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United States v. Ortiz-Cervantes

United States District Court, D. Nebraska

May 21, 2019



          Robert F. Rossiter, Jr. United States District Judge

         This matter is before the Court on Roberto Carlos Ortiz-Cervantes's (“Ortiz-Cervantes”) pro se Motion to Vacate, Set Aside, or Correct Sentence (Filing No. 89). Rule 4(b) of the Rules Governing Section 2255 Proceedings for the United States District Courts requires the Court to complete a preliminary review of Ortiz-Cervantes § 2255 motion and order the United States Attorney to respond (or take other appropriate action), unless “it plainly appears from the motion, any attached exhibits, and the record of prior proceedings that the moving party is not entitled to relief.” After careful review, the Court finds Ortiz-Cervantes is not entitled to relief.

         I. BACKGROUND

         On May 13, 2014, a special agent with the United States Drug Enforcement Administration filed an application and supporting affidavit for a search warrant for a residence located at 3308 Santa Rita Court in South Sioux City, Nebraska. Although the residence was in Nebraska, the special agent sought the warrant from a magistrate judge in the United States District Court for the Northern District of Iowa. The magistrate judge approved the application and issued a warrant the same day.

         When law enforcement officers executed the warrant, they found Ortiz-Cervantes in a basement bedroom with more than 500 grams of methamphetamine and several thousand dollars hidden in a coat closet. On May 21, 2014, a grand jury charged Ortiz-Cervantes with knowingly possessing with intent to distribute 500 grams or more of a mixture or substance containing methamphetamine in violation of 21 U.S.C. § 841(a)(1) and (b)(1).

         Ortiz-Cervantes moved to suppress (Filing No. 30) the evidence seized as a result of the search, arguing (1) the magistrate judge from the Northern District of Iowa did not have authority to issue a warrant to search property in the District of Nebraska and (2) the affidavit was not supported by probable cause. After an evidentiary hearing, the Court denied (Filing No. 46) the motion.

         On August 27, 2015, Ortiz-Cervantes conditionally pled guilty to the possession charge, reserving his right to appeal the denial of his motion to suppress. The Court sentenced him to 156 months imprisonment. Ortiz-Cervantes appealed.

         On appeal, Ortiz-Cervantes again argued (1) the magistrate judge was not properly cross-designated under 28 U.S.C. § 631(a) and did not have authority to issue the search warrant, (2) probable cause did not support the warrant, and (3) the good-faith exception to the exclusionary rule under United States v. Leon, 468 U.S. 897, 905 (1984), did not apply. The Eighth Circuit affirmed, “concluding probable cause supported the search warrant and the search was conducted in good faith, even though the magistrate judge issuing the search warrant was not properly cross-designated to issue warrants for property located outside of his district.” United States v. Ortiz-Cervantes, 868 F.3d 695, 698 (8th Cir. 2017). Ortiz-Cervantes then petitioned the United States Supreme Court for a writ of certiorari, which was denied on April 2, 2019. See Ortiz-Cervantes v. United States, 584 U.S. __, 138 S.Ct. 1439 (2018).

         On February 21, 2019, Ortiz-Cervantes filed with the Eighth Circuit a pro se Petition for Permission to File a Second or Successive Motion to Vacate, Set Aside, or Correct his sentence. In response, the government moved to deny the petition for lack of jurisdiction because Ortiz-Cervantes “has not filed any earlier § 2255 motions, ” so “his proposed § 2255 motion is not successive and authorization is unnecessary.” The Eighth Circuit denied Ortiz-Cervantes's request as unnecessary and denied the government's motion as moot.

         On April 15, 2019, the Clerk of this Court received Ortiz-Cervantes's present motion to vacate, which is dated April 12, 2019. In his motion, Ortiz-Cervantes avers his “motion is timely submitted” because it was filed “in the prison mailbox system within[] a year of [his] conviction being final.” Ortiz-Cervantes states the government sent a notification of its March 5, 2019, motion to him at the wrong address, so he did not receive it until April 1, 2019.

         Ortiz-Cervantes presents the following list of issues for review:

* Invalid warrant issued by a Magistrate Judge without the authority or Jurisdiction
* Exclusion of Evidence obtained by the ...

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