Ortega v. Williams, 10th Cir. (2001)
Ortega v. Williams, 10th Cir. (2001)
TENTH CIRCUIT
JAN 11 2001
PATRICK FISHER
Clerk
REYNALDO ORTEGA,
Petitioner-Appellant,
v.
No. 00-2156
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This order and judgment is not binding precedent, except under the doctrines of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.
**
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.
Bobby R. Baldock
Circuit Judge