Scribd Logo
Upload

Welcome to Scribd!

  • Ortega v. Williams, 10th Cir. (2001)

    Uploaded by

    Scribd Government Docs
    19 views5 pages
    This order summarizes a federal court of appeals case in which Reynaldo Ortega, an inmate proceeding pro se, filed a habeas corpus petition under 28 U.S.C. § 2254 challenging his state court conviction and sentence. The district court denied the petition, finding it was procedurally barred because Ortega failed to file a timely appeal to the New Mexico Supreme Court after his state post-conviction petition was denied. The court of appeals denied Ortega's application for a certificate of appealability, agreeing that the habeas petition was procedurally barred due to his failure to exhaust state court remedies.

    Original Description:

    Filed: 2001-01-11 Precedential Status: Non-Precedential Docket: 00-2156

    Copyright

    © Public Domain

    Available Formats

    PDF or read online from Scribd

    Did you find this document useful?

    Is this content inappropriate?

    Report this Document
    This order summarizes a federal court of appeals case in which Reynaldo Ortega, an inmate proceeding pro se, filed a habeas corpus petition under 28 U.S.C. § 2254 challenging his state court conviction and sentence. The district court denied the petition, finding it was procedurally barred because Ortega failed to file a timely appeal to the New Mexico Supreme Court after his state post-conviction petition was denied. The court of appeals denied Ortega's application for a certificate of appealability, agreeing that the habeas petition was procedurally barred due to his failure to exhaust state court remedies.

    Copyright:

    Public Domain
    Download as PDF or read online from Scribd
    Flag for inappropriate content
    Download as pdf
    19 views5 pages

    Ortega v. Williams, 10th Cir. (2001)

    Uploaded by

    Scribd Government Docs
    This order summarizes a federal court of appeals case in which Reynaldo Ortega, an inmate proceeding pro se, filed a habeas corpus petition under 28 U.S.C. § 2254 challenging his state court conviction and sentence. The district court denied the petition, finding it was procedurally barred because Ortega failed to file a timely appeal to the New Mexico Supreme Court after his state post-conviction petition was denied. The court of appeals denied Ortega's application for a certificate of appealability, agreeing that the habeas petition was procedurally barred due to his failure to exhaust state court remedies.

    Copyright:

    Public Domain
    Download as PDF or read online from Scribd
    Flag for inappropriate content
    Download as pdf
    of 5

    F I L E D

    UNITED STATES COURT OF APPEALS

    United States Court of Appeals


    Tenth Circuit

    TENTH CIRCUIT

    JAN 11 2001

    PATRICK FISHER
    Clerk

    REYNALDO ORTEGA,
    Petitioner-Appellant,
    v.

    No. 00-2156

    JOE WILLIAMS, Warden, Lea County


    Correctional Facility; ATTORNEY
    GENERAL FOR THE STATE OF NEW
    MEXICO,

    (D.C. No. CIV-99-24BB/LFG)


    (D. N.M.)

    Respondent-Appellee.
    ORDER AND JUDGMENT*
    Before BALDOCK, HENRY, and LUCERO, Circuit Judges.**
    Petitioner Reynaldo Ortega, proceeding pro se, filed a petition for writ of habeas
    corpus under 28 U.S.C. 2254. The district court denied the petition and denied
    Petitioners application for a certificate of appealability. Now before us is Petitioners
    renewed motion. We deny Petitioners application for a certificate of appealability as
    This order and judgment is not binding precedent, except under the doctrines of
    law of the case, res judicata, and collateral estoppel. The court generally disfavors the
    citation of orders and judgments; nevertheless, an order and judgment may be cited under
    the terms and conditions of 10th Cir. R. 36.3.
    *

    After examining the briefs and appellate record, this panel has determined
    unanimously that oral argument would not materially assist the determination of this
    appeal. See Fed. R. App. P. 34(a)(2)(C); 10th Cir. R. 34.1(G). The case is therefore
    ordered submitted without oral argument.
    **

    well and dismiss his appeal.


