Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

United States of America v. Jose Ortiz

December 27, 2012

UNITED STATES OF AMERICA, RESPONDENT,
v.
JOSE ORTIZ, PETITIONER.



The opinion of the court was delivered by: Hon. George W. Lindberg

MEMORANDUM OPINION AND ORDER

Before the Court is petitioner Jose Ortiz's ("Ortiz") motion, and amendment to that motion, pursuant to 28 U.S.C. § 2255 to vacate, set aside, or correct his sentence in the underlying criminal proceeding, United States v. Ortiz, 07 CR 658 ("§ 2255 petition"). Ortiz requested an evidentiary hearing on his § 2255 petition, but the Court finds that a hearing is not necessary. See Almonacid v. United States, 476 F.3d 518, 521 (7th Cir. 2007)("If it plainly appears from the motion, any attached exhibits, and the record of prior proceedings that the moving party is not entitled to relief the judge must dismiss the motion."). Additionally, Ortiz failed to supply the Court with a detailed and specific affidavit that demonstrated actual proof of the allegations in his § 2255 petition. See Galbraith v. United States, 313 F.3d 1001, 1009 (7th Cir.) ("It is the rule of the Court that in order for a hearing to be granted, the petition must be accompanied by a detailed and specific affidavit which shows that the petitioner had actual proof of the allegations that go beyond mere unsupported allegations."). For the reasons set forth more fully below, the § 2255 petition is denied.

I. Relevant Facts

On February 6, 2008, Ortiz and five co-defendants were charged with a drug conspiracy in an eighteen count indictment. On January 20, 2010, Ortiz entered a blind plea of guilty to all ten counts (Counts I, II, VI, VII, VIII, IX, XI, XIII, XVI, XVII) alleged against him in the indictment. Ortiz pled guilty to the following charges: one count of conspiracy to possess with intent to distribute 5 kilograms or more of a mixture containing cocaine base in violation of 21 U.S.C. § 841(a)(1) (Count I); four counts of knowingly and intentionally possessing with intent to distribute mixtures containing cocaine in violation of 21 U.S.C. § 841(a)(1) (Counts II, IX, XI, XVII); and five counts of knowingly and intentionally using a telephone in commission of a felony, namely facilitating the ongoing drug conspiracy, in violation of 21 U.S.C. § 843(b) (Counts VI -VIII, XIII, XVI).

All ten counts stem from a drug conspiracy that began in 2000 and continued through approximately October 5, 2007. As part of the conspiracy, Ortiz received multi-kilogram shipments of cocaine from a supplier in Mexico. Ortiz stored the cocaine in a garage in Evanston, and provided the cocaine to some of his co-conspirators, who distributed it directly to customers.

On November 27, 2007, Ortiz provided information to the government pursuant to a proffer letter. Attorney Joseph R. Lopez ("Lopez") first filed his appearance on behalf of Ortiz on December 4, 2008. Mr. Lopez represented Ortiz during a second proffer meeting with the government on November 5, 2009. Mr. Lopez also represented Ortiz during his change of plea hearing, sentencing, and direct criminal appeal.

On January 20, 2010, Ortiz entered a blind plea of guilty to all ten counts charged against him. On September 1, 2010, this Court sentenced Mr. Ortiz to 324 months of imprisonment. On direct appeal, the Seventh Circuit affirmed the sentence and this Court's decisions to apply a supervisory role enhancement and not to give Ortiz credit for acceptance of responsibility.

II. Legal Analysis

Ortiz filed a pro se § 2255 petition seeking to vacate his guilty plea and sentence based on allegations of: (1) ineffective assistance of counsel; (2) a defective indictment; and (3) that Title 21 was never enacted into positive law. Ortiz's appointed counsel filed an amendment to the pro se § 2255 petition that included additional allegations of ineffective assistance of counsel.

A. Claim II - A Defective Indictment

Ortiz claims that the indictment in the underlying criminal case, 07 CR 658, was defective because it did not include a nexus to interstate commerce. As an initial matter, this claim is procedurally defaulted because Ortiz did not raise it in the underlying criminal case, or on direct appeal. Nwafor v. United States, No. 95-3864, 1997 WL 2678798, *1 (7th Cir. May 7, 1997); see also United States v. Ortiz, No. 10-3110, 2011 WL 3346823, at *1 (7th Cir. Aug. 4, 2011). Ortiz also has not established adequate cause for his failure to raise this issue prior to the instant § 2255 petition, or that he will suffer prejudice because of the procedural default. See United States v. Frady, 456 U.S. 152, 166-168 (1982).

Even if this Court were to excuse the procedural default and consider this argument on the merits, it would fail. Offenses charged under Title 21, U.S.C. §§ 841, 843, and 846 do not require an interstate commerce nexus as an element of the offense. See United States v. Cox, 536 F.3d 723, 727-728 (7th Cir. 2008); United States v. Campbell, 534 F.3d 599, 605-606 (7th Cir. 2008).

B. Claim III - Title 21 is not Positive Law

Next, Ortiz argues that the criminal indictment, conviction, and sentence were invalid because Title 21 of the criminal code was never enacted into positive law. Similar to his defective indictment claim, this claim is procedurally defaulted because it was not raised in prior proceedings before this Court, or on direct appeal, and Ortiz has not demonstrated any cause or prejudice stemming from the procedural default. Nwafor, 1997 WL 2678798 at *1. This claim also fails on the merits because Title 21 is a valid statute and was properly enacted into law. Henriquez v. United States, No. 03 C 478, 2003 WL 21242722 at *2-3 (S.D.N.Y. May 29, 2003)(finding defendant's argument that the court lacked subject matter jurisdiction because Section 846 ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.