United States District Court, D. Hawaii
ORDER DISMISSING AMENDED PETITION AS TIME-BARRED AND
DENYING CERTIFICATE OF APPEALABILITY
Oki Mollway, United States District Judge
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).
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.
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.
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.
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.
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
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
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.
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.
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. See
Order, ECF No. 21, PageID #191-93.
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.
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
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,
Factual Background and Claims for Relief
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.
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
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).
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.
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.
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.