United States v. Ortiz

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UNITED STATES OF AMERICA v. ELVIS ORTIZ

CRIMINAL ACTION No. 05-cr-044-10

United States District Court, E.D. Pennsylvania

November 29, 2022

MEMORANDUM

GENE E. K. PRATTER UNITED STATES DISTRICT JUDGE

Elvis Ortiz has filed several motions seeking post-conviction relief and arguing, inter alia, that the Court should vacate his conviction under 18 U.S.C. § 924(c) and grant him a plenary resentencing hearing. The Government agrees that, following the Supreme Court's decision in United States v. Davis, 139 S.Ct. 2319 (2019), Mr Ortiz's conviction for a violation of 18 U.S.C. § 924(c) should be vacated, as should his related seven-year sentence, but the Government disagrees that a plenary resentencing hearing is appropriate in these circumstances. For the reasons that follow, the Court finds only that vacatur of Mr. Ortiz's § 924(c) conviction and his sevenyear consecutive sentence is warranted and therefore grants Mr. Ortiz's petition in part and denies it in part.

Background

In 2005, Mr. Ortiz was indicted on 10 counts of a 26-count indictment. The charges against Mr. Ortiz arose out of his membership in the Almighty Latin King and Queen Nation (ALKQN), a criminal enterprise, and his erstwhile role as bodyguard for the gang's leader.

Specifically Mr. Ortiz participated, alongside other Latin Kings, in crimes between late 2003 to early 2004. First, in December 2003, Mr. Ortiz participated in the kidnapping and beating of another Latin King at the direction of the Pennsylvania statewide leader of the ALKQN. The victim of the beating escaped the basement where he was being held and was taken to a hospital while Mr. Ortiz, who was intended to stay guard, was asleep. Although Mr. Ortiz and other ALKQN members attempted to find and kill the escapee, they could not locate him. These events formed the basis of Count 13 of the indictment, conspiracy to commit murder in aid of racketeering, and Count 14, using and carrying a firearm during a violent crime, in violation of 18 U.S.C. § 924(c).

In March 2004, at the direction of the Pennsylvania ALKQN leader, Mr. Ortiz and other Pennsylvania-based Latin Kings traveled to Vineland, New Jersey, to kill rival Latin Kings in that area. Around the same time, Mr. Ortiz also participated in the kidnapping of a Vineland Latin Queen who had offended the Pennsylvania gang-leader. Mr. Ortiz ordered the woman to report to Philadelphia, where he confiscated her keys, participated in a sham trial for her violation of various gang rules, and approved, together with his compatriots, her brutal beating for seven to eight minutes.

On January 9, 2006, the Government filed an information pursuant to 21 U.S.C. § 851, which provided Mr. Ortiz notice that he had three prior felony drug convictions, such that, if he were convicted on Count 7 of the indictment, he would be subject to a mandatory life sentence. On March 15, 2006, a jury found Mr. Ortiz guilty on six counts: conspiracy to participate in the affairs of a racketeering enterprise, in violation of 18 U.S.C. § 1962(d) (Count 1); conspiracy to distribute 1,000 grams or more of heroin within 1,000 feet of a school, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A), 846, and 860 (Count 7); kidnapping in aid of racketeering, in violation of 18 U.S.C. § 1959(a)(1) (Count 11); conspiracy to maim in aid of racketeering, in violation of 18 U.S.C. § 1959(a)(6) (Count 12); conspiracy to murder in aid of racketeering, in violation of 18 U.S.C. § 1959(a)(5) (Count 13); and using and carrying a firearm during and in relation to the conspiracy to murder, in violation of 18 U.S.C. §§ 924(c)(1)(A)(ii) and 2 (Count 14). Under the Federal Sentencing Guidelines, the Court found that Mr. Ortiz had earned a sentence of life imprisonment plus 7 years. This length of time represented concurrent sentences of life imprisonment on Counts 1, 7, and 11; a concurrent 36-month sentence on Count 12; and a concurrent 120-month sentence on Count 12; plus a mandatory consecutive 7-year sentence on Count 14 for the § 924(c) offense.

Mr. Ortiz directly appealed on several grounds, including that there was insufficient evidence to convict him on each of the conspiracy charges and that “the district court made unconstitutional findings during the sentencing process and/or imposed an unreasonable sentence.” United States v. Melendez, 388 Fed.Appx. 178, 181 (3d Cir. 2010). The Third Circuit Court of Appeals affirmed Mr. Ortiz's conviction and sentence, rejecting his claims as well as the claims made by his seven co-defendants. Id. at 181-82.

