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Ortiz v. United States

United States District Court, M.D. Florida, Fort Myers Division

May 10, 2017

MARIA ESTER ORTIZ, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          OPINION AND ORDER

          JOHN E. STEELE UNITED STATES DISTRICT JUDGE.

         This 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)[1] filed on June 28, 2016. The government filed a Response in Opposition to Motion (Cv. Doc. #8) on September 27, 2016.

         I.

         On 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.

         On 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.

         Petitioner 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[1] brief. (Cr. Doc. #103); United States v. Ortiz, 178 F.App'x 889 (11th Cir. 2006).

         Subsequently, 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).

         On 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.)

         II.

         Under 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 governmental action;
(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 ...

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