Opinion
3:10-cv-00660-HDM-RAM.
December 16, 2010
ORDER
This action is a pro se petition for a writ of habeas corpus filed pursuant to 28 U.S.C. § 2254, by a Nevada state prisoner. Petitioner has paid the filing fee for this action. (Docket #2).
The Court has reviewed the petition. The petition shall now be served on respondents. A petition for federal habeas corpus should include all claims for relief of which petitioner is aware. If petitioner fails to include such a claim in his petition, he may be forever barred from seeking federal habeas relief upon that claim. See 28 U.S.C. § 2254(b) (successive petitions).
In addition, the Court has reviewed petitioner's application to proceed in forma pauperis. (Docket #4). Petitioner has paid the filing fee for this action (Docket #2), making the application to proceed in forma pauperis unnecessary in this case. Petitioner's application to proceed in forma pauperis is denied.
Petitioner has also filed a motion for the appointment of counsel. (Docket #5). There is no constitutional right to appointed counsel for a federal habeas corpus proceeding. Pennsylvania v. Finley, 481 U.S. 551, 555 (1987); Bonin v. Vasquez, 999 F.2d 425, 428 (9th Cir. 1993). The decision to appoint counsel is generally discretionary. Chaney v. Lewis, 801 F.2d 1191, 1196 (9th Cir. 1986), cert. denied, 481 U.S. 1023 (1987); Bashor v. Risley, 730 F.2d 1228, 1234 (9th Cir.), cert. denied, 469 U.S. 838 (1984). However, counsel must be appointed if the complexities of the case are such that denial of counsel would amount to a denial of due process, and where the petitioner is a person of such limited education as to be incapable of fairly presenting his claims. See Chaney, 801 F.2d at 1196; see also Hawkins v. Bennett, 423 F.2d 948 (8th Cir. 1970). The petition on file in this action is well-written and sufficiently clear in presenting the issues that petitioner wishes to bring. The issues in this case are not complex. It does not appear that counsel is justified in this instance. The motion shall be denied.
IT IS THEREFORE ORDERED that the Clerk shall ELECTRONICALLY SERVE the petition (Docket #2) upon the respondents.
IT IS FURTHER ORDERED that respondents shall have forty-five (45) days from entry of this order within which to answer, or otherwise respond to, the petition. In their answer or other response, respondents shall address any claims presented by petitioner in his petition. Respondents shall raise all potential affirmative defenses in the initial responsive pleading, including lack of exhaustion and procedural default. Successive motions to dismiss will not be entertained. If an answer is filed, respondents shall comply with the requirements of Rule 5 of the Rules Governing Proceedings in the United States District Courts under 28 U.S.C. § 2254. If an answer is filed, petitioner shall have forty-five (45) days from the date of service of the answer to file a reply.
IT IS FURTHER ORDERED that, henceforth, petitioner shall serve upon the Attorney General of the State of Nevada a copy of every pleading, motion, or other document he submits for consideration by the Court. Petitioner shall include with the original paper submitted for filing a certificate stating the date that a true and correct copy of the document was mailed to the Attorney General. The Court may disregard any paper that does not include a certificate of service. After respondents appear in this action, petitioner shall make such service upon the particular Deputy Attorney General assigned to the case.
IT IS FURTHER ORDERED that petitioner's application to proceed in forma pauperis (Docket #4) is DENIED. IT IS FURTHER ORDERED that petitioner's motion for the appointment of counsel (Docket #5) is DENIED.
Dated this 16th day of December, 2010.
