664 F.3d 1151 (8th Cir. 2011), 08-1749, Ortiz v. United States

Docket Nº:08-1749.
Citation:664 F.3d 1151
Opinion Judge:RILEY, Chief Judge.
Party Name:Arboleda A. ORTIZ, Movant-Appellant, v. UNITED STATES of America, Respondent-Appellee. Republic of Colombia; American Association on Intellectual and Developmental Disabilities and the ARC of the United States; Concerned Experts in Mental Retardation/Intellectual Disability, Amici on behalf of Appellant.
Attorney:Billy Nolas, Amy Gershenfeld Donnella, Fed. Community Defender Office for the Eastern Dist. of Pennsylvania, Philadelphia, PA, argued (Kent E. Gipson, Law Office of Kent Gipson, LLC, Kansas City, MO, Jay D. DeHardt, McQuain, DeHardt & Rosenbloom, PC, Kansas City, MO, on the brief), for appellant....
Judge Panel:Before RILEY, Chief Judge, BENTON and SHEPHERD, Circuit Judges.
Case Date:December 19, 2011
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit
 
FREE EXCERPT

Page 1151

664 F.3d 1151 (8th Cir. 2011)

Arboleda A. ORTIZ, Movant-Appellant,

v.

UNITED STATES of America, Respondent-Appellee.

Republic of Colombia; American Association on Intellectual and Developmental Disabilities and the ARC of the United States; Concerned Experts in Mental Retardation/Intellectual Disability, Amici on behalf of Appellant.

No. 08-1749.

United States Court of Appeals, Eighth Circuit.

December 19, 2011

Submitted: April 11, 2011.

Page 1152

[Copyrighted Material Omitted]

Page 1153

[Copyrighted Material Omitted]

Page 1154

Billy Nolas, Amy Gershenfeld Donnella, Fed. Community Defender Office for the Eastern Dist. of Pennsylvania, Philadelphia, PA, argued (Kent E. Gipson, Law Office of Kent Gipson, LLC, Kansas City, MO, Jay D. DeHardt, McQuain, DeHardt & Rosenbloom, PC, Kansas City, MO, on the brief), for appellant.

Jane J. Jaang, Sullivan & Cromwell LLC, New York, NY, argued (Garrard R. Beeney, James R. Dillon, Theodore A.B. McCombs, David M. Sollors, on the brief),

Page 1155

for the Republic of Columbia as amicus curiae in support of appellant.

James W. Ellis, Prof. of Law, U. of New Mexico School of Law, Albuquerque, NM, Harry Simon, Asst. Fed. Public Defender, Sacramento, CA, for the American Assn. on Intellectual and Developmental Disabilities and the ARC of the United States as amicus curiae in support of appellant.

Lajuana M. Counts, Jeffrey E. Valenti, Asst. U.S. Attys., Kansas City, MO, argued (Beth Phillips, U.S. Atty., on the brief), for appellee.

Before RILEY, Chief Judge, BENTON and SHEPHERD, Circuit Judges.

RILEY, Chief Judge.

Arboleda A. Ortiz, a federal prisoner awaiting execution on two death sentences, appeals the district court's denial of his petition to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255. On appeal, we review Ortiz's claims that (1) he is mentally retarded and therefore ineligible for execution under Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002) ( Atkins claim), and (2) the ineffective assistance of his counsel during the penalty phase of his trial violated the Sixth Amendment (ineffective assistance claim). After careful review of the record, we affirm the district court's denial of Ortiz's ineffective assistance claim, but vacate the district court's denial of the Atkins claim and remand for further consideration in light of certain new evidence.

I. BACKGROUND

A. Underlying Crime

Ortiz, a 44-year-old Colombian national, immigrated illegally to Houston, Texas, in 1991. Ortiz was associated with the Colombian drug cartel " la oficina." Along with co-defendants Plutarco Tello, German Sinisterra, and Edwin Hinestroza, Ortiz was convicted for participating in the 1998 drug-related murder of Julian Colon.

The immediate chain of events leading to the murder began on November 19, 1998, in Kansas City, Missouri, when Monica Osma, Hinestroza's live-in girlfriend, reported that some men broke into their apartment, beat her up, and stole more than $240,000 of Hinestroza's drug money. After the robbery, Hinestroza sent Osma to Houston, Texas, for medical treatment and so his drug partner, Jamie Hurtado, could interview her. While Osma was in Houston, Ortiz and Tello visited her. Claiming to represent " la oficina," the men questioned Osma about the robbery and asked her to show photographs and medical records demonstrating her injuries. Apparently not satisfied with Osma's account, either Ortiz or Tello said " murraco," which was understood as a potential death threat.

Ortiz, Tello, and Sinisterra soon traveled from Houston to Kansas City, in order to help Hinestroza collect the money. On November 28, 1998, the group met Hinestroza and two of his associates, Colon and Andres Borja-Molina, at a motel. Colon and Borja-Molina came to the meeting believing they were going to help in trying to recover the money from a drug client of Hinestroza, but in fact, they were the intended targets.

