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Ortega v. Ryan

United States District Court, D. Arizona

November 17, 2016

Luis Enrique Ortega, Petitioner,
Charles Ryan, et al., Respondents.


          Eric J. MarKovich, United States Magistrate Judge

         Petitioner Luis Enrique Ortega filed a pro se Petition for a Writ of Habeas Corpus ("PWHC") pursuant to 28 U.S.C. § 2254 on November 29, 2013.[1](Doc. 1). Petitioner raises four grounds for relief: (1) double jeopardy; (2) ineffective assistance of trial counsel; (3) ineffective assistance of Rule 32 counsel; and (4) due process and equal protection violations. Respondents filed an Answer contending that the PWHC is untimely, and further that all of Petitioner's claims are procedurally defaulted or otherwise not cognizable on habeas review. The Court concludes that Petitioner's PWHC is untimely, and that Petitioner has not shown that he is entitled to equitable tolling. Accordingly, the petition will be denied.


         A. Trial, Sentencing, and Appeal

         On November 5, 2007, a Pima County Superior Court jury found Petitioner guilty of two counts of sexual abuse of a minor under 15, two counts of molestation of a child, two counts of sexual conduct with a minor under 15, and two counts of threatening or intimidating. (Doc. 9 Ex. C). Petitioner was sentenced to a combination of concurrent and consecutive presumptive prison terms for a total of 57 years. (Doc. 9 Ex. D).

         The Arizona Court of Appeals ("COA") summarized the facts of the case as follows:

On August 20, 2006, thirteen-year old C.Q. was visiting her mother in Tucson. That morning she was sleeping on a couch, when she was awakened by Ortega touching her arms, buttocks, and legs and trying to turn her over. She asked Ortega what he was doing, and although he stopped touching her, he did not answer. A few days later, on August 25, while C.Q. was sleeping, Ortega turned her "face up" and began touching her breasts and vagina over her clothes. Afterwards, Ortega told her not to tell anyone what happened. C.Q. returned home to Mexico the following day.
C.Q. next visited her mother in December 2006. On the 22nd or 23rd, Ortega took C.Q. to an abandoned trailer where he forcibly removed her clothes, touched her breasts, back, and legs, and had sexual intercourse with her. She did not tell her mother what had happened because Ortega had told both her and her brother F.Q. that he would either kill their mother or hurt them if they said anything.
On subsequent visits in February and March or April of 2007, Ortega engaged in similar acts with C.Q. and each time he threatened to harm her mother if C.Q. told her what he had done. On April 9, C.Q.'s mother was lying on the couch when she saw Ortega touch C.Q.'s buttocks over her pajamas. Shortly thereafter, she heard him walk into C.Q.'s bedroom. She screamed at him, and the two argued about what she had seen. When the mother called the police, Ortega put his clothes in his car and left the house.

(Doc. 9 Ex. J).

         Following his conviction, Petitioner sought review in the Arizona COA. Appointed counsel filed an opening brief raising two issues on appeal: (1) multiplicitous indictment/double jeopardy, arguing that counts three and four are lesser included offenses of count five, and (2) that the state exerted improper influence over F.Q.'s testimony, making his testimony unreliable. (Doc. 9 Ex. E). Petitioner later withdrew his argument that count three was a lesser included offense of count five, but continued to argue that counts four and five were multiplicitous. (Doc. 9 Exs. G, H). On October 14, 2008, the COA issued its decision vacating Petitioner's conviction and sentence on count four of the indictment, and affirming Petitioner's conviction and sentence on the remaining counts. (Doc. 9 Ex. J).

         B. First Petition for Post-Conviction Relief

         On May 8, 2009, Petitioner initiated proceedings in Pima County Superior Court for post-conviction relief ("PCR"). (Doc. 9 Ex. M). Appointed counsel filed the Rule 32 Petition on September 24, 2009, raising two claims of ineffective assistance of trial counsel. (Doc. 9 Ex. O). Petitioner alleged that trial counsel was ineffective for failing to interview the state's expert witness and was further ineffective for failing to conduct any pretrial interviews. Id.

         The trial court denied PCR on December 7, 2009. (Doc. 9 Ex. R). Petitioner filed a petition for review with the Arizona COA, and on April 27, 2010 the COA issued its decision granting review and denying relief. (Doc. 9 Ex. S). Petitioner did not file a petition for review in the Arizona Supreme Court. (Doc. 9 Ex. T).

         C. Second Petition for Post-Conviction Relief

         On August 20, 2010, Petitioner filed a second notice of PCR in Pima County Superior Court. (Doc. 9 Ex. U). Petitioner's notice stated that he was alleging a claim pursuant to Ariz. R. Crim. P. 32.1 (d), (e), (f), (g) or (h), specifically: newly discovered material facts, that his failure to timely file a notice of PCR was not his fault, a significant change in the law, and actual innocence. Id. In support of his claim, Petitioner stated that the trial court lacked subject matter jurisdiction to impose his sentence, that facts existed that established by clear and convincing evidence that he was actually innocent, and that he was also raising a claim of fundamental miscarriage of justice. Id.

         Appointed counsel filed a Rule 32 Petition on January 4, 2012.[2] (Doc. 9 Ex. V). Petitioner cited Ariz. R. Crim. P. 32.1(h) and argued that claims brought in successive PCR petitions are not precluded if the defendant demonstrates by clear and convincing evidence that no reasonable juror would have found the defendant guilty beyond a reasonable doubt. Id. Petitioner specifically argued that his conviction on count nine of the indictment ...

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