Ortega-Cadelan v. Langford ( 2022 )

Appellate Case: 21-3193 Document: 010110639576 Date Filed: 02/01/2022 Page: 1
FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT February 1, 2022
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Christopher M. Wolpert
Clerk of Court
ANGELO ORTEGA-CADELAN,
Petitioner - Appellant,
v. No. 21-3193
(D.C. No. 5:20-CV-03178-SAC)
DON LANGFORD, (D. Kan.)
Respondent - Appellee.
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ORDER DENYING CERTIFICATE OF APPEALABILITY
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Before BACHARACH, MURPHY, and CARSON, Circuit Judges.
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Angelo Ortega-Cadelan, a Kansas state prisoner proceeding pro se, seeks a
certificate of appealability (“COA”) so he can appeal the district court’s dismissal of the
habeas corpus petition he filed pursuant to 28 U.S.C. § 2254. See 28 U.S.C.
§ 2253(c)(1)(A) (providing no appeal may be taken from a final order disposing of a
§ 2254 petition unless the petitioner first obtains a COA). Because reasonable jurists
would not debate the district court’s dismissal of his petition as untimely, we deny his
request for a COA and dismiss this appeal.
In 2007, Ortega-Cadelan pled guilty to rape and was sentenced to life
imprisonment with the possibility of parole after twenty-five years. The Kansas Supreme
Court affirmed his sentence on direct appeal. State v. Ortega-Cadelan, 194 P.3d 1195(Kan. 2008). In 2009, Ortega-Cadelan filed a state postconviction action and a federal
Appellate Case: 21-3193 Document: 010110639576 Date Filed: 02/01/2022 Page: 2
habeas petition. The federal district court dismissed his habeas petition in February 2010
so that he could exhaust his state remedies, warning him that he would only have three
months to file a federal habeas petition after the state courts resolved his state
postconviction action, and advising him to file his federal petition as early as practicable
within that three-month window. Ortega-Cadelan voluntarily dismissed his state
postconviction action in 2012. Shortly thereafter, he filed a second state postconviction
action, which finished making its unsuccessful way through the state court system in
2015. In 2017, Ortega-Cadelan filed a state motion to correct illegal sentence, which was
likewise unsuccessful.
In July 2020, Ortega-Cadelan filed the instant federal habeas petition. The district
court concluded that Ortega-Cadelan’s state postconviction filings had only tolled the
statute of limitations until September 2015, and the district court accordingly ordered
Ortega-Cadelan to show cause why the petition should not be dismissed as untimely.
When Ortega-Cadelan failed to respond to the show-cause order, the district court
dismissed the petition. Ortega-Cadelan subsequently filed a motion for reconsideration in
which he asserted, among other things, that he had assumed the federal habeas petition he
filed in 2009 would be reinstated when he finished exhausting his state remedies. The
district court considered this motion on the merits, construed it to request equitable
tolling of the statute of limitations, and denied equitable tolling based primarily on the
principle that “ignorance of the law, even for an incarcerated pro se petitioner, generally
does not excuse prompt filing.” Marsh v. Soares, 223 F.3d 1217, 1220 (10th Cir. 2000)
(quotation omitted).
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Appellate Case: 21-3193 Document: 010110639576 Date Filed: 02/01/2022 Page: 3
To be entitled to a COA, Ortega-Cadelan must show “that jurists of reason would
find it debatable whether the district court was correct in its procedural ruling.” Slack v.
McDaniel, 529 U.S. 473, 484 (2000).
In his application for a COA, Ortega-Cadelan focuses on the underlying merits of
his habeas petition and touches only briefly on the district court’s procedural ruling.
Regarding the procedural ruling, Ortega-Cadelan appears to argue solely that his federal
habeas petition should have been treated as timely because (1) the state agreed not to
contest his filing of a second postconviction petition in 2012, and (2) he “believes the
case was stayed until exhaustion of remedies.”
Having undertaken a thorough review of Ortega-Cadelan’s appellate filings, the
district court’s orders, and the record on appeal, we conclude Ortega-Cadelan is not
entitled to a COA. As the district court explained in its comprehensive and persuasive
orders, the statute of limitations expired long before Ortega-Cadelan filed this federal
habeas petition in 2020, even with the benefit of statutory tolling during the pendency of
his second state postconviction action, and Ortega-Cadelan’s ignorance of the law and
mistaken assumptions about his first federal habeas petition do not excuse his untimely
filing of this petition.
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Appellate Case: 21-3193 Document: 010110639576 Date Filed: 02/01/2022 Page: 4
We accordingly deny Ortega-Cadelan’s request for a COA and dismiss the appeal.
Ortega-Cadelan’s motion to proceed in forma pauperis is granted.
Entered for the Court
Michael R. Murphy
Circuit Judge
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