Exhibit
EXHIBIT #1
PAGE: 013 MINUTES DATE: 05/09/08 CRIMINAL COURT MINUTES C-206972-C STATE OF NEVADA vs Ortiz-Morales, Carlos CONTINUED FROM PAGE: 012 [REDACTED] HEARD BY: David Barker, Judge; Dept. 18 OFFICERS: Tia Everett/te, Relief Clerk Richard Kangas, Reporter/Recorder PARTIES: STATE OF NEVADA Y 006163 Weckerly, Pamela C. Y 0001 D1 Ortiz-Morales, Carlos Y PUBDEF Public Defender Y 006762 O'Brien, Timothy P. Y Mr. Obrien advised the Defendant would like to withdraw his plea. Court noted, a motion has not been filed therefore sentencing shall proceed. Statements by the Defendant regarding withdrawing plea. Court STATED he finds no legal basis to delay sentencing. Speaker Albino Hernandez. DEFT. ORTIZ ADJUDGED GUILTY of COUNT 1 — FIRST DEGREE KIDNAPPING WITH USE OF A DEADLY WEAPON (F), COUNT 2 — FIRST DEGREE KIDNAPPING WITH USE OF A DEADLY WEAPON (F), AND COUNT 3 — MURDER WITH USE OF A DEADLY WEAPON (F). Matter submitted. COURT ORDERED, in addition to the $25.00 Administrative Assessment Fee, $150.00 DNA analysis fee including testing to determine genetic markers, Deft SENTENCED AS TO COUNT 1 — a MINIMUM of SIXTY (60) MONTHS and a MAXIMUM of LIFE in the Nevada Department of Corrections (NDC) plus an equal and CONSECUTIVE MINIMUM of SIXTY (60) MONTHS and a MAXIMUM of LIFE for use of a deadly weapon; AS TO COUNT 2 — a MINIMUM of SIXTY (60) MONTHS and a MAXIMUM of LIFE in the Nevada Department of Corrections (NDC) plus an equal and CONSECUTIVE MINIMUM of SIXTY (60) MONTHS and a MAXIMUM of LIFE for use of a deadly weapon; CONSECUTIVE TO COUNT 1; AS TO COUNT 3 — a MINIMUM of TWO HUNDRED (240) MONTHS and a MAXIMUM of LIFE in the Nevada Department of Corrections (NDC) plus an equal and CONSECUTIVE MINIMUM of TWO HUNDRED FORTY (240) MONTHS and a MAXIMUM of LIFE for use of a deadly weapon; CONSECUTIVE TO COUNTS 1 AND 2. BOND, if any, EXONERATED. CASE CLOSED.CLERK'S NOTE: minutes corrected to reflect the correction to the deadly weapon enhancement of count 3. tia everett 5/15/08
Exhibit-1A
IN THE SUPREME COURT OF THE STATE OF NEVADA CARLOS ORTIZ, No. 54786 Appellant, vs. THE STATE OF NEVADA, Respondent. __________________________________ORDER OF AFFIRMANCE
This is a proper person appeal from an order of the district court denying a post-conviction petition for a writ of habeas corpus. Eighth Judicial District Court, Clark County; David B. Barker, Judge.Appellant filed his petition on June 1, 2009, more than one year after the judgment of conviction was filed on May 21, 2008. Thus, appellant's petition was untimely filed. See NRS 34.726(1);Gonzales v. State, 118 Nev. 590, 593, 53 P.3d 901, 902-03 (2002). Appellant's petition was procedurally barred absent a demonstration of cause for the delay and prejudice. See NRS 34.726(1). Appellant did not attempt to demonstrate cause for the delay. Therefore, the district court did not err in denying the petition as procedurally time-barred. Accordingly, we
No direct appeal was taken.
ORDER the judgment of the district court AFFIRMED.
______________________________, J. Hardesty ______________________________, J. Douglas ______________________________, J. Pickering cc: Hon. David B. Barker, District Judge Carlos Ortiz Attorney General/Carson City Clark County District Attorney Eighth District Court ClerkEXHIBIT # 2 LAS VEGAS METROPOLITAN POLICE DEPARTMENT ARREST REPORT
[X] City [] County [X] Adult [] Juvenile Sector/Beat _______ ID/EVENT# ARRESTEE'S NAME (Last, First, Middle) S.S.