Free Order on Motion to Vacate (2255) - District Court of Colorado - Colorado

Case 1:00-cr-00482-EWN

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Judge Edward W. Nottingham

Civil Action No. 06-cv-00062-EWN (Criminal Action No. 00-cr-482-01-EWN) UNITED STATES OF AMERICA, v. ISAAC ORTIZ, Movant.

ORDER DENYING 28 U.S.C. § 2255 MOTION

Movant Isaac Ortiz has filed pro se a motion pursuant to 28 U.S.C. § 2255 to vacate, set aside, or correct his sentence. I must construe the motion to vacate liberally because Mr. Ortiz is representing himself. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972); Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). However, I should not be the pro se litigant' advocate. See Hall, 935 F.2d at 1110. For the s reasons stated below, the motion to vacate will be denied. On August 31, 2001, Mr. Ortiz pleaded guilty to use and carry a destructive device and destructive devices during and in relation to a crime of violence and aiding and abetting (count five), and tampering with a witness (counts one and two). On November 16, 2001, he was sentenced to 384 months of imprisonment to be followed by five years of supervised release and ordered to pay $67,040.15 in restitution and a $150.00 special assessment. Judgment of conviction was entered on the docket on December 26, 2001. Mr. Ortiz did not appeal directly from the judgment of conviction

Case 1:00-cr-00482-EWN

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and the time for filing a direct appeal expired on January 10, 2002, ten days after the entry of judgment. See United States v. Burch, 202 F.3d 1274 (10th Cir. 2000); Fed. R. App. P. 4(b)(1) and 26(a). The 28 U.S.C. § 2255 motion was filed on January 13, 2006. However, the § 2255 motion was mailed on January 10, 2006. Therefore, the action was filed on January 10 pursuant to the prisoner mailbox rule. See Houston v. Lack, 487 U.S. 266, 270 (1988). This is Mr. Ortiz' first § 2255 motion. s In the instant motion to vacate, Mr. Ortiz challenges his sentence pursuant to the United States Supreme Court' decisions in Apprendi v. New Jersey, 530 U.S. 466 s (2000); and United States v. Booker, 125 S. Ct. 738 (2005). Although Mr. Ortiz bases his claim upon Apprendi and Booker, Blakely v. Washington, 542 U.S. 296 (2004), also is pertinent to his claims. Pursuant to 28 U.S.C. § 2255, a one-year limitation period applies to motions to vacate, set aside, or correct a federal sentence. The limitation period shall run from the latest of­ (1) the date on which the judgment of conviction becomes final; (2) the date on which the impediment to making a motion created by governmental action in violation of the Constitution or laws of the United States is removed, if the movant was prevented from making a motion by such governmental action; (3) the date on which the right asserted was initially recognized by the Supreme Court, if that right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or 2

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(4) the date on which the facts supporting the claim or claims presented could have been discovered through the exercise of due diligence. 28 U.S.C. § 2255. I first must determine the date on which the one-year limitation period began to run. As previously stated, Mr. Ortiz' conviction became final on January 10, 2002. In s accordance with 28 U.S.C. § 2255, the one-year limitation period began to run on January 10, 2002, the day the judgment of conviction became final. Mr. Ortiz does not allege that he was prevented by unconstitutional governmental action from filing the instant motion sooner and the facts supporting his claims could have been discovered at the time of his conviction and sentencing. Mr. Ortiz also is not asserting a claim based on a right newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review. Apprendi was decided before Mr. Ortiz' conviction was final so retroactivity is not an s issue. However, Blakely and Booker were decided after Mr. Ortiz' conviction was s final. The United States Court of Appeals for the Tenth Circuit has held that neither Blakely nor Booker applies retroactively in collateral proceedings pursuant to 28 U.S.C. § 2255 to challenge convictions that were final when those cases were decided. See United States v. Price, 400 F.3d 844, 849 (10th Cir. 2005) (addressing retroactivity of Blakely); United States v. Bellamy, 411 F.3d 1182, 1188 (10th Cir. June 16, 2005) (addressing retroactivity of Booker). Therefore, I find that the one-year limitation period for Mr. Ortiz began to run on January 10, 2002, when his conviction became final. As noted above, the instant 3

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motion to vacate was filed in this court on January 10, 2006. Because the motion to vacate was not filed on or before January 10, 2003, the motion to vacate is time-barred in the absence of some other reason to toll the one-year limitation period. The one-year limitation period in 28 U.S.C. § 2255 is not jurisdictional and is subject to equitable tolling in appropriate extraordinary circumstances. See Miller v. Marr, 141 F.3d 976, 978 (10th Cir. 1998) (holding that equitable tolling applies to oneyear limitation period in 28 U.S.C. § 2244(d)). However, Mr. Ortiz makes no argument to justify his failure to file the instant motion in a timely manner. Therefore, I also find that equitable tolling is not appropriate in this action. Finally, even if it were not time-barred, the motion to vacate still must be denied. In Apprendi, the Supreme Court held that " [o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." Apprendi, 530 U.S. at 490. The Supreme Court held in Blakely " that the ` statutory maximum' Apprendi purposes is the maximum sentence a judge may impose solely for on the basis of the facts reflected in the jury verdict or admitted by the defendant." Blakely, 542 U.S. at 303 (citation omitted). More specifically, the Supreme Court in Blakely invalidated a sentence imposed pursuant to the State of Washington' determinate sentencing scheme, which is similar to the Federal s Sentencing Guidelines, because a judge increased the sentence based on factual findings made by the judge rather than a jury. See id. In Booker, the Supreme Court reaffirmed its holding in Apprendi and held that the rule in Blakely applies to the 4

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Federal Sentencing Guidelines. Booker, 125 S. Ct. at 755-56. Mr. Ortiz argues that his plea agreement did not explain how the government reached his 384-month sentence, that his sentence would be enhanced, or how it would be enhanced. Mr. Ortiz is mistaken. The plea agreement that Mr. Ortiz signed on August 31, 2001, specifically references the facts to which Mr. Ortiz pleaded guilty; how the government reached his 384-month sentence; that his sentence would be enhanced; and how it would be enhanced. Therefore, because it is clear that the calculation of Mr. Ortiz' sentence under the Sentencing Guidelines was based solely s on facts admitted by Mr. Ortiz, there was no error under Apprendi, Blakely, or Booker. Accordingly, it is ORDERED that the motion to vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255 filed on January 10, 2006, is denied and this civil action is dismissed. DATED at Denver, Colorado, this 30th day of January, 2006. BY THE COURT:

s/ Edward W. Nottingham EDWARD W. NOTTINGHAM United States District Judge

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