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Ortiz v. State

United States District Court, D. Utah, Central Division

August 9, 2018

DANIEL ORTIZ, Petitioner,
v.
STATE OF UTAH, Respondent.

          MEMORANDUM DECISION & ORDER GRANTING MOTION TO DISMISS

          DAVID SAM UNITED STATES DISTRICT JUDGE

         Petitioner, Daniel Ortiz, requests federal habeas corpus relief. 28 U.S.C.S. § 2254 (2018). Having carefully considered the petition, the State's motion to dismiss, Petitioner's response, and relevant law, the Court agrees with the State that the petition should be dismissed as untimely. See id. § 2244(d).

         FACTS

         Based on his conviction in Utah state court of one count of aggravated robbery with the use of a dangerous weapon, Petitioner was sentenced to six-years-to-life. The Utah Court of Appeals affirmed his conviction, and the Utah Supreme Court denied certiorari on September 18, 2013. Petitioner had ninety days (by December 17) to file a petition for certiorari with the United States Supreme Court, which he did not do.

         Petitioner filed a petition for post-conviction relief in state court on November 21, 2013. However, the petition was dismissed on May 6, 2014, when he failed to pay the filing fee. Petitioner had thirty days to appeal (by June 5) but did not.

         This federal habeas petition was filed over three years later on June 12, 2017.

         ANALYSIS

         Federal statute imposes “a 1-year period of limitation . . . to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court.” Id. The period generally runs from “the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review.” Id. That occurred here on December 17, 2013, ninety days after the Utah Supreme Court denied a writ of certiorari, during which Petitioner could have sought review in the United States Supreme Court. Therefore, Petitioner would have had until December 17, 2014 to file his federal petition, excepting applicable tolling.

         1. Statutory Tolling

         The one-year limitation period is tolled while a state post-conviction petition is pending. Id. The statute provides that “[t]he time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward any period of limitation under this subsection.” Id. Petitioner filed his state post-conviction petition on November 21, 2013, before his federal limitation period began to run, thereby tolling the federal period until his state post-conviction case concluded. See id. Therefore, when his state post-conviction petition was dismissed on May 6, 2014, and the thirty days to appeal expired on June 5, 2014, Petitioner still had the entire one-year limitation period remaining, giving him until June 5, 2015 to file his federal petition. He did not file his federal petition until January 12, 2017, more than eighteen months after the federal limitations period expired. His petition is therefore untimely.

         Despite these facts, Petitioner offers two arguments for his petition's timeliness, neither of which is availing. First, he contends that his direct appeal is still pending before the United States Supreme Court, so his federal limitation period never began to run at all because his state criminal case is not yet final. This argument rests on a January 13, 2014 filing in the state criminal court styled “motion for extension of time to file writ of certiorari” and captioned “In the United States Supreme Court.” The certificate of service on this motion lists the United States Supreme Court, and the Court accepts as true--for this order only--that this same document was in fact sent to the United States Supreme Court on January 13, 2014.

         However, Petitioner's motion for time extension was already untimely when he sent it. Rule 13 of the Rules of the Supreme Court of the United States states that a certiorari petition from the ruling of a state court of last resort must be filed within ninety days “after entry of the order denying discretionary review.” Rs. of S.Ct. 13(1). Thus, Petitioner's time to file a certiorari petition expired on December 17, 2013--ninety days after the Utah Supreme Court's ruling. The rule also provides that “[t]he Clerk will not file any petition for a writ of certiorari that is jurisdictionally out of time.” Id. 13(2). Moreover, any extension request “must be filed with the Clerk at least 10 days before the date the petition is due, ” id. 13(5), which here would have been by December 7, 2013. Petitioner's January 13, 2014 extension request was more than a month past its due date when he sent it and it therefore had no effect on the finality of his state criminal case or the federal habeas limitation period.

         Petitioner's second argument for timeliness is similarly misplaced. Petitioner argues that his criminal case is also not yet final because he has made repeated requests to the state court for transcripts that have not been met. The record reflects at least four transcript requests having been made at various times to various courts, which responded with instructions regarding how to request transcripts--instructions Petitioner appears to have not followed. Regardless of the details of these requests and their status, they do not affect the running of limitation period, which starts from the day “on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review.” 28 U.S.C.S. § 2244(d)(1)(A) (2018). That unquestionably occurred in this case on December 17, 2013. And once it did, the only relevant issue for purposes of the limitation period was whether Petitioner had a valid state post-conviction action pending, which he did until May 6, 2014, after which he did not appeal.

         2. ...


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