# 1476674 Ortiz, Carlos 555-49-0388 ARRESTEE'S ADDRESS (Number, Street, City, State, Zip Code) 730 Effinger St. Las vegas, NV 89101 CHARGES: Murder WDW, Kidnap WDW (2cts.) OCCURRED: DATE DAY OF WEEK TIME LOCATION OF ARREST (Number, Street, City, State, Zip Code) 09/25/2004 SAT. 0140 401 N. Eastern Ave. Las Vegas, NV 89101 RACE SEX D.O.B. HT WT HAIR EYES PLACE OF BIRTH H M 07/04/1960 507 200 Bro Bro Mexico CIRCUMSTANCES OF ARREST On 09/25/2004, Officers R Rasmussen (P# 6996) and B. LeBlanc (P# 7316) were conducting a traffic stop on a vehicle at 401 N. Eastern. They had stopped a vehicle operated by David Griffin. The officers had issued Mr. Griffin some traffic citations and were sitting in their marked patrol vehicle in the parking lot of 401 N. Eastern completing paperwork. Both officers heard a vehicle horn honk and saw a 2 door Chevrolet Cavalier pulling along the passenger side of their vehicle. They heard a woman scream and saw a Hispanic woman driving the car that had pulled up. In the front passenger seat of that car, officers saw a Hispanic male, later identified as Carlos Ortiz. Both officers saw that Carlos Ortiz had grabbed the driver, later identified as Maria Ortiz, by her hair and pulled her head towards his lap. The officers saw Carlos Ortiz raise a gun in his right hand and point it at the head of Maria Ortiz. They saw Carlos Ortiz fire a shot which struck Maria Ortiz in her head. The officers exited their vehicle and ordered Carlos Ortiz to drop the gun. They saw a young girl who was in the back seat of the Ortiz car climb between Carlos Ortiz and Maria Ortiz. Carlos Ortiz threw the gun out the passenger side window of the car and was taken into custody by Officer Rasmussen. Officer LeBlanc pulled Maria Ortiz from the car and saw a large amount of blood coming from her head but could not tell where the injury was. Medical assistance was requested but Maria Ortiz died at the scene.The girl in the back seat of the car was identified as Ruby Ortiz. She is the child of Carlos and Maria Ortiz. She told Detective T. Hendrix that earlier in the evening she had been at a friend's house for a party. Her father, Carlos Ortiz, had come to the party to pick her up. While he was there, he drank some beer but she was unsure how much. He took her to his house and her mother arrived to pick her up. Carlos and Maria Ortiz began to argue and than began to physically fight in front of the residence. They wrestled on the ground and Carlos Ortiz punched Maria Ortiz several times. Carlos Ortiz pulled a gun and forced Maria and Ruby Ortiz into the car owned by Maria. As Maria was getting in the car, Ruby saw Carlos grabbed her head and slam in into the side of the car. When they got into the car, Carlos kept the gun in his right hand and by his side and demanded that Maria start to drive.
Maria Ortiz drove her car but Carlos Ortiz was not specific where they were to go. As she drove, Carlos Ortiz began to yell at and threaten Maria. As she drove into the area of 401
ARRESTING OFFICER(S) P# APPROVED BY CONNECTING RPTS. (Type or Event Number) M MCNETT 3550 M1928T Officers report, witness statements T KYGER 4191 LVMPO 602 (REV. 12-90) * AUTOMATED N. Eastern, she saw a marked police car in the parking lot. She swerved into the parking lot and tried to pull alongside the police car. As she did, Carlos Ortiz grabbed her hair and pulled her head towards her lap. He raised the gun he had in his right hand and fired a shot into her head. Police took him into custody.A records check shows that there was a previous crime report taken under event number 010720-1484 in which Carlos Ortiz had punched Maria Ortiz and threatened her with a gun. Maria Ortiz had been granted a restraining order against Carlos Ortiz. This order was served on Carlos Ortiz on 08/18/2004 and remained in effect until 11/08/2004. In addition, Carlos Ortiz has several previous arrests for domestic violence related crimes in California.
Carlos Ortiz was photographed at the scene to show visible evidence and any injuries.
Carlos Ortiz was arrested for Murder with deadly weapon and 2 counts of Kidnap with Deadly weapon.
EXHIBIT #3
GMEM Defendant.
