Ortiz v. United States

Background

Gabriel Ortiz, proceeding without a lawyer, moved under 28 U.S.C. § 2255 to vacate, set aside, or correct his sentence. The court treated his filing, which was styled as a request for resentencing based on plain-error review, as a Section 2255 motion.

The opinion states that Ortiz participated in a transnational organization that trafficked guns and drugs and that he pleaded guilty to conspiring to distribute and possess with intent to distribute at least 100 grams of heroin. His plea agreement stated that the offense involved between three and ten kilograms of heroin. Because of five prior convictions, including drug-trafficking and firearms convictions, Ortiz was classified as a career offender under the Sentencing Guidelines. His advisory sentencing range was 188 to 235 months, but the court imposed a below-guidelines sentence of 156 months, followed by four years of supervised release.

The judgment was entered on February 6, 2020. Ortiz did not appeal. He filed the Section 2255 motion on November 14, 2022.

Timeliness

Section 2255 generally requires a motion to be filed within one year of the date the conviction becomes final, subject to other specified triggering dates. Because Ortiz did not appeal, the court determined that his conviction became final on February 20, 2020, when the 14-day appeal period expired. The court therefore concluded that the filing deadline was February 20, 2021, making Ortiz’s November 14, 2022, motion untimely under Section 2255(f)(1).

The court considered whether equitable tolling could excuse the late filing. Equitable tolling is an exceptional extension of a filing deadline available when a petitioner shows both diligent pursuit of rights and an extraordinary circumstance that prevented timely filing.

The court held that Ortiz did not satisfy either requirement. It found that his general references to COVID-19 and prison lockdowns did not show that the pandemic prevented him from filing. It also found that his limited-literacy argument lacked details and supporting evidence. Regarding his claim that his trial lawyer failed to file an appeal or respond to his communications, the court concluded that Ortiz had not provided evidence, had not shown diligent efforts to learn the status of an appeal, and had not demonstrated a connection between the alleged conduct and his failure to file a timely Section 2255 motion.

Disposition

The court denied Ortiz’s Section 2255 motion and dismissed the petition as untimely. Because Ortiz had not made a substantial showing that a constitutional right was denied, the court did not issue a certificate of appealability. The court also certified that an appeal would not be taken in good faith and denied Ortiz permission to appeal without paying filing fees. The clerk was instructed to close case number 22 CV 9833.

Classification

This is a procedural order because the court disposed of the Section 2255 petition on the filing deadline and equitable-tolling requirements without deciding whether Ortiz was properly classified as a career offender or whether his sentence was otherwise unlawful.