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UNITED STATES DISTRICT COURT

DISTRICT OF ARIZONA

Hector Raul Ortiz-Tarazon, Sr.,

Movant/Defendant

-vsUnited States of America,

Respondent/Plaintiff.

CV-16-0073-PHX-JAT (JFM)

CR-12-0877-PHX-JAT

Report & Recommendation 

on Motion to Vacate, Set Aside or 

Correct Sentence

I. MATTER UNDER CONSIDERATION

Movant, following his conviction in the United States District Court for the 

District of Arizona, filed a Motion to Vacate, Set Aside or Correct Sentence pursuant to 

28 U.S.C. § 2255 on January 11, 2016 (Doc. 1). On June 17, 2016 Respondent filed its 

Response (Doc. 6). Movant filed a Reply on July 8, 2016 (Doc. 7).

The Movant's Motion is now ripe for consideration. Accordingly, the 

undersigned makes the following proposed findings of fact, report, and recommendation 

pursuant to Rule 10, Rules Governing Section 2255 Cases , Rule 72(b), Federal Rules of 

Civil Procedure, 28 U.S.C. § 636(b) and Rule 72.2(a)(2), Local Rules of Civil Procedure. 

II. RELEVANT FACTUAL & PROCEDURAL BACKGROUND

A. FACTUAL BACKGROUND

According to the statement of factual basis in Movant’s written Plea Agreement, 

between December 1, 2008, and May 21, 2012, Movant and his son Hector Francisco 

Ortiz, Jr. (hereafter, "HJR") ran a drug trafficking organization (DTO) that shipped 

marijuana to the Midwest and east coast. They received cash and money orders from 

marijuana customers as payment for the marijuana. Movant and HJR also discussed 

trading vehicles and weapons for drugs, including volumes and exchange rates. 

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Movant and HJR entered into agreements with a Confidential Source (CS) to 

launder the DTO's drug trafficking proceeds, exchanging blank money orders (drug 

proceeds) for the DTO in exchange for cash. 

HJR possessed a gun during these money exchanges with the CS to protect the 

drug proceeds in furtherance of the defendants' drug trafficking activities. Moreover, 

Movant told the CS that HJR was in possession of at least 200 guns and armor piercing 

bullets. Movant knew HJR possessed firearms to protect marijuana stored at HJR's 

house in furtherance of the defendants' drug trafficking activities. 

In April, 2012, Movant met a marijuana load vehicle driven by a co-defendant. 

The load vehicle was intercepted in a traffic stop and contained 95 pounds of marijuana. 

In May, 2012, law enforcement executed search and seizure warrants at 

numerous locations, including at the residences of Movant and HJR. At Movant’s house 

they found numerous weapons and ammunition throughout the residence, marijuana 

wrapping material, and brass knuckles in one of HSR's vehicles. A search of HJR's 

house found numerous weapons and ammunition, 132 pounds of marijuana, including a 

boxed up bale of marijuana in a vehicle with a pistol in the glove box, which was the one 

described by Movant to the CS. Other related search warrants yielded additional 

weapons, and blank money orders. Movant and others had purchased packaging and 

wrapping materials to conceal the marijuana and mask the odor so the marijuana could 

be transported discreetly to customers in other states, airline flights, car rentals, hotels, 

cellular telephones and other expenses in order to facilitate drug transactions, the 

transportation of marijuana and marijuana proceeds. (Exhibit A, Plea Agreement at 10-

18.) (Exhibits to the Response, Doc. 6, are referenced herein as “Exhibit ___.”) 

B. PROCEEDINGS AT TRIAL

On April 26, 2012, Movant was indicted, in an Indictment naming nine codefendants, on seven counts, including: 

1. one count of conspiracy to possess marijuana with intent to distribute (Count 

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1);

2. three counts of possession of marijuana with intent to distribute, under 21 

U.S.C. § 841(b)(1)(D) (Counts 2, 6, and 9);

3. one count of possession of marijuana with intent to distribute, under 21 U.S.C. 

