Moreno-Ornelas v. United States

Opinion

WO

Jesus Eder Moreno Ornelas, No. CV-20-00521-TUC-CKJ

Petitioner, AMENDED ORDER

v.

United States of America,

Respondent. On June 7, 2024, Defendant/Petitioner again filed a Motion to File Notice of Appeal Out of Time. This filing follows several Orders issued by the Court that denied him leave to file a late appeal to the Court’s Order and Judgment entered in this case on January 3, 2023, against Petitioner in this habeas action filed pursuant to 28 U.S.C. § 2255. The Court amends this Order, which it issued after a remand directive from the Ninth Circuit Court of Appeals for the limited purpose of granting or denying a certificate of appealability as to Petitioner’s Notice of Appeal filed on April 19, 2014 (Doc. 33), appealing the denial of his (First) Motion for Leave to Appeal Out of Time (Doc. 32). On January 3, 2024, this Court denied and entered Judgment against Petitioner in this habeas action filed pursuant to 28 U.S.C. § 2255. The Court declined to issue a certificate of appealability because reasonable jurists would not conclude the Court’s assessment, procedurally and on the constitutional merits, to be debatable. (Order (Doc. 24); Judgment (Doc. 25)). On February 15, 2024, Petitioner filed a Motion for Leave to Appeal Out of Time, which the Court denied on April 8, 2024. The Court found that the late appeal was procedurally precluded. (Order (Doc. 32)). Petitioner appealed the Order denying leave to file a late appeal. On April 30, 2024, the Ninth Circuit Court of Appeals remanded the matter for the limited purpose of granting or denying a certificate of appealability. The attorney of record, Fredrick Michael Carrillo, filed a Motion to Withdraw as Counsel. He is not a member of the Criminal Justice Act appellate panel for the District of Arizona, Tucson Division. (Motion (Doc. 35)). He asks that new counsel be assigned to the Petitioner. The Court will grant the Motion to Withdraw but does not assign new counsel for the Petitioner because the Court declines to issue a certificate of appealability. The Court finds that reasonable jurists would not find the Court’s procedural ruling denying a late appeal in the Order issued April 8, 2024, debatable. Slack v. McDaniel, 529 U.S. 473, 484 (2000). Because the Court amends this Order, it treats the Petitioner’s (Second) Motion to File Notice of Appeal Out of Time (Doc. 38) as a Motion for Reconsideration. The Court has considered the arguments and representations made therein regarding the alleged conduct of counsel, Mr. Carrillo, in representing the Petitioner in the habeas case, especially alleged failures related to sending copies to Petitioner of the Order and Judgment issued by the Court denying the habeas Petition (Docs. 24, 25). The Court affirms its denial of the (First) Motion to File Notice of Appeal Out of Time as procedurally barred. (Order (Doc. 32)). As a Motion for Reconsideration, the Petitioner’s arguments made in his recent filing (Doc. 38) will be forwarded to the Ninth Circuit Court of Appeals. The Court affirms its decision denying the (First) Motion to File Appeal Out of Time (Doc. 32). As explained in its Order issued on February 28, 2024, the denial of a certificate of appealability under 28 U.S.C. § 2254 was a typo and harmless error because Rule 11(a) governs all habeas cases the same. (Order (Doc. 27) at 1.) The standard for issuing a certificate of appealability is the same whether the habeas case is brought under § 2254 or § 2255. The Court, therefore, affirms its denial of a certificate of appealability related to its Order denying Petitioner’s (First) Motion for Leave to Appeal Out of Time (Doc. 26). Under Rule 11(a), governing § 2255 cases, the Court declines to issue a certificate of appealability related to Order (Doc. 32) because reasonable jurists would not find the Court’s procedural ruling denying the request for a late appeal debatable. Slack v. McDaniel, 529 U.S. 473, 484 (2000). Accordingly, IT IS ORDERED that this Order, issued as an Amended Order, again grants the Motion to Withdraw as Counsel (Doc. 35). IT IS FURTHER ORDERED that the Clerk of the Court shall reflect the (Second) Motion to File Notice of Appeal Out of Time (Doc. 38) has been treated like a Motion for Reconsideration of Order (Doc. 37) and is DENIED. IT IS FURTHER ORDERED that, pursuant to Rule 11(a) of the Rules Governing Section 2255 Cases, the Court declines to issue a certificate of appealability related to 13} Order (Doc. 32) because reasonable jurists would not find the Court’s procedural ruling debatable. Slack v. McDaniel, 529 U.S. 473, 484 (2000). IT IS FURTHER ORDERED that the Clerk of the Court shall send a copy of this Order and Petitioner’s motion (Doc. 38), treated herein as a Motion for Reconsideration, to the Clerk of the Court for the Ninth Circuit Court of Appeals. Dated this 2nd day of July, 2024. Lowey KO a seesont 9] Honorable Cin . J6fgenson United States District Judge

-3-