In 2013, nearly three years after the Third Circuit Court of Appeals affirmed his conviction, Mr. Ortiz filed his first petition under 28 U.S.C. § 2255 in this Court, arguing ineffective assistance of counsel because his counsel failed to attack the career offender status assigned to him under the Sentencing Guidelines. United States v. Ortiz, No. 05-cr-044-10, 2013 WL 5942313, at *2 (E.D. Pa. Nov. 4, 2013). This Court found that Mr. Ortiz's petition was time-barred, and even if it was not, Mr. Ortiz failed to raise an ineffective assistance of counsel claim because he could not show that his lawyer failed to meet his obligation or that failure resulted in prejudice to Mr. Ortiz. Id.

In 2016,^[1] Mr. Ortiz sought leave to file a second or successive § 2255 petition, challenging his conviction under § 924(c) in light of Johnson v. United States, 576 U.S. 591 (2015), in which the Supreme Court invalidated the residual clause in the definition of “violent felony” in the Armed Career Criminal Act.^[2] He also argues that his convictions and sentences under §§ 1962(d) and 1959 should be vacated as failing to qualify as crimes of violence, and that his designation as a career offender is also invalid. Shortly before the Third Circuit Court of Appeals authorized Mr. Ortiz's successive § 2255 petition, this Court appointed the Federal Community Defender Office to represent Mr. Ortiz in seeking relief under Johnson.

Mr. Ortiz continued to file pro se memoranda relating to his § 2255 motions. In September 2019, he filed a supplemental memorandum in which he appears to argue that the Government presented insufficient evidence for a reasonable juror to convict him on the charge of conspiracy to distribute heroin, certain witnesses' and co-defendant's statements were improperly admitted into evidence, no chain of custody evidence was established for the admitted evidence, and the Court erred by applying a career offender enhancement when Mr. Ortiz's prior drug convictions did not qualify as controlled substance offenses.

In October 2020, Mr. Ortiz once again filed a pro se “motion to correct illegal sentences” in which he alleged scattershot claims over the course of 62 pages, including that his “sentences are illegal because they were not imposed in strict accordance with the United States Code, and the mode, extent and place of the sentences['] execution exceeds the governing laws under the United States Code, and the sentences internally contradict[] the enabling legislation of the statutes Mr. Ortiz was charged with and convicted of violating.” Def.'s Mot. to Correct, Doc. No. 1091 at 17.

In December 2020, Mr. Ortiz, through appointed counsel at the Federal Community Defender Office, filed another memorandum of law in support of his authorized § 2255 motion, in which he argues that the underlying offense of conspiracy to commit murder in aid of racketeering no longer qualifies as a “crime of violence” for purposes of § 924(c), based on the Supreme Court's decision in Davis. Davis, 139 S.Ct. at 2336. Mr. Ortiz's appointed counsel further argues on his behalf that Mr. Ortiz's § 924(c) conviction must be vacated, and, under the precedent of the Third Circuit Court of Appeals, a plenary resentencing hearing is warranted. See United States v. Davis, 112 F.3d 118 (3d Cir. 1997). The Government responded to Mr. Ortiz's various motions, acknowledging that in light of the Supreme Court's decision in Davis, Mr. Ortiz's conviction under § 924(c) in Count 14 is invalid, and the seven-year consecutive sentence imposed under that count should be vacated.^[3] See Davis, 139 S.Ct. at 2336. Accordingly, the motion is ripe for the Court's review.

Legal Standard

Section 2255 allows a prisoner in federal custody to attack his sentence if it was “imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack.” 28 U.S.C. § 2255(a). A petitioner may only prevail on a § 2255 claim by demonstrating that an error of law was constitutional, jurisdictional, “a fundamental defect which inherently results in a complete miscarriage of justice,” or “an omission inconsistent with the rudimentary demands of fair procedure.” Hill v. United States, 368 U.S. 424, 428 (1962).

As described above, Mr. Ortiz filed several of the motions or supplemental filings discussed herein pro se. “The court is to construe a prisoner's pro se pleading liberally, but vague and conclusory allegations contained in a § 2255 petition may be disposed of without further investigation.” United States v. Sotomayor, 146 F.Supp.3d 667, 668 (E.D. Pa. 2015) (internal citations and quotations omitted).

Discussion

I. Unauthorized Second or Successive Motions

In order for a district court to hear a second or successive § 2255 motion, the motion must be certified by a panel of the relevant court of appeals to contain “newly discovered evidence that, if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that no reasonable factfinder would have...