                                                                                                                           Opinions of the United
2009 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


5-19-2009

USA v. Felix Ortiz-Velez
Precedential or Non-Precedential: Non-Precedential

Docket No. 08-4722




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Recommended Citation
"USA v. Felix Ortiz-Velez" (2009). 2009 Decisions. Paper 1351.
http://digitalcommons.law.villanova.edu/thirdcircuit_2009/1351


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HLD-84     (April 2009)                                NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                      No. 08-4722
                                      ___________

                           UNITED STATES OF AMERICA

                                            v.

          FELIX ORTIZ-VELEZ, also known as John Doe, also known as Bori
                                           Felix Ortiz-Velez, Appellant

                      ____________________________________

                     On Appeal from the United States District Court
                        for the Middle District of Pennsylvania
                           (M.D. Pa. Crim. No. 96-cr-00005)
                      District Judge: Honorable Sylvia H. Rambo
                      ____________________________________

 Submitted for Possible Summary Action Pursuant to Third Circuit LAR 27.4 and I.O.P.
                                         10.6
          Before: SCIRICA, Chief Judge, WEIS and GARTH, Circuit Judges
                       Opinion filed: May 19, 2009

                                       _________

                                       OPINION
                                       _________

PER CURIAM.

             Felix Ortiz-Velez, a federal prisoner proceeding pro se, appeals an order of

the United States District Court for the Middle District of Pennsylvania denying his



                                            1
motion for transcripts. We will affirm.

              In 1998, Ortiz-Velez pleaded guilty in District Court to two counts of

killing and aiding and abetting a killing in furtherance of a continuing criminal enterprise.

He was sentenced to two consecutive terms of life in prison. Ten years later, in 2008,

Ortiz-Velez filed a motion in District Court requesting the transcripts from his plea

hearing and sentencing. Ortiz-Velez asserted that he had discovered new evidence that,

when combined with his state convictions, indicated that he had been twice put in

jeopardy of punishment for a single offense, in violation of the double jeopardy clause of

the United States Constitution.

              The District Court denied Ortiz-Velez’s motion, explaining that, to the

extent he claims a double jeopardy violation based on sentences imposed in federal and

state court for the same crime, he has no cause of action. See Heath v. Alabama, 474 U.S.

82, 88-89 (1985) (stating that, under the dual sovereignty doctrine, successive

prosecutions by state and federal governments for the same conduct are not barred by the

double jeopardy clause). The District Court also noted that Ortiz-Velez’s plea and

sentencing hearings did not appear to have been transcribed. The District Court stated

that it would not order transcriptions on a frivolous claim. This appeal followed.

              In his notice of appeal, Ortiz-Velez again asserts that his newly discovered

evidence, when combined with his state and federal sentencing transcripts and plea

agreements, will establish a double jeopardy violation. He argues that a criminal



                                              2
defendant has a right to the record on appeal, including transcripts of proceedings, and

that the dual sovereignty doctrine should not create an exception to the Fifth Amendment

of the Constitution.

              The District Court correctly stated that, under the dual sovereignty doctrine,

Ortiz-Velez does not have a valid double jeopardy claim based on prosecutions for the

same conduct in federal and state court. See Heath, 474 U.S. at 88-89; United States v.

Pungitore, 910 F.2d 1084, 1105-06 (3d Cir. 1990). Had Ortiz-Velez filed a motion

pursuant to 28 U.S.C. § 2255 raising his double jeopardy claim, transcripts would have

been prepared at the Government’s expense only if the trial judge certified that the suit

was not frivolous and that the transcripts were needed to decide the issue presented. See

28 U.S.C. § 753(f). The District Court did not abuse its discretion in denying Ortiz-

Velez’s motion for transcripts where he did not establish that the claim he wished to

pursue was not frivolous.

              Because this appeal does not raise a substantial question, we will affirm the

District Court’s order.




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