§ 841(b)(1)(C) (Count 8);

4. one count of conspiracy to commit money laundering (Count 10); and

5. one count of promotion and concealment of money laundering (Count 25).

(Indictment, CR Doc. 3.) (Filings in the underlying criminal case, CR-12-0877-PHXJAT, are referenced herein as “CR Doc. ___”.) The Indictment also sought a money 

judgment of $1 million, and forfeiture of a home, and 10 vehicles. (Id. at 14, et seq.)

Movant was appointed counsel, but eventually moved to substitute retained 

counsel Fischer. (CR Doc. 109, Motion; CR Doc. 114, Order 8/8/12.) 

Though originally set for December 4, 2012, the case was eventually designated a 

complex case, and on October 21, 2012, was set for trial on January 14, 2014. (CR Doc. 

146, M.E. 10/31/12.) 

On April 9, 2013, a First Superseding Indictment was issued, charging Movant 

with fifteen counts, consisting of the original seven and the following eight new counts:

1. four counts of possession of marijuana with intent to distribute, under 21 

U.S.C. § 841(b)(1)(D) (Counts 3, 4, 5, and 7);

2. one count of promotion and concealment of money laundering (Count 29);

3. two counts that Movant “did use, carry, and possess a firearm” in committing 

a drug trafficking crime (Counts 26 and 28); and

4. one count of possession of marijuana with intent to distribute, under 21 U.S.C. 

§ 841(b)(1)(C) (Count 27).

(1st Superseding Indictment, CR Doc. 201.) 

On June 26, 2013, attorney Morgan entered an appearance as counsel for Movant 

in association with attorney Fischer. (CR Doc. 277.)

Counsel filed motions to sever (CR Doc. 315) and to suppress wiretaps (CR Doc. 

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317). As a result of Movant’s eventual guilty plea, no ruling on these motions was 

made.

On November 19, 2013, a Second Superseding Indictment was issued, seeking 

forfeiture of additional assets, including some 43 sets of firearms and related accessories 

and ammunition. (2nd Superseding Indictment, CR Doc. 396.) 

On December 13, 2013, Movant entered into a written Plea Agreement (Exhibit 

A), in which he agreed to plead guilty to 

1. one count of conspiracy to possess marijuana with intent to distribute (Count 

1);

2. one count of conspiracy to commit money laundering (Count 10); and

3. one count of use of a firearm in committing a drug trafficking crime (Count

26).

(Id. at 1.) In addition, Movant agreed to the forfeiture of some $212,000, and various 

weapons and vehicles. (Id.at 5-9.) In exchange, the Government made a conditional 

agreement to recommend a reduction in sentencing for acceptance of responsibility. (Id.

at 3.) In addition, the remaining counts would be dismissed. (Id.) The Plea Agreement 

included, among others, the following express waiver:

The defendant waives (1) any and all motions, defenses, probable 

cause determinations, and objections that the defendant could assert 

to the indictment or information; and (2) any right to file an appeal, 

any collateral attack, and any other writ or motion that challenges 

the conviction, an order of restitution or forfeiture, the entry of 

judgment against the defendant, or any aspect of the defendant's 

sentence, including the manner in which the sentence is determined, 

including but not limited to any appeals under 18 U.S.C. § 3742 

(sentencing appeals) and motions under 28 U.S.C. §§ 2241 and 

2255 (habeas petitions), and any right to file a motion for 

modification of sentence, including under Title 18 U.S.C. § 3582(c). 

This waiver shall result in the dismissal of any appeal, collateral 

attack, or other motion the defendant might file challenging the 

conviction, order of restitution or forfeiture, or sentence in this case.

(Id. at 4.) 

On December 13, 2013, Movant appeared before Magistrate Judge Logan and 

entered a plea of guilty pursuant to the Plea Agreement. (CR Doc. 529, M.E. 12/13/13.) 

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On January 6, 2014, the recommendation to accept the plea was accepted and sentencing 

set. (CR Doc. 558, Order 1/6/14.) 

