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WO 

IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF ARIZONA 

Hector Raul Ortiz-Tarazon, Sr.,

Movant/Defendant, 

v. 

USA, 

Respondent/Plaintiff.

No. CV-16-00073-PHX-JAT

 CR-12-00877-01-PHX-JAT 

ORDER 

 Pending before the Court is Movant’s motion to vacate, set aside or correct 

sentence pursuant to 28 U.S.C. § 2255. The Magistrate Judge to whom this case was 

assigned issued a Report and Recommendation (R&R) recommending that the Motion be 

denied. (Doc. 13). Movant filed objections to the R&R. (Doc. 14). The Government 

filed a response to Movant’s objections. (Doc. 17). 

 This Court “may accept, reject, or modify, in whole or in part, the findings or 

recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1). It is “clear that 

the district judge must review the magistrate judge’s findings and recommendations de 

novo if objection is made, but not otherwise.” United States v. Reyna-Tapia, 328 F.3d 

1114, 1121 (9th Cir. 2003) (en banc) (emphasis in original). Because Petitioner objects 

to the overall conclusion of the R&R, the Court will review the R&R de novo. 

 In his criminal case, Movant pled guilty. (Doc. 13 at 4-5). Following sentencing, 

Movant appealed. (Id. at 5). In his appeal, Movant argued that his plea was invalid 

because it did not have a sufficient factual basis. (Id. at 7-8). The Ninth Circuit Court of 

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Appeals found Movant’s waiver of his right to appeal was valid, thereby implicitly 

rejecting Movant’s argument that his plea as a whole was invalid under Rule 11. (Id. at 

9). 

 In his § 2255 Motion, Movant recasts the same challenge he presented to the Ninth 

Circuit Court of Appeals as an ineffective assistance of counsel claim. (Id. at 9-10). 

Specifically, Movant argues that his trial counsel and appellate counsel were ineffective 

for not making the Rule-11-invalid-plea argument.1

 (Id. at 9-10). The R&R concludes 

that, because the Court of Appeals rejected the merits of Movant’s argument, both 

counsel were not ineffective for not making a meritless argument. (Id. at 9). Further, the 

R&R concludes that this Court cannot reconsider the Court of Appeals’ merits decision 

because it is the law of the case. (Id. at 9-10). 

 Movant objects to the R&R and argues that the Magistrate Judge is mistaken that 

the Ninth Circuit Court of Appeals issued a merits decision because the Ninth Circuit 

Court of Appeals relied on the waiver in Movant’s plea agreement to dismiss his appeal. 

Doc. 14 at 7. Thus, Movant concludes that by applying the waiver, the Ninth Circuit 

Court of Appeals did not consider the merits of Movant’s Rule 11 claim. Id. The 

Government replies and argues the R&R is correct. Doc. 17 at 2. 

 Specifically, the R&R notes: 

[T]he 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 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). 

(Doc. 13 at 8-9). The R&R notes that Movant’s argument that his plea lacks a factual 

basis is based on Federal Rule of Criminal Procedure 11(b)(3). (Id. at 9). The 

Government notes that Movant specifically argued Rule 11(b)(3) to the Court of Appeals. 

 

1

 Movant’s appellate counsel filed an Anders brief; thus, Movant made the Rule 11 

argument pro se on appeal. Doc. 13 at 5. 

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(Doc. 17 at 2 (citing Doc 10-1, Ex. A at 3)). The Ninth Circuit has held that a waiver of 

the right to appeal (such as the one enforced against Movant) is only enforceable if the 

requirements of Rule 11 were met. See United States v. Portillo-Cano, 192 F.3d 1246, 

1252 (9th Cir. 1999). 

 Based on the foregoing, this Court agrees with the R&R that, although the Ninth 

Circuit Court of Appeals did not expressly hold that Movant’s plea complied with Rule 

11, the Court of Appeals must have made that finding to have found Movant’s waiver 

enforceable.2

 Thus, based on the Court of Appeals decision, a finding that Rule 11 was 

met is the law of the case. Further, counsel could not have been ineffective for failing to 

raise a meritless Rule 11 argument. 

 Therefore, 

IT IS ORDERED that the Report and Recommendation (Doc. 13) is accepted; the 

objections (Doc. 14) are overruled; the motion is denied and dismissed with prejudice and 

the Clerk of the Court shall enter judgment accordingly. 

IT IS FURTHER ORDERED that a certificate of appealability is denied. (See

Doc. 13 at 11-12). 

IT IS FURTHER ORDERED that the Court has read Movant’s procedurally 

inappropriate motion to supplement; even if the Court allowed the supplement, none of 

the arguments in the supplement would change the outcome of this case, therefore, the 

motion (Doc. 18) is denied. 

 Dated this 13th day of February, 2017. 

 

 

2

 Specifically, the Court of Appeals stated, “Because the record discloses no 

arguable issue as to the validity of the appeal waiver, we dismiss the appeal.” CR 12- 877, Doc. 907-1 at 2. 

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