DAVID ROGER DISTRICT ATTORNEY Nevada Bar #002781 PAMELA WECKERLY Chief Deputy District Attorney Nevada Bar #006163 200 Lewis Avenue Las Vegas, NV 89155-2212 (702) 671-2500 Attorney for Plaintiff DISTRICT COURT CLARK COUNTY, NEVADA THE STATE OF NEVADA, ) ) Plaintiff, ) CASE NO: C206972 ) DEPT NO: XVIII — vs — ) ) CARLOS ORTIZ, ) #1476674 ) ) ) ____________________ )GUILTY PLEA AGREEMENT
I hereby agree to plead guilty to: COUNTS 1 2: FIRST DEGREE KIDNAPPING WITH USE OF A DEADLY WEAPON (Category A Felony — NRS 200.310, 200.320, 193.165); and COUNT 3: MURDER WITH USE OF A DEADLY WEAPON (Category A Felony — NRS 200.101, 200.030, 193.165), as more fully alleged in the charging document attached hereto as Exhibit "1".My decision to plead guilty is based upon the plea agreement in this case which is as follows: I stipulate to a sentence of life imprisonment with parole eligibility after five (5) years has been served, plus an equal and consecutive sentence of life imprisonment with parole eligibility after five (5) years has been served, meaning a sentence of life imprisonment with parole eligibility after ten (10) years has been served, for both of the FIRST DEGREE KIDNAPPING WITH USE OF A DEADLY WEAPON counts. I further stipulate to a sentence of life imprisonment with the possibility of parole after twenty (20) years has been served plus an equal and consecutive sentence of life imprisonment with the possibility of parole after twenty (20) years has been served, meaning a sentence of life imprisonment with parole eligibility after 40 years has been served, for the FIRST DEGREE MURDER WITH USE OF A DEADLY WEAPON count. I further stipulate that I will be sentence to all counts consecutively, meaning that my total sentence will be life imprisonment with parole eligibility after a minimum of 60 years has been served in the Nevada Department of Corrections. In exchange, the State will not seek the death penalty or a sentence of life without the possibility of parole on the FIRST DEGREE MURDER WITH USE OF A DEADLY WEAPON count.
CONSEQUENCES OF THE PLEA
I understand that by pleading guilty I admit the facts which support all the elements of the offense(s) to which I now plead as set forth in Exhibit "1".
I understand that as a consequence of my plea of guilty the Court must sentence me to imprisonment in the Nevada Department of Corrections, as follows: COUNT 1 — FIRST DEGREE KIDNAPPING WITH USE OF A DEADLY WEAPON: for a minimum term of not less than for the FIRST DEGREE KIDNAPPING WITH USE OF A DEADLY WEAPON count, plus an equal and consecutive minimum term of not less than FIVE (5) years and a maximum term of not more than FIFTEEN (15) years for the deadly weapon enhancement. The minimum term of imprisonment may not exceed forty percent (40%) of the maximum term of imprisonment.
COUNT 2 — FIRST DEGREE KIDNAPPING WITH USE OF A DEADLY WEAPON: for a minimum term of not less than FIVE (5) years and a maximum term of not more than FIFTEEN (15) years for the FIRST DEGREE KIDNAPPING WITH USE OF A DEADLY WEAPON count, plus an equal and consecutive minimum term of not less than FIVE (5) years and a maximum term of not more than FIFTEEN (15) years, for the deadly weapon enhancement. The minimum term of imprisonment may not exceed forty percent (40%) of the maximum term of imprisonment.
COUNT 3 — FIRST DEGREE MURDER WITH USE OF A DEADLY WEAPON: for a minimum term of not less than TWENTY (20) years and a maximum term of not more than LIFE, for the FIRST DEGREE MURDER WITH USE OF A DEADLY WEAPON count, plus an equal and consecutive term of not less than TWENTY (20) years and a maximum term of not more than LIFE for the deadly weapon enhancement, to run consecutively to Counts 1 2. The minimum term of imprisonment may not exceed forty percent (40%) of the maximum term of imprisonment.
I understand that the law requires me to pay an Administrative Assessment Fee.
I understand that, if appropriate, I will be ordered to make restitution to the victim of the offense(s) to which I am pleading guilty and to the victim of any related offense which is being dismissed or not prosecuted pursuant to this agreement. I will also be ordered to reimburse the State of Nevada for any expenses related to my extradition, if any.
I understand that I am not eligible for probation for the offense to which I am pleading guilty.
I also understand that I must submit to blood and/or saliva tests under the Direction of the Division of Parole and Probation to determine genetic markers and/or secretor status.
I understand that if more than one sentence of imprisonment is imposed and I am eligible to serve the sentences concurrently, the sentencing judge has the discretion to order the sentences served concurrently or consecutively.
I also understand that information regarding charges not filed, dismissed charges, or charges to be dismissed pursuant to this agreement may be considered by the judge at sentencing.
I have not been promised or guaranteed any particular sentence by anyone. I know that my sentence is to be determined by the Court within the limits prescribed by statute.
I understand that if my attorney or the State of Nevada or both recommend any specific punishment to the Court, the Court is not obligated to accept the recommendation.