Movant filed Objections (CR Doc. 658) to the pre-sentence investigation, which 

were overruled, and after a number of continuances, on June 11, 2014, Movant was 

sentenced to concurrent terms of 120 months on Counts 1 and 10, and a consecutive term 

of 60 months on Count 26, for an effective 15 year sentence. (CR Doc. 708, M.E. 

6/11/14; CR Doc. 721, Judgment.) 

C. PROCEEDINGS ON DIRECT APPEAL

Movant file a Notice of Appeal (CR Doc. 738) and appellate counsel was 

appointed (CR Doc. 822, Order 10/15/14). Counsel found no issue for review, and filed 

a brief pursuant to Anders v. California, 386 U.S. 738 (1967). Movant filed a pro se 

supplemental brief. The Ninth Circuit concluded that Movant made a valid waiver of his 

right to appeal his conviction and sentence, and dismissed the appeal. (CR Doc. 907, 

Mem. Dec. at 1-2. Also attached to Respondent’s Supplemental Answer, Doc. 10 at 

Exhibit B.) 

D. PROCEEDINGS ON PRESENT MOTION TO VACATE

Motion to Vacate – Movant commenced the current case by filing his Motion to 

Vacate, Set Aside or Correct Sentence pursuant to 28 U.S.C. § 2255 on January 11, 2016 

(Doc. 1). Movant’s Motion asserts the following four grounds for relief:

In Ground One, he alleges that he received the ineffective 

assistance of counsel during plea negotiations when counsel 

failed to object to the Court’s Rule 11(b)(1) and (3) acceptance of 

Movant’s guilty plea to the § 924(c) offense absent any factual 

basis. In Ground Two, Movant alleges that counsel rendered 

ineffective assistance by failing to object to his sentence on the § 

924(c) count absent any factual basis. In Ground Three, Movant 

alleges that appellate counsel rendered ineffective assistance of 

counsel by failing to raise the Court’s violation of Rule 11(B)(1) 

and (3) by accepting Movant’s guilty plea to the § 924(c) charge. In 

Ground Four, Movant alleges that counsel rendered ineffective 

assistance by failing advise Movant not to plead guilty to the § 

924(c) charge.

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(Order 2/19/16, Doc. 3 (emphasis added).) 

Response - On June 17, 2016 Respondent filed its Response (“Answer”) (Doc. 6). 

Respondent argues that Movant’s claims are procedurally defaulted, waived by Movant’s 

plea and Plea Agreement, and are without merit.

Reply - On July 8, 2016 Movant filed a Reply (Doc. 7). Movant argues that the 

indictment was defective, his waiver was unenforceable, the Court violated Rule 11, and 

he has not procedurally defaulted on his claims.

Supplemental Response – On August 3, 2016, the Court noted that the Response 

did not raise a claim of procedural default, and that Respondent had not had an 

opportunity to be heard on Movant’s assertion that trial counsel had a conflict of interest 

in negotiating the plea agreement and associated waiver because it waived claims of 

counsel’s own ineffectiveness.

On August 24, 2016, Respondent filed its Supplemental Response (Doc. 10), 

arguing: (1) Movant’s waiver did not bar him from raising claims of ineffective 

assistance, and Respondent so concedes; (2 and 3) the waiver of claims of ineffective 

assistance was not deficient performance under prevailing standards at the time; and (4) 

any conflict was merely theoretical. Respondent argues in a footnote that direct claims 

of ineffective assistance are procedurally defaulted because not raised on appeal, and 

claims directly based on the absence of a factual basis were addressed on appeal and are 

not reviewable in this court. 

Supplemental Reply – On September 19, 2016, Movant filed his Supplemental 

Reply (Doc. 11). Movant argues: (1) Respondent has conceded he has the right to bring 

the instant motion, requiring consideration of his claims of ineffective assistance under 

Strickland; (2) the Ninth Circuit did not address on the merits his claim on the absence of 

a factual basis, and thus the issue remains reviewable; (3) Respondent fails to address the 

merits of the factual basis claim.

