Ortiz-Figueroa v. USA, No. 3:2013cv01154 - Document 5 (D.P.R. 2014)

Court Description: OPINION AND ORDER DENYING 1 , 4 MOTION to Vacate, Set Aside or Correct Sentence (2255) (Criminal Number 95-29) filed by Edwin Ortiz-Figueroa. Pursuant to Rule 9 of the Rules Governing § 2255 Proceedings, summary dismissal is in order because Ortiz must obtain an order from the court of appeals before we can consider a second petition under § 2255. Judgment to be entered accordingly. Signed by Judge Jose A. Fuste on 01/08.(mrj)

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UNITED STATES DISTRICT COURT DISTRICT OF PUERTO RICO 1 2 3 4 EDWIN ORTIZ-FIGUEROA, Petitioner, Civil No. 13-1154 (JAF) v. (Crim. No. 95-cr-29-36) UNITED STATES OF AMERICA, Respondent. 5 6 OPINION AND ORDER 7 Petitioner Edwin Ortiz-Figueroa ( Ortiz ) comes before the court with a petition 8 under 28 U.S.C. § 2255 to vacate, set aside, or correct the sentence we imposed. (Docket 9 No. 1.) The United States opposes his motion. (Docket No. 3.) This is the second time 10 Ortiz has petitioned us for relief under Section 2255. (Crim. No. 95-cr-29, Docket 11 No. 2893.) Because Ortiz failed to obtain certification from the First Circuit to file a 12 successive petition, we lack jurisdiction and must dismiss the motion. 13 I. 14 Background 15 Ortiz, along with codefendants, was tried before a jury beginning on 16 November 17, 1997. (Crim. No. 95-cr-29, Docket No. 1917.) He was charged with 17 conspiracy to possess with intent to distribute cocaine base, cocaine, and heroin in 18 violation of 21 U.S.C. §§ 841, 846; using and carrying a firearm during and in relation to 19 a drug conspiracy in violation of 18 U.S.C. § 924(c); conspiracy to kill while engaged in 20 a drug conspiracy in violation of 21 U.S.C. §§ 846, 848(e)(1)(A); and intentionally 21 killing or attempting to kill while engaged in a drug conspiracy in violation of 18 U.S.C. Civil No. 13-1154 (JAF) -2- 1 § 2 and 21 U.S.C. §§ 846, 848(e)(1)(A). He was also charged with liability for 2 conspiracy under Pinkerton v. United States, 328 U.S. 640 (1946). U.S. v. Collazo- 3 Aponte, 216 F.3d 163, 174 (2000). On February 16, 1998, the jury returned guilty 4 verdicts as to all defendants on all counts. We sentenced Ortiz to concurrent terms of life 5 imprisonment on multiple counts and to a consecutive ten-year term on Count 65, the 6 firearms charge. Id. 7 On July 2, 1998, Ortiz filed a notice of appeal. (Crim. No. 95-cr-29, Docket 8 No. 2340.) On June 27, 2000, the First Circuit affirmed Ortiz s conviction and sentence. 9 Collazo-Aponte, 216 F.3d at 207. On July 12, 2001, Ortiz motioned the court to vacate 10 his sentence under 28 U.S.C. § 2255. (Crim. No. 95-cr-29, Docket No. 2893.) On 11 November 25, 2003, we summarily dismissed his petition. (Crim. No. 95-cr-29, Docket 12 No. 3275.) On February 28, 2008, Ortiz moved the court for retroactive application of 13 the sentencing guidelines to his crack cocaine offense under 18 U.S.C. § 3582. (Crim. 14 No. 95-cr-29, Docket No. 3197.) On October 28, 2008, we denied Ortiz s motion for 15 retroactive application of the sentencing guidelines. (Crim. No. 95-cr-29, Docket 16 No. 3347.) On January 12, 2009, Ortiz filed a notice of appeal. (Crim. No. 95-cr-29, 17 Docket No. 3400.) On June 30, 2009, the First Circuit summarily affirmed our ruling, 18 stating that the denial of a reduction was not error. (Crim. No. 95-cr-29, Docket 19 No. 3401.) 20 reference to murder under the guidelines [and therefore] the United States Sentencing 21 Commission cocaine base amendments do not render him eligible for a reduction of 22 sentence. (Id.) The First Circuit stated that Ortiz s sentence was based on the cross- 23 On January 31, 2013, Ortiz filed the instant petition as a Rule 35 motion. (Crim. 24 No. 95-cr-29, Docket No. 3597.) We ordered that it should be treated as a petition under Civil No. 13-1154 (JAF) -3- 1 28 U.S.C. § 2255. (Crim. No. 95-cr-29, Docket No. 3601.) On February 22, 2013, Ortiz 2 re-filed his motion as one to vacate, set aside or correct his sentence under 28 U.S.C. 3 § 2255. (Docket No. 1.) On April 12, 2013, the United States filed a response in 4 opposition to Ortiz s motion. 5 supplemental motion to amend his motion to vacate, set aside, or correct the sentence. 6 (Docket No. 4.) (Docket No. 3.) 7 II. 8 On May 9, 2013, Ortiz filed a Legal Standard 9 Before filing a second or successive motion under Section 2255, a defendant 10 shall move the appropriate court of appeals for an order authorizing the district court to 11 consider the application. 28 U.S.C. § 2244(b)(3)(A); see also, 28 U.S.C. § 2255 ( A 12 second or successive motion must be certified as provided in section 2244 by a panel of 13 the appropriate court of appeals ¦. ). A district court lacks jurisdiction over a second or 14 successive petition unless the defendant obtains certification from the appropriate court 15 of appeals. Trenkler v. United States, 536 F.3d 85, 96 (1st Cir. 2008). Ortiz submitted 16 his first motion under Section 2255 on July 12, 2001, and we dismissed that motion on 17 November 25, 2003. (Crim. No. 95-cr-29, Docket Nos. 2893, 3275.) Ortiz has not 18 obtained certification from the First Circuit to file a successive petition and, therefore, we 19 lack jurisdiction to rule on this motion. 20 III. 21 22 23 Certificate of Appealability In accordance with Rule 11 of the Rules Governing § 2255 Proceedings, whenever 24 issuing a denial of § 2255 relief we must concurrently determine whether to issue a 25 certificate of appealability ( COA ). We grant a COA only upon a substantial showing Civil No. 13-1154 (JAF) -4- 1 of the denial of a constitutional right. 28 U.S.C. § 2253(c)(2). To make this showing, 2 [t]he petitioner must demonstrate that reasonable jurists would find the district court's 3 assessment of the constitutional claims debatable or wrong. Miller-El v. Cockrell, 537 4 U.S. 322, 338 (2003) (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)). While 5 Ortiz has not yet requested a COA, we see no way in which a reasonable jurist could find 6 our assessment of his constitutional claims debatable or wrong. Ortiz may request a 7 COA directly from the First Circuit, pursuant to Rule of Appellate Procedure 22. 8 V. 9 Conclusion 10 For the foregoing reasons, we hereby DENY Ortiz s § 2255 motion (Docket 11 No. 1). Pursuant to Rule 9 of the Rules Governing § 2255 Proceedings, summary 12 dismissal is in order because Ortiz must obtain an order from the court of appeals before 13 we can consider a second petition under § 2255. 14 IT IS SO ORDERED. 15 San Juan, Puerto Rico, this 8th day of January, 2014. 16 17 18 S/José Antonio Fusté JOSE ANTONIO FUSTE U. S. DISTRICT JUDGE

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