Ortiz v. Davis

Filing 4

MEMORANDUM OPINION AND ORDER. Case DISMISSED without prejudice. COA DENIED. Case terminated on 5/16/2018.(Signed by Judge George C Hanks, Jr) Parties notified.(dwilkerson, 3)

United States District Court
Southern District of Texas

ENTERED
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
GALVESTON DIVISION
MARCOS LOPEZ ORTIZ,
TDCJ #01049113,
Petitioner,
VS.
LORIE DAVIS,
Respondent.

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May 16, 2018
David J. Bradley, Clerk

CIVIL ACTION NO. 3:18-CV-127

MEMORANDUM OPINION AND ORDER
Marcos Lopez Ortiz is currently incarcerated in the Texas Department of Criminal
Justice–Correctional Institutions Division (“TDCJ”). Ortiz has filed a Petition (Dkt. 1)
for a federal writ of habeas corpus under 28 U.S.C. § 2254 to challenge a 2001 state court
conviction for aggravated robbery. He also has filed a supplemental brief (Dkt. 3). After
considering all of the pleadings and the applicable law, the Court will dismiss the Petition
for the reasons explained briefly below.
I.

BACKGROUND
On April 11, 2001, Ortiz was convicted of aggravated robbery in Galveston

County Cause No. 00CR1009.1 Ortiz received a sentence of 25 years’ imprisonment as a
result of that conviction, which was affirmed on direct appeal in an unpublished opinion.
See Ortiz v. State, Nos. 14-01-00556-CR & 14-01-00557-CR (Tex. App.–Houston [14th

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See TDCJ Offender Information, located at https://offender.tdcj.texas.gov/
OffenderSearch/index.jsp (last visited May 14, 2018).

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Dist.] May 23, 2002, pet. ref’d) (affirming Ortiz’s convictions for aggravated robbery and
aggravated assault).
The Petition in this case was docketed on April 26, 2018, but is not signed or
dated. The cover letter accompanying the Petition is dated April 20, 2018. Ortiz claims
in his Petition that he is challenging his 2001 conviction for aggravated robbery (Dkt. 1,
at 2). He argues that federal habeas relief should be granted because new evidence
supports his claims of actual innocence, a conspiracy to wrongfully convict him, and
denial of his due process rights (id. at 6-7). Ortiz states that he previously filed federal
habeas petitions attacking the same conviction and that he has not received permission
from the Fifth Circuit to file a second petition (id. at 8).
Court records reflect that Ortiz has raised similar claims in previous federal habeas
proceedings under 28 U.S.C. § 2254. See e.g., Ortiz v. Dretke, Civil No. 3:04-0354 (S.D.
Tex.) (dismissed with prejudice on March 2, 2006); Ortiz v. Davis, Civil No. 4:17-3856
(S.D. Tex.) (dismissed as an unauthorized successive petition on February 6, 2018).
II.

DISCUSSION
This case is governed by the Anti-Terrorism and Effective Death Penalty Act (the

“AEDPA”), which prohibits “second or successive” habeas corpus applications that do
not rely on a “new rule of constitutional law” made retroactive by the Supreme Court or a
factual predicate that could not have been discovered previously through the exercise of
due diligence. 28 U.S.C. § 2244(b)(2). If a prisoner wishes to pursue a second or
successive habeas application he must first obtain authorization from the appropriate
court of appeals before a district court can consider that application. See 28 U.S.C.
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§ 2244(b)(3)(A). This Court has no jurisdiction to consider a successive petition absent
prior authorization from the Fifth Circuit.
The Fifth Circuit has recognized that “a prisoner’s application is not second or
successive simply because it follows an earlier federal petition.” In re Cain, 137 F.3d
234, 235 (5th Cir. 1998).

Rather, a subsequent application qualifies as second or

successive when it: (1) “raises a claim challenging the petitioner’s conviction or sentence
that was or could have been raised in an earlier petition”; or (2) “otherwise constitutes an
abuse of the writ.” Id. The pending petition, which duplicates claims raised and rejected
in previous habeas corpus proceedings, plainly meets the second-or-successive criteria.
See Crone v. Cockrell, 324 F.3d 833, 837-38 (5th Cir. 2003).
Because the pending petition is successive, the petitioner is required to seek
authorization from the Fifth Circuit before this Court can consider his application. See 28
U.S.C. § 2244(b)(3)(A). “Indeed, the purpose of [28 U.S.C. § 2244(b)] was to eliminate
the need for the district courts to repeatedly consider challenges to the same conviction
unless an appellate panel first found that those challenges had some merit.” United States
v. Key, 205 F.3d 773, 774 (5th Cir. 2000) (citing Cain, 137 F.3d at 235). Ortiz concedes
that he has not received authorization from the Fifth Circuit to file his petition (Dkt.1, at
8). Moreover, court records reflect that the Fifth Circuit previously has denied a request
from Ortiz for leave to file a second or successive application challenging his 2001
conviction. See In re Ortiz, No. 09-40129 (5th Cir. March 3, 2009).
Accordingly, the petition must be dismissed as an unauthorized successive writ.

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III.

CERTIFICATE OF APPEALABILITY
Habeas corpus actions under 28 U.S.C. § 2254 or § 2255 require a certificate of

appealability to proceed on appeal. 28 U.S.C. § 2253(c)(1); Miller-El v. Cockrell, 537
U.S. 322, 335-36 (2003). Rule 11 of the Rules Governing Section 2254 Cases requires a
district court to issue or deny a certificate of appealability when entering a final order that
is adverse to the petitioner.
A certificate of appealability will not issue unless the petitioner makes “a
substantial showing of the denial of a constitutional right,” 28 U.S.C. § 2253(c)(2), which
requires a petitioner to demonstrate “‘that reasonable jurists would find the district
court’s assessment of the constitutional claims debatable or wrong.’” Tennard v. Dretke,
542 U.S. 274, 282 (2004) (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)). Under
the controlling standard, a petitioner must show “that reasonable jurists could debate
whether (or, for that matter, agree that) the petition should have been resolved in a
different manner or that the issues presented were adequate to deserve encouragement to
proceed further.” Miller-El, 537 U.S. at 336 (internal citation and quotation marks
omitted). Where denial of relief is based on procedural grounds, the petitioner must show
not only that “jurists of reason would find it debatable whether the petition states a valid
claim of the denial of a constitutional right,” but also that they “would find it debatable
whether the district court was correct in its procedural ruling.” Slack, 529 U.S. at 484.
A district court may deny a certificate of appealability, sua sponte, without
requiring further briefing or argument. Alexander v. Johnson, 211 F.3d 895, 898 (5th Cir.
2000). After careful review of the pleadings and the applicable law, the Court concludes
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that reasonable jurists would not find its assessment of the claims debatable or wrong.
Because the petitioner does not allege facts showing that his claims could be resolved in a
different manner, a certificate of appealability will not issue in this case.
IV.

CONCLUSION
Based on the foregoing, the Court ORDERS as follows:
1.

The Petition (Dkt. 1) is DISMISSED without prejudice as an
unauthorized successive petition.

2.

A certificate of appealability is DENIED.

The Clerk will provide a copy of this order to the parties.
SIGNED at Galveston, Texas, this 16th day of May, 2018.
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George C. Hanks Jr.
United States District Judge

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