United States District Court, M.D. Florida, Fort Myers Division
OPINION AND ORDER
E. STEELE UNITED STATES DISTRICT JUDGE.
matter comes before the Court on petitioner's Motion
Under 28 U.S.C. Section 2255 to Vacate, Set Aside or Correct
Sentence by a Person in Federal Custody (Cv. Doc. #1; Cr.
Doc. #143) filed on June 28, 2016. The government
filed a Response in Opposition to Motion (Cv. Doc. #8) on
September 27, 2016.
September 1, 2004, a federal grand jury in Fort Myers,
Florida returned a two-count Indictment (Cr. Doc. #6)
charging petitioner and her co-defendant with conspiracy to
possess with intent to distribute, and to distribute 500
grams or more of cocaine, and possession with intent to
distribute and distribution of 500 grams or more of cocaine.
February 3, 2005, petitioner appeared before the Magistrate
Judge and entered a plea of guilty as to Count One, with the
government to move for dismissal of Count Two at sentencing.
(Cr. Doc. #61.) The plea was accepted and petitioner was
adjudicated guilty. (Cr. Doc. #64.) On May 31, 2005, the
Court sentenced petitioner to a term of imprisonment of 189
months as to Count One, followed by a term of supervised
release, and dismissed Count Two on the government's
motion. (Cr. Doc. #71.) Judgment (Cr. Doc. #73) was filed on
June 1, 2005.
filed a Notice of Appeal (Cr. Doc. #74), and the Court
appointed new counsel on appeal (Cr. Doc. #85). On April 26,
2006, the Eleventh Circuit affirmed petitioner's
conviction and sentence after review of counsel's
Anders brief. (Cr. Doc. #103); United States
v. Ortiz, 178 F.App'x 889 (11th Cir. 2006).
on March 3, 2008, petitioner sought the retroactive
application of Amendment 706 of the United Sentencing
Guidelines to her sentence pursuant to 18 U.S.C. §
3582(c)(2), and the Court appointed counsel to review
petitioner's eligibility. (Cr. Docs. ## 106, 112.) On
July 7, 2008, the Court denied the motion because
petitioner's career offender status placed her in the
same guideline range. (Cr. Doc. #123.) Petitioner appealed
the Opinion and Order, and the Eleventh Circuit affirmed on
May 6, 2009. (Cr. Doc. #129); United States v.
Ortiz, 327 F.App'x 167, 167 (11th Cir. 2009).
April 9, 2015, the Court again appointed counsel to review
petitioner's eligibility for a reduction in her sentence
under Amendment 782. (Cr. Doc. #139.) On January 6, 2016,
after notice of a determination that a motion would not be
filed on behalf of petitioner because she was sentenced as a
career offender and not based on the drug quantity table in
U.S. Sentencing Guidelines Manual § 2D1.1(c), the Court
relieved the Federal Public Defender as counsel of record.
(Cr. Doc. #142.)
the Antiterrorism and Effective Death Penalty Act of 1996
(AEDPA), federal prisoners have one year from the latest of
any of four events to file a § 2255 Motion:
(1) the date on which the judgment of
conviction becomes final;
(2) the date on which the impediment to
making a motion created by governmental action in violation
of the Constitution or laws of the United States is removed,
if the movant was prevented from making a motion by such
(3) the date on which the right asserted was
initially recognized by the Supreme Court, if that right has
been newly recognized by the Supreme Court and made
retroactively applicable to cases on collateral review; or
(4) the date on which the facts supporting
the claim or claims presented could have been discovered
through the ...