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Ortiz v. United States

United States District Court, W.D. Washington, Seattle

October 25, 2017

CRISTOBAL ORTIZ, Plaintiff,
v.
UNITED STATES OF AMERICA, Defendant.

          ORDER DENYING MOTION TO VACATE, SET ASIDE, OR CORRECT SENTENCE UNDER 28 U.S.C. § 2255

          Robert S. Lasnik, United States District Judge.

         This matter comes before the Court on Cristobal Ortiz's pro se motion to vacate, set aside, or correct his sentence. Dkt. # 1. For the reasons explained below, the motion is DENIED.

         I. BACKGROUND

         After a two-year investigation by the Drug Enforcement Administration (DEA), federal officers arrested petitioner Cristobal Ortiz in February 2015 and charged him with a number of drug-trafficking and firearm offenses. Specifically, a superseding indictment charged him with being a felon in possession of a firearm (in violation of 18 U.S.C. § 922(g)(1)), possessing a firearm in furtherance of a drug-trafficking offense (18 U.S.C. § 924(c)), possessing a firearm with an obliterated serial number (18 U.S.C. §§ 922(k), 924(a)(1)(B)), conspiracy to distribute methamphetamine and heroin (21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), 841(b)(1)(B), 846), distribution of heroin (21 U.S.C. §§ 841(a)(1), 841(b)(1)(C)), distribution of heroin near a school (21 U.S.C. §§ 841(a)(1), 841(b)(1)(C), 860), and possession with intent to distribute methamphetamine and heroin (21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), 841(b)(1)(B)). CR Dkt. # 46.[1] Defense counsel filed a number of pretrial motions, including a motion to suppress evidence recovered from the search of Ortiz's home. CR Dkt. # 79. That motion argued the search warrant was insufficiently specific and unsupported by probable cause. After a hearing, the Court denied the motion. CR Dkt. # 98.

         In the weeks before trial was scheduled to begin, Ortiz's attorney also filed a number of motions in limine, including one motion to exclude wiretap evidence that the Court granted. CR Dkt. # 115. The week before the trial's scheduled start date, defense counsel filed a motion to continue the trial date. CR Dkt. # 118. Ortiz himself also filed a motion to continue, CR Dkt. # 135, and a motion to proceed pro se based on dissatisfactions with his attorney, CR Dkt. # 134. In an ex parte hearing, the Court heard from Ortiz regarding his self-representation motion. Ortiz made clear he mainly wanted to spend more time with counsel preparing for trial but that he would represent himself if he had to. The Court did not find a genuine and unequivocal desire to proceed pro se or an irreparable breakdown in the attorney-client relationship. Proceedings continued with counsel representing Ortiz.

         Soon thereafter, Ortiz entered into a plea agreement. He entered pleas of guilty to possession of a firearm in furtherance of a drug-trafficking offense (18 U.S.C. § 924(c)), and one count of conspiracy to distribute heroin (21 U.S.C. §§ 841(a)(1), 841(b)(1)(B), 846). The plea agreement included a limited appeal waiver: if Ortiz received a sentence within or below his recommended Sentencing Guidelines range, he would waive his rights to appeal and collaterally attack his conviction and sentence, except for grounds relating to the effectiveness of counsel. In June 2016, the Court sentenced Ortiz to 120 months imprisonment-a sentence below the recommendations of the government and U.S. Probation and well below his Guidelines range of 210 to 262 months. Ortiz did not appeal.

         Nearly six months later, Ortiz filed this motion, which asserts two claims of ineffective assistance of counsel, one claim based on Ortiz's self-representation motion, and one claim citing Johnson v. United States, 135 S.Ct. 2551 (2015).

         II. DISCUSSION

         A. Ineffective Assistance of Counsel Claims

         Ortiz claims counsel was ineffective in two ways. He first claims “[c]ounsel was ineffective for failing to file a notice of appeal after [Ortiz] specifically instructed him to do so on his behalf.” Dkt. # 1 at 5. He further claims “[c]ounsel was ineffective for failing to file a [pretrial] motion arguing that the indictment should be dismiss[ed] because all the evidence used to support the indictment was based on an invalid search warrant.” Dkt. # 1 at 6.

         The Court evaluates claims of ineffective assistance of counsel under the familiar standard that requires showing (1) that counsel's performance was deficient to the point that it fell below an objective standard of reasonableness, and (2) that counsel's deficient performance prejudiced defendant. Strickland v. Washington, 466 U.S. 668, 687-88 (1984). Counsel's failure to file an appeal, or failure to consult the defendant about appealing, may amount to constitutionally deficient performance if that failure was objectively unreasonable. Roe v. Flores-Ortega, 528 U.S. 470, 479-80. In those cases, counsel's failure to consult about or file an appeal is more likely to be objectively unreasonable if the defendant indicated he wanted to appeal, or if nonfrivolous appeal grounds would have made an appeal rational. Id. at 480. In a § 2255 motion, the petitioner must make that showing by a preponderance of the evidence. Simmons v. Blodgett, 110 F.3d 39, 42 (9th Cir. 1997).

         Ortiz fails to make that showing on either of his ineffectiveness claims. Regarding his notice-of-appeal claim, Ortiz does not show either that he indicated a desire to appeal, or that there were nonfrivolous grounds for filing one. He asserts, for the first time in this petition, that he wrote counsel a letter two days after sentencing with instructions to file a notice of appeal. In a declaration, Ortiz's trial counsel represents that he did not file a notice of appeal, because Ortiz never asked or instructed him to do so. Dkt. # 9-1 at 64 ¶ 6 (Gombiner Decl.). He represents that he has no record or recollection of a letter or any other communication from Ortiz to that effect. Id. Additionally, counsel represents that he “had several communications with Mr. Ortiz at and after his sentencing[, and] . . . Mr. Ortiz never orally requested that [counsel] file a Notice of Appeal following his sentencing.” Id. Ortiz has not made even a minimal showing that an appeal request was ever lodged with counsel. Furthermore, given that Ortiz had just pleaded guilty pursuant to a plea agreement that waived appeal rights, there is no indication of any nonfrivolous appeal grounds to make counsel reasonably suspect Ortiz would want to appeal. Ortiz accordingly does not show that counsel's failure to file an appeal fell below an objective standard of reasonableness. See Strickland, 466 U.S. at 688.

         Ortiz also fails to show he received ineffective assistance of counsel because his attorney did not “file a pre-trial motion arguing that the indictment should be dismiss[ed] because all the evidence used to support the indictment was based on an invalid search warrant.” Dkt. # 1 at 6. There is no indication that Ortiz asked counsel to file that motion, nor is there any indication the motion would have succeeded. Counsel had already filed a suppression motion challenging the search warrant, CR Dkt. # 79, and that motion was denied, CR Dkt. # 98. The Court can find no reason why counsel should have filed a motion to dismiss based on another challenge to that warrant. Ortiz accordingly fails to show counsel performed deficiently, or articulate any prejudice he suffered from counsel's performance.

         B. J ...


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