I understand that if the State of Nevada has agreed to recommend or stipulate a particular sentence or has agreed not to present argument regarding the sentence, or agreed not to oppose a particular sentence, or has agreed to disposition as a gross misdemeanor when the offense could have been treated as a felony, such agreement is contingent upon my appearance in court on the initial sentencing date (and any subsequent dates if the sentencing is continued). I understand that if I fail to appear for the scheduled sentencing date or I commit a new criminal offense prior to sentencing the State of Nevada would regain the full right to argue for any lawful sentence.
I understand if the offense(s) to which I am pleading guilty to was committed while I was incarcerated on another charge or while I was on probation or parole that I am not eligible for credit for time served toward the instant offense(s).
I understand that as a consequence of my plea of guilty, if I am not a citizen of the United States, I may, in addition to other consequences provided for by federal law, be removed, deported, excluded from entry into the United States or denied naturalization.
I understand that the Division of Parole and Probation will prepare a report for the sentencing judge prior to sentencing. This report will include matters relevant to the issue of sentencing, including my criminal history. This report may contain hearsay information regarding my background and criminal history. My attorney and I will each have the opportunity to comment on the information contained in the report at the time of sentencing. Unless the District Attorney has specifically agreed otherwise, then the District Attorney may also comment on this report.
WAIVER OF RIGHTS
By entering my plea of guilty, I understand that I am waiving and forever giving up the following rights and privileges:
1. The constitutional privilege against self-incrimination, including the right to refuse to testify at trial, in which event the prosecution would not be allowed to comment to the jury about my refusal to testify.
2. The constitutional right to a speedy and public trial by an impartial jury, free of excessive pretrial publicity prejudicial to the defense, at which trial I would be entitled to the assistance of an attorney, either appointed or retained. At trial the State would bear the burden of proving beyond a reasonable doubt each element of the offense charged.
3. The constitutional right to confront and cross-examine any witnesses who would testify against me.
4. The constitutional right to subpoena witnesses to testify on my behalf.
5. The constitutional right to testify in my own defense.
6. The right to appeal the conviction, with the assistance of an attorney, either appointed or retained, unless the appeal is based upon reasonable constitutional jurisdictional or other grounds that challenge the legality of the proceedings and except as otherwise provided in subsection 3 of NRS 174.035.
VOLUNTARINESS OF PLEA
I have discussed the elements of all of the original charge(s) against me with my attorney and I understand the nature of the charge(s) against me.
I understand that the State would have to prove each element of the charge(s) against me at trial.
I have discussed with my attorney any possible defenses, defense strategies and circumstances which might be in my favor.
All of the foregoing elements, consequences, rights, and waiver of rights have been thoroughly explained to me by my attorney.
I believe that pleading guilty and accepting this plea bargain is in my best interest, and that a trial would be contrary to my best interest.
I am signing this agreement voluntarily, after consultation with my attorney, and I am not acting under duress or coercion or by virtue of any promises of leniency, except for those set forth in this agreement.
I am not now under the influence of any intoxicating liquor, a controlled substance or other drug which would in any manner impair my ability to comprehend or understand this agreement or the proceedings surrounding my entry of this plea.
My attorney has answered all my questions regarding this guilty plea agreement and its consequences to my satisfaction and I am satisfied with the services provided by my attorney.
DATED this _____ day of March, 2008.
____________________________ CARLOS ORTIZ Defendant AGREED TO BY: ________________________ PAMELA WECKERLY Chief Deputy District Attorney Nevada Bar #006163CERTIFICATE OF COUNSEL:
I, the undersigned, as the attorney for the Defendant named herein and as an officer of the court hereby certify that:
1. I have fully explained to the Defendant the allegations contained in the charge(s) to which guilty pleas are being entered.
2. I have advised the Defendant of the penalties for each charge and the restitution that the Defendant may be ordered to pay.
3. All pleas of guilty offered by the Defendant pursuant to this agreement are consistent with the facts known to me and are made with my advice to the Defendant.
4. To the best of my knowledge and belief, the Defendant:
a. Is competent and understands the charges and the consequences of pleading guilty as provided in this agreement.
b. Executed this agreement and will enter all guilty pleas pursuant hereto voluntarily.
c. Was not under the influence of intoxicating liquor, a controlled substance or other drug at the time I consulted with the defendant as certified in paragraphs 1 and 2 above.
Dated: This _____ day of March, 2008.
____________________________ ATTORNEY FOR DEFENDANT