You're viewing Docket Item 51 from the case USA v. Ortiz. View the full docket and case details.

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DORA L. IRIZARRY, U.S. District Judge:


06-cr-532 (DLI)

On June 29, 2007, Defendant pled guilty to one count of possession of a firearm by a

convicted felon, in violation of 18 U.S.C. §§ 922(g)(1), 924(a)(2), and 3551 (“Count 1”), as well

as one count of possession of a controlled substance with the intent to distribute, in violation of

21 U.S.C. §§ 841(a)(1), 841(b)(1)(C), and 18 U.S.C. § 3551 (“Count 2”). (See 6/29/07 Minute

Entry, Dkt. Entry No. 28.) On May 16, 2008, the Court sentenced Defendant to a 120-month

term of imprisonment and three years of supervised release on Count 1, and a 120-month term of

imprisonment and three years of supervised release on Count 2, with the sentences to run

concurrently. (See 5/16/2008 Minute Entry, Dtk. Entry No. 36.) Defendant, through his counsel,

Zachary Margulis-Ohnuma, Esq., filed an appeal challenging his conviction and sentence. (See

Notice of Appeal, Dkt. Entry No. 40.) The Second Circuit rejected Defendant’s appeal,

affirming the conviction and sentence in United States v. Ortiz, 621 F. 3d 82 (2d Cir. 2010).

Defendant now moves for the appointment of counsel, specifically Mr. Margulis-

Ohnuma, alleging that Defendant may be entitled to relief of an unspecified nature under the

Supreme Court’s recent opinions in Peugh v. United States, 569 U.S. ___, 133 S. Ct. 2072

(2013), and Descamp v. United States, 570 U.S. ___, 133 S. Ct. 2276 (2013), and that Mr.

Margulis-Ohnuma is best situated to litigate his claims. (See Defendant’s Motion for

Appointment of Counsel, Dkt. Entry No. 49.) The government has not responded to Defendant’s


For the following reasons, Defendant’s request is denied without prejudice. As an initial

matter, there are no pending proceedings before the Court concerning this action. As such, there

is no matter for which the appointment of counsel is necessary.

Secondly, it appears that Defendant’s time in which to file a petition under 28 U.S.C. §

2255 has expired, and Defendant has not set forth any facts that may justify tolling the statute of

limitations under the Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104-

132, 110 Stat. 1214 (1996).

Thirdly, upon the court’s review of the facts and circumstances of this case, it appears

unlikely that the Supreme Court decisions upon which Defendant’s request is based would apply

retroactively to his case.

Finally, these are issues that Defendant can assert himself without the aid of counsel at

this juncture. The Court is mindful of its obligation to hold pro se pleadings “to less stringent

standards than formal pleadings drafted by lawyers.” Hughes v. Rowe, 449 U.S. 5, 9 (1980)

(citation omitted). Courts should “interpret [such papers] to raise the strongest arguments that

they suggest.” Forsyth v. Fed’n Emp’t & Guidance Serv., 409 F. 3d 565, 569 (2d Cir. 2005)

(citation and quotation marks omitted). Though a court need not act as an advocate for pro se

litigants, in such cases “there is a greater burden and a correlative greater responsibility upon the

district court to insure that constitutional deprivations are redressed and that justice is done.”

Davis v. Kelly, 160 F. 3d 917, 922 (2d Cir. 1998) (citation omitted).

At the same time, it is a long-standing rule that the Defendant (or petitioner) bears the

burden of learning the applicable procedural rules in federal court and abiding by them when


seeking review. This rule applies when the individual is acting pro se. See Edwards v. I.N.S., 59

F. 3d 5, 8 (2d Cir. 1995) (“[W]hile a pro se litigant’s pleadings must be construed liberally . . .

pro se litigants generally are required to inform themselves regarding procedural rules and to

comply with them.”); Baldwin v. LIJ North Shore Health System, 392 F. Supp. 2d 479, 483

(E.D.N.Y. 2005) (“[P]ro se status does not exempt a party from compliance with relevant rules

of procedural and substantive law.” (internal quotations and citation omitted)), as well as when

the individual is represented by counsel, see U.S. v. Hooper, 43 F. 3d 26, 29 (2d Cir. 1994)

(“Ignorance of the law or rules does not, in general, constitute ‘excusable neglect.’”).


Accordingly, Defendant’s request for the appointment of counsel is denied without

prejudice. Defendant is further denied a certificate of appealability, as he has failed to make a

“substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2); see FED. R.

APP. P. 22(b); Miller-El v. Cockrell, 537 U.S. 322, 336 (2003); Lucidore v. New York State Div.

of Parole, 209 F.3d 107, 112 (2d Cir. 2000). The Court certifies pursuant to 28 U.S.C. §

1915(a)(3) that any appeal from this Order would not be taken in good faith, and, therefore, in

forma pauperis status is denied for purpose of an appeal. See Coppedge v. United States, 369

U.S. 438, 444-45 (1962).


Dated: Brooklyn, New York

September 19, 2013


United States District Judge