/ /

/ /

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III. APPLICATION OF LAW TO FACTS

A. PROCEDURAL DEFAULT

Respondent argues that Movant has procedurally defaulted “several sub-claims 

under each ‘Ground’ for relief,” and that such “sub-claims are procedurally defaulted 

because he could have raised them on direct appeal.” (Response, Doc. 6 at 6 and n.3.)

The Court has neither discerned such sub-claims, nor directed a response to them. 

Rather, the Court has only discerned and directed responses to claims of ineffective 

assistance of trial and appellate counsel. (Order 2/19/16, Doc. 3.) 

Similarly, Movant’s Traverse makes clear that the only claims he intends to bring 

are claims of ineffective assistance of counsel. (Travers, Doc. 7 at 8.) 

The general rule is “that claims not raised on direct appeal may not be raised on 

collateral review unless the petitioner shows cause and prejudice.” Massaro v. U.S., 538 

U.S. 500, 504 (2003). Thus, a Section 2255 movant raising a claim for the first time in 

post-conviction proceedings is in procedural default, and is precluded from asserting the 

claim. Bousley v. U.S., 523 U.S. 614, 621 (1998) (finding default where petitioner 

challenging his guilty plea did not raise claim in direct appeal); United States v. Frady, 

456 U.S. 152, 165 (1982) (noting that a motion to vacate or modify a sentence under 28 

U.S.C. § 2255 cannot be used as a substitute for a direct appeal).

However, in a federal prosecution, claims of ineffective assistance of counsel 

need not be exhausted on direct appeal, but are properly brought in the first instance in a 

Motion pursuant to 28 U.S.C. sec. 2255. "We do hold that failure to raise an ineffectiveassistance-of-counsel claim on direct appeal does not bar the claim from being brought 

in a later, appropriate proceeding under § 2255." Massaro, 538 U.S. at 509. 

Because each of Movant’s claims are based upon ineffective assistance of 

counsel, they are not procedurally defaulted.

B. RES JUDICATA/LAW OF THE CASE

Respondent argues: “to the extent Defendant’s ineffective assistance claim is 

actually an attempt to obtain a ruling in his favor on the substantive issue that the lower 

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court violated Rule 11 by failing to establish a factual basis for Defendant’s guilty plea 

to the § 924(c) offense, the Ninth Circuit has already considered this claim and ruled 

against Defendant on the merits.” (Supp. Resp., Doc. 10 at 3, n.1.) 

Ordinarily, the doctrines of res judicata and collateral estoppel do not apply to 

habeas corpus proceedings. Sanders v. U.S., 373 U.S. 1, 8 (1963). However, the law of 

the case doctrine is applicable on federal habeas review. Shore v. Warden, 942 F.2d 

1117, 1123 (7th Cir. 1991). "The law of the case doctrine ordinarily precludes a court 

from re-examining an issue previously decided by the same court, or a higher appellate 

court, in the same case." U.S. v. Caterino, 29 F.3d 1390, 1395 (9th Cir. 1994) (quoting 

U.S. v. Maybusher, 735 F.2d 366, 370 (9th Cir. 1984). Under this doctrine, a district 

court will ordinarily refrain from acting if an appellate court previously has issued a 

decision on the merits of the claim. Caterino, 29 F.3d at 1395. Thus, the Ninth Circuit 

has long held that "[i]ssues disposed of on a previous direct appeal are not reviewable in 

a subsequent petition under 2255." Stein v. U.S., 390 F.2d 625, 626 (9th Cir. 1968).

Movant argued to the Ninth Circuit that his waiver was invalid because the plea 

colloquy was a violation of Rule 11 due to the trial court’s failure to establish a factual 

basis for the plea on the use of a firearm under 18 U.S.C. § 924(c). (Supp. Resp., Doc. 

10, Exhibit A, Supp. Opening Brief at 3-4.) In resolving Movant’s direct appeal, the 

Ninth Circuit opined:

Ortiz-Tarazon has waived his right to appeal his conviction and 

sentence. Because the record discloses no arguable issue as to the 

validity of the appeal waiver, we dismiss the appeal. See United 

States v. Watson, 582 F.3d 974, 986-88 (9th Cir. 2009).

