Ortega v. USA, No. 3:2008cv70019 - Document 1 (D. Or. 2009)
Court Description: Opinion and Order on Motion to Vacate, Set Aside or Correct Sentence (2255); Defendant's Motion to Vacate, Set Aside or Correct Sentence DENIED; by Honorable Michael W. Mosman, signed 2/19/09. (kw)
Download PDF
<![CDATA[
I I UNITED STAT$S DISTRICT COURT DISTRICT OF OREGON UNITED STATES OF AMERICA, No. CR 06-1 02-MO No. CV 08-70019-MO Plaintiff, OPINION AND ORDER v. PABLO EMERANCO ORTEGA, a.k.a. Efraim Barraza, Defendant. MOSMAN,J., Defendant, appearing pro se, filed a Motion to Vacate (#45) his sentence pursuant to 28 U.S.C. § 2255. Mr. Ortega argues that: (1) he was denied a reasonable mental health evaluation; (2) he was denied effective assistance of counsel; and (3) the fmding that he was a career offender for the purposes of sentencing was in error. For the reasons set forth below, I DENY the motion. BAckGROUND On April 24, 2007, Mr. Ortega pled g~ilty (#24) to a superseding indictment charging him I with unarmed bank robbery under 18 U.S.C. !l13(a). As part of the plea agreement, Mr. Ortega waived his right to appeal or collaterally attai his conviction or sentence under 28 U.S.C. § I 2255, except for claims regarding ineffective assistance of counsel. (Plea Agreement (#26) ~ 10.) . I PAGE 1 - OPINION AND ORDER At sentencing, this court found that Mr. Ortega's previous Washington State conviction for Intimidating a Public Servant was a crim~ of violence. (P1.'s Resp. (#50) Ex. Bat 15.) As a result, Mr. Ortega was sentenced as a Careen Offender. (Id.) On September 4,2007, Mr. Ortega was sentenced to a 135-month tenn of imprisonment. Mr. Ortega appealed the finding that his previous conviction for Intimidating a Public Servant was a crime of violence, making hislstatus a Career Offender. (Defo's Mot. to Vacate (#45) Ex. C.) The Ninth Circuit dismissed rtfr. Ortega's appeal on March 17, 2008, holding that the appeal waiver was valid. (pl.'s Resp. (#50) Ex. A.) Mr. Ortega filed the instant motion on July 30, 2008. DISCUSSION A. Mental Health Evaluation Mr. Ortega first argues that he was denied a reliable mental health evaluation. After he was arrested, booked, and housed at Inverness County Jail for unarmed bank robbery, he was evaluated and diagnosed with depression. (IDef.'s Mot. to Vacate (#45) Ex. A at 1.) Mr. Ortega maintains that he suffers from "Grave[s'] Di~ease" and was actually "delusional" at the time he committed his offense. (Id.) Plaintiffresponds that Mr. Ortega did not raise this issue at either his sentencing or on direct appeal. (PIo's Re~. (#50) 2.) The Ninth Circuit has "consistently lleld that a § 2255 petitioner cannot challenge nonconstitutional sentencing errors if such errors were not challenged in an earlier proceeding." United States v. McMullen, 98 F.3d 1155, 1157 (9th Cir. 1996) (citing United States v. I Schlesinger, 49 F.3d 483, 485 (9th Cir. 199~». Petitioners waive their right to object in I collateral proceedings if they did not raise a proper objection to the district court or on direct I PAGE 2 - OPINION AND ORDER appeal. Id. Mr. Ortega does not cite any supporting case law, or rationale, why a reliable mental health evaluation is a constitutional right thalt was violated by the government. Nor does Mr. Ortega challenge the government's contentiOiIl that he failed to raise this issue before the district court or on direct appeal. Therefore, I decline to vacate Mr. Ortega's sentence on this basis. B. Ineffective Assistance ofCounsel Mr. Ortega further argues that he wa~ denied effective assistance of counseL Mr. Ortega contends that his counsel was aware of his mental disorder, but did not obtain infonnation or seek to have his mental health evaluated. (Def.'s Mot. to Vacate (#45) Ex. B at 1-2.) Counsel is only required to provide "reasonably effective assistance." Strickland v. Washington, 466 U.S. 668,687 (1984). To demonstrate ineffective assistance of counsel, a plaintiff must show both that counsel's perfOirmance was deficient and that the deficient perfonnance resulted in prejudice. Id. PreJudice exists where there is a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694. The standard by whicJt a court reviews counsel's perfonnance is highly deferential, and there is a presumption that counsel rendered adequate assistance falling within the range of acceptable professional judgment. United States v. Palomba, 31 F.3d 1456, 1460 (9th Cir. 1994). Here, as the government notes, Mr. Ortega does not provide any actual evidence that he I previously suffered from or was treated for <lJraves' disease, despite his regular contact with the I criminal justice system. Mr. Ortega also un erwent a mental health evaluation after his arrest in I this case, and was diagnosed with depressio . This means that Mr. Ortega's counsel would not PAGE 3 - OPINION AND ORDER have had infonnation in the record to inform him of Mr. Ortega's mental state, beyond the noted depression. Mr. Ortega also does not offer any evidence, beyond his opinion, that suggests his counsel ignored his mental state. ThereforeJ there is no evidence before the court that counsel's I perfonnance was deficient. Further, Mr. Ortega cannot establishlthat but for his counsel's alleged deficiency, he would have been diagnosed with Graves' disease, leading to a different result than his conviction and sentencing. There is no evidence that Mr. Ortega has ever been diagnosed with anything but depression. Thus, even ifhis counsel had r~ommended that he undergo a mental health evaluation, there is no indication that he wo~ld be diagnosed with Graves' disease. Even if Mr. Ortega was diagnosed with Graves' disease, it would not have affected his conviction. There is no evidence in the record that Mr. Ortega was delusional from Graves' disease. Without evidence that he was delU$ional, Mr. Ortega has not established there was a reasonable probability that his conviction would have been different ifhis attorney had known of the Graves' disease diagnosis. Moreover, there is no reasonable probability that the diagnosis would have affected his sentencing, his co~sel presented mitigating evidence that Mr. Ortega suffered from depression. (pl.'s Resp. (#50)IEx. B at I5.) An additional mental health issue would have had little incremental effect on ¥r. Ortega's already accounted for mental state. Therefore, Mr. Ortega has not established the second prong that his counsel's alleged deficiency has resulted in prejudice. C Career Offender Status Mr. Ortega argues that he should notlhave been sentenced with a career offender enhancement based on his prior Washingto I state conviction for Intimidating a Public Servant. PAGE 4 - OPINION AND ORDER (Def.'s Mot. to Vacate (#45) Ex. Cat 1-2.) Mr. Ortega raised this issue directly on appeal to the Ninth Circuit. (Id. at 7.) The Ninth Circuit dismissed Mr. Ortega's appeal on March 17, 2008. I (Pl.'s Resp. (#50) Ex. A.) Because the right ~o appeal this issue was waived, the Ninth Circuit sustained the waiver on direct appeal. (Id.) rI'herefore, Mr. Ortega's motion is denied with respect to this claim. CONCLUSION For the foregoing reasons, defendant;s motion to vacate or set aside his sentence under 28 U.S.C. § 2255 is DENIED. IT IS SO ORDERED. DATED this ~ day of February, 2009. MICHAEL W. MOS United States District Court PAGE 5 - OPINION AND ORDER
]]>
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You
should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google
Privacy Policy and
Terms of Service apply.
