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Ortega v. United States

United States District Court, E.D. Missouri, Eastern Division

December 27, 2016

PORFIRIO ORTEGA, Movant,
v.
UNITED STATES OF AMERICA, Respondent.

          MEMORANDUM AND ORDER

          CATHERINE D. PERRY, UNITED STATES DISTRICT JUDGE

         Porfirio Ortega seeks to vacate, set aside or correct his sentence under 28 U.S.C. § 2255. Ortega was convicted by a jury of one count of conspiracy to distribute more than five kilograms of cocaine, in violation of 21 U.S.C. § 846 and 21 U.S.C. § 841(b)(1)(A)(ii). Case No. 4:11CR273 CDP. He was sentenced to 132 months imprisonment, which was a variance from the sentencing guidelines range of 151 to 188 months. Ortega appealed, and the Eighth Circuit Court of Appeals affirmed his conviction and sentence. United States v. Porfirio Ortega, 750 F.3d 1020 (8th Cir. 2014). In 2015 I reduced his sentence to 121 months, giving Ortega the benefit of Amendment 782 to the United States Sentencing Guidelines, which reduced sentences for many drug offenses.

         Ortega then filed this § 2255 motion, raising the following grounds for relief:

1) He was entrapped and taken advantage of by the informant because of his drug addiction;
2) The court incorrectly calculated the quantity of cocaine that was reasonably foreseeable to him;
3) During the commission of the offense “he was high and intoxicated;”
4) Ineffective assistance of counsel for the following reasons:
a. His rights were violated b. Counsel failed to take into consideration his mental and health conditions
c. There was a lack of physical evidence d. Counsel never attempted to reach the truth.

         The records before me conclusively demonstrate that Ortega has no right to relief. His first three claims could have been raised before the Court of Appeals but were not, and so they are procedurally barred. He was represented by an experienced trial attorney who presented a vigorous defense, and his claims of ineffective assistance of counsel are refuted by the trial record. The evidence against him was very strong, as set forth in great detail in the Court of Appeals opinion rejecting his claim that the evidence was insufficient. I will deny Ortega's motion without an evidentiary hearing for the reasons that follow.[1]

         Discussion

         A. No Evidentiary Hearing is Required

         I will not hold an evidentiary hearing on this matter. “A petitioner is entitled to an evidentiary hearing on a section 2255 motion unless the motion and the files and records of the case conclusively show that he is entitled to no relief.” Anjulo-Lopez v. United States, 541 F.3d 814, 817 (8th Cir. 2008) (internal quotation marks omitted). “No hearing is required, however, where the claim is inadequate on its face or if the record affirmatively refutes the factual assertions upon which it is based.” Id. (internal quotation marks and citations omitted). The record here conclusively refutes the claims, so I will not hold an evidentiary hearing.

         B. Claims 1, 2 and 3 are ...


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