(CR Doc. 907, Mem. Dec. at 2.) 

Movant now argues in his Supplemental Reply that the issue of a factual basis 

was not reached in the Ninth Circuit’s decision because they relied upon the waiver. 

(Supp. Reply, Doc. 11 at 4.) However, the longstanding law of the Ninth Circuit is that a 

waiver is invalid if Rule 11 is not complied with. “An appeal waiver will not apply if: 1) 

a defendant's guilty plea failed to comply with Fed.R.Crim.P. 11; 2) the sentencing judge 

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informs a defendant that she retains the right to appeal; 3) the sentence does not comport 

with the terms of the plea agreement; or 4) the sentence violates the law.” United States 

v. Bibler, 495 F.3d 621, 624 (9th Cir. 2007). As argued by Movant, Rule 11(b)(3) 

requires a factual basis. Thus, the waiver could be enforced only if there was a sufficient 

factual basis to support the charge.

In light of Movant’s explicit argument to the Ninth Circuit that Rule 11’s factual 

basis requirement had not been met, the finding that there was no arguable issue as to the 

validity of the waiver was an implicit rejection of the Rule 11 argument. “[T]he law of 

the case would preclude the district court from reconsidering only issues decided 

explicitly or by necessary implication in this court's previous disposition.” Liberty Mut. 

Ins. Co. v. E.E.O.C., 691 F.2d 438, 441 (9th Cir. 1982). “The decision of an issue need 

not be express to establish the law of the case. Implicit decision suffices, and a terse 

decision is even more clearly the law of the case because it does not require a 

determination whether actual decision can be inferred.” 18B Wright & Miller, Fed. Prac. 

& Proc. Juris. § 4478 (2d ed. 2016). “If the analysis used to dispose of an issue before 

the court controls disposition of an issue that was not considered, however, the law of the 

case established by the analysis may control disposition of the new issue.” Id.

Thus, the Ninth Circuit has established as the law of this case that the trial court 

did not fail to establish a factual basis for the plea. Moreover, because any claim of 

ineffective assistance of counsel related to the factual basis would require a finding that 

there was no factual basis finding, the Ninth Circuit’s decision also precludes the related 

claim of ineffective assistance. Thus, this Court is precluded by the law of the case from 

considering each of Movant’s grounds for relief.

In Ground One, Movant argues that he received ineffective assistance of trial 

counsel based on lack of factual basis on the § 924(c) charge. “The failure to raise a 

meritless legal argument does not constitute ineffective assistance of counsel.” Baumann 

v. United States, 692 F.2d 565, 572 (9th Cir. 1982). Therefore, to find such 

ineffectiveness, this Court would have to reject the Ninth Circuit’s determination that 

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there was a sufficient factual basis. The law of the case precludes such a rejection.

Similarly, in Ground Two, Movant argues that he received ineffective assistance 

of trial counsel at sentencing based on the lack of factual basis on § 924(c). Again, this 

would require rejection of the Ninth Circuit’s decision.

In Ground Three, Movant argues that appellate counsel was ineffective for failing 

to challenge the lack of factual basis on § 924(c). This claim similarly cannot be 

reached.

A finally, in Ground Four, Movant argues that trial counsel was ineffective for 

advising him to plead guilty in light of the lack of a factual basis for the § 924(c) charge. 

Movant does not assert that the facts stated in the factual basis did not exist, merely that 

they did not rise to a violation of § 924(c). Again, this claim would require this Court to 

reject the Ninth Circuit’s determination that the factual basis established a violation of 

924(c). 

Accordingly, all of Petitioner’s claims are founded upon an argument that the 

Ninth Circuit has rejected, and which the law of the case precludes this Court from 

revisiting. Accordingly, the Motion must be denied.

C. OTHER DEFENSES

In light of the determination that consideration of Movant’s claims is precluded 

from consideration under the law of the case, the undersigned does not reach Movant’s 

defenses based on the waiver of rights to bring the instant motion, or Movant’s retort that 

the plea and waiver were not knowingly entered because of the ineffectiveness raised in 

the grounds for relief or because of the purported conflict of interest in advising Movant 

to make a waiver of claims of ineffective assistance.