The group took Colon and Borja-Molina to a house, separated the two men, tied them up with duct tape, beat them, and demanded they return the stolen money. Eventually, Borj a-Molina heard Hinestroza order both men shot. Sinisterra shot Colon in the head, killing him. Someone shot at Borja-Molina, but missed. 1 Borja-Molina pretended to be dead as he was

Page 1156

carried out of the house, placed into the trunk of a car with Colon's body, driven to a park, and abandoned. Borja-Molina eventually escaped from the trunk and reported the murder to the authorities.

The police soon arrested Ortiz, Tello, and Sinisterra. Hinestroza was not apprehended by authorities until February 2004.2 Ortiz admitted to police that he came to Kansas City " to do a job," for which he was to be paid $1,000, and he was present during the murder.

B. Conviction and Sentencing

A federal grand jury indicted Ortiz, Tello, Sinisterra, and Hinestroza for, as relevant, conspiring to distribute 5 kilograms or more of cocaine in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A) and 846 (Count One), using a firearm during a drug-trafficking crime and murdering Colon in violation of 18 U.S.C. §§ 924(c)(1), (j)(1) and 2 (Count 2), and knowingly traveling in interstate commerce with the intent to murder in exchange for money in violation of 18 U.S.C. §§ 1958 and 2 (Count 3). The government gave notice of its intent to seek the death penalty.

In April 2000, the case against Ortiz, Tello, and Sinisterra proceeded to trial. The jury found the defendants guilty on all counts. During the penalty phase of the trial, the jury first determined sentences of death should be imposed on Sinisterra and then the penalty phase of Ortiz's trial began.

Ortiz had deposed and planned on calling three mitigating witnesses, former girlfriends Shaunte Cooper and Louvina " Nikki" Reed, and friend Carolyne Riley. Considering the jury's response to Sinisterra's evidence and the substantial adverse change in the three witnesses' stories about Ortiz, attorney Larry Pace informed the district court and the government before the penalty phase began Ortiz would not call these witnesses. Pace also waived his opening statement and informed the district court Ortiz had decided not to testify. The district court questioned Ortiz on the record, and Ortiz said he understood his rights, but wished not to testify.

After the government presented its case for imposing the death penalty, Pace focused on the events of November 28, 1998, and argued Ortiz deserved different treatment from Sinisterra primarily because, unlike Sinisterra, there was no evidence Ortiz was anything but " the lowest level mule" in the operation and Ortiz did not kill anyone. Pace also stressed other mitigating factors such as (1) Ortiz's lack of criminal history; (2) Ortiz did not participate in the binding, beating, or shooting of Colon; (3) the likelihood Ortiz would serve his time in prison peacefully; and (4) the fact Colon, the murder victim, risked his own life by his actions leading up to the murder.

The jury unanimously decided Ortiz should be sentenced to death on both counts.3 In December of 2000, the district court conducted Ortiz's sentencing hearing. The district court ordered Ortiz sentenced to 235 months imprisonment for Count One and death on Counts Two and Three.

C. Direct Appeal

Ortiz and Sinisterra appealed, raising multiple challenges not directly relevant to this appeal. See United States v. Ortiz, 315 F.3d 873, 878 (8th Cir.2002). We affirmed the convictions and sentences, see id. at 904, and the Supreme Court denied Ortiz's petition for certiorari, see

Page 1157

Ortiz v. United States, 540 U.S. 1073, 124 S.Ct. 920, 157 L.Ed.2d 742 (2003).

D. Motion for Post-Conviction Relief

In December 2004, Ortiz moved to vacate, set aside, or correct his conviction and sentence pursuant to 28 U.S.C. § 2255. In his § 2255 motion, Ortiz raised, among other claims, his Atkins and ineffective assistance challenges. In November 2007, the district court held a three-day evidentiary hearing on the motion. Ortiz presented three broad categories of evidence at the hearing: (1) general mitigation evidence based upon Ortiz's background, (2) evidence Ortiz is mentally retarded, and (3) evidence related to the ineffective assistance of counsel claim.

1. Ortiz's Background

Dhyana Fernandez, a mitigation specialist, testified she traveled to Ortiz's hometown of Buenaventura, Colombia, and to Houston, Texas, in order to conduct an investigation of Ortiz's social history. Fernandez interviewed Ortiz's friends and family, including his father and his paternal grandmother.

Fernandez reported Ortiz's mother abandoned him when he was two months old. Ortiz was raised by his paternal grandmother. Ortiz's family noticed he was developmentally delayed in the areas of communication, reading, numbers, and memory skills. Ortiz had little education, dropping out of school when he was seven or eight years old because he had difficulty learning and other children teased him. Instead of going to school, Ortiz worked with his grandmother growing fruit on a small plot of land. Ortiz's family reported he suffered from various undocumented illnesses and injuries as a child, including fevers, bacterial meningitis, and two possible instances of untreated head trauma.

Fernandez reported Ortiz tried working for his father's construction company, but was unsuccessful because he was unable to learn the various construction tasks. Ortiz and his father had an argument, resulting in the father shooting at Ortiz. Ortiz also served in the Colombian military, where he went AWOL on several occasions after becoming homesick. When Ortiz illegally immigrated to...

To continue reading

FREE SIGN UP