    In January 1998, Petitioner pled guilty in New Mexico state court to trafficking a
    controlled substance. The court sentenced Petitioner to nine years imprisonment, an
    additional eight years enhancement pursuant to the state habitual offender act, and two
    years parole. The court suspended seven years of the total sentence. Petitioner did not
    challenge his conviction or sentence on direct appeal. Instead, in November 1998, he
    sought post-conviction relief in state district court. In his state petition, Petitioner
    claimed the trial court (1) failed to inform him of his right to trial on the allegations
    contained in the supplemental information, (2) failed to inform him of both the charges
    and his rights under the state habitual offender act, and (3) failed to determine if he was
    the same person charged in the supplemental information. The state court found
    Petitioner had pled guilty to trafficking a controlled substance and being a habitual
    offender with three prior convictions. The court further found that it had used the guilty
    plea proceeding form to conduct a thorough interrogation of Petitioner in open court
    before accepting the plea agreement. The court found that Petitioner signed the
    certification acknowledging that the judge personally advised him of the matters set forth
    in the form, that he understood his constitutional rights, that he was giving up rights by
    entering into a guilty plea, and that he desired to admit the allegations of the supplemental
    criminal information. In addition, the court found that Petitioners attorney certified he
    had conferred with Petitioner with reference to execution of the affidavit and explained
    2

    its contents in detail. Finally, the court found that the proceedings on the supplemental
    criminal information were conducted in strict compliance with New Mexico law.
    Accordingly, the court dismissed Petitioners petition on November 24, 1998.
    Following the courts dismissal of his petition, Petitioner had thirty days to petition
    for a writ of certiorari with the New Mexico Supreme Court. Petitioner did not file his
    petition for writ of certiorari, however, until January 11, 1999. The New Mexico
    Supreme Court denied the petition as untimely.
    Subsequently, Petitioner filed an application for writ of habeas corpus pursuant to
    28 U.S.C. 2254 in federal court. In his 2254 petition, Petitioner raised the same
    claims he raised in his state court post-conviction proceedings. A magistrate judge
    recommended the district court deny the petition as procedurally barred absent cause or
    prejudice because Petitioner failed to file a direct appeal and failed to timely file a
    petition for certiorari with the New Mexico Supreme Court following denial of state postconviction relief.1

    See Coleman v. Thompson, 501 U.S. 722, 735 n.1 (1991) (rule permitting
    federal court to address habeas petition if last state court to which petitioner presented
    federal claim rested primarily on resolution of those claims does not apply if petitioner
    failed to exhaust state remedies and court to which petitioner would be required to present
    his or her claims in order to meet exhaustion requirement would find claims procedurally
    barred; in such case there is procedural default for purposes of federal habeas regardless
    of decision of last state court to which petitioner actually presented his or her claims);
    Ballinger v. Kerby, 3 F.3d 1371, 1374 (10th Cir. 1993) (petitioners constitutional claim,
    raised before the state trial court in his state habeas petition, was procedurally defaulted
    by his failure to obtain timely review by the New Mexico Supreme Court).
    1

    Petitioner objected to the recommendation, arguing that he was unable to file his
    final appeal to the New Mexico Supreme Court because his facilitys lock-down status
    prevented him from utilizing the facilitys law library. The magistrate judge ordered
    further expansion of the record to determine the length and extent of the facilitys lockdown during the period in question. After consideration of the additional material, the
    district court determined that Petitioner failed to show cause and prejudice to excuse his
    procedural default. Accordingly, the district court adopted the magistrate judges
    previous recommendation and dismissed the petition.
    A petitioner may appeal the denial of a 2254 petition only if a circuit justice or
    judge issues a certificate of appealability. 28 U.S.C. 2253(c)(1)(A). We have
    thoroughly reviewed Petitioners application for a certificate of appealability, his brief,
    the magistrates findings and recommended disposition, the district courts order adopting
    the magistrates recommendation, and the entire record before us. We conclude
    Petitioners petition is procedurally barred substantially for the reasons set forth in the
    district courts order dismissing his petition. Accordingly, we deny Petitioners request
    for a certificate of appealability and dismiss the appeal.

    CERTIFICATE OF APPEALABILITY DENIED; APPEAL DISMISSED.


    Entered for the Court,
    4

    Bobby R. Baldock
    Circuit Judge

    You might also like