IV. CERTIFICATE OF APPEALABILITY

Ruling Required - Rule 11(a), Rules Governing Section 2255 Cases, requires 

that in habeas cases the “district court must issue or deny a certificate of appealability 

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when it enters a final order adverse to the applicant.” Such certificates are required in 

cases concerning detention arising “out of process issued by a State court”, or in a 

proceeding under 28 U.S.C. § 2255 attacking a federal criminal judgment or sentence. 28 

U.S.C. § 2253(c)(1). 

Here, the Motion to Vacate is brought pursuant to 28 U.S.C. § 2255, and 

challenges Movant’s federal criminal judgment or sentence. The recommendations if 

accepted will result in Movant’s Motion being resolved adversely to Movant. 

Accordingly, a decision on a certificate of appealability is required. 

Applicable Standards - The standard for issuing a certificate of appealability 

(“COA”) is whether the applicant has “made a substantial showing of the denial of a 

constitutional right.” 28 U.S.C. § 2253(c)(2). “Where a district court has rejected the 

constitutional claims on the merits, the showing required to satisfy § 2253(c) is 

straightforward: The petitioner must demonstrate that reasonable jurists would find the 

district court’s assessment of the constitutional claims debatable or wrong.” Slack v. 

McDaniel, 529 U.S. 473, 484 (2000). “When the district court denies a habeas petition 

on procedural grounds without reaching the prisoner’s underlying constitutional claim, a 

COA should issue when the prisoner shows, at least, that jurists of reason would find it 

debatable whether the petition states a valid claim of the denial of a constitutional right 

and that jurists of reason would find it debatable whether the district court was correct in 

its procedural ruling.” Id.

Standard Not Met - Assuming the recommendations herein are followed in the 

district court’s judgment, that decision will be in part on procedural grounds, and in part 

on the merits in light of the law of the case. Under the reasoning set forth herein, jurists 

of reason would not find it debatable whether the district court was correct in its 

procedural ruling, and jurists of reason would not find the district court’s assessment of 

the constitutional claims debatable or wrong. 

Accordingly, to the extent that the Court adopts this Report & Recommendation 

as to the Motion to Vacate, a certificate of appealability should be denied.

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V. RECOMMENDATION

IT IS THEREFORE RECOMMENDED that the Movant's Motion to Vacate, 

Set Aside or Correct Sentence pursuant to 28 U.S.C. § 2255, filed January 11, 2016

(Doc. 1) be DENIED.

IT IS FURTHER RECOMMENDED that, to the extent the foregoing findings 

and recommendations are adopted in the District Court’s order, a Certificate of 

Appealability be DENIED.

VI. EFFECT OF RECOMMENDATION

This recommendation is not an order that is immediately appealable to the Ninth 

Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1), Federal Rules 

of Appellate Procedure, should not be filed until entry of the district court's judgment. 

However, pursuant to Rule 72(b), Federal Rules of Civil Procedure, the parties 

shall have fourteen (14) days from the date of service of a copy of this recommendation 

within which to file specific written objections with the Court. See also Rule 10, Rules 

Governing Section 2255 Proceedings. Thereafter, the parties have fourteen (14) days 

within which to file a response to the objections. Failure to timely file objections to any 

findings or recommendations of the Magistrate Judge will be considered a waiver of a 

party's right to de novo consideration of the issues, see United States v. Reyna-Tapia, 

328 F.3d 1114, 1121 (9th Cir. 2003)(en banc), and will constitute a waiver of a party's 

right to appellate review of the findings of fact in an order or judgment entered pursuant 

to the recommendation of the Magistrate Judge, Robbins v. Carey, 481 F.3d 1143, 1146-

47 (9th Cir. 2007). 

Dated: November 29, 2016

16-0073r RR 16 07 20 on HC.docx

James F. Metcalf

United States Magistrate Judge

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