateral review such as Ortiz's. Id. The ICA further held that Ortiz's claim that Hawaii's extended-term sentencing regime, which was amended in 2007 to comply with Apprendi and Maugaotega, rendered Ortiz's original sentence “void ab initio, ” had been waived and, in any event, was meritless. Id.

         Four years later, on or about December 23, 2013, Ortiz filed another pro se Rule 40 Petition (“Second Rule 40 Petition”). See Ortiz v. State, 2016 WL 300214, at *1 (Haw. App. 2016); ECF No. 18-5. Ortiz asserted 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.

         On 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 had 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 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 denied Ortiz's certiorari request. See Ortiz, 2016 WL 2984230, at *1. One month later, Ortiz commenced the present action.

         II. 28 ...


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