Ortiz v. Davis

Filing 5

MEMORANDUM AND ORDER DENIED 4 MOTION for Discovery, 3 MOTION for Evidentiary Hearing (Signed by Judge Nancy F Atlas) Parties notified.(sashabranner, 4)

United States District Court
Southern District of Texas

ENTERED
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
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Petitioner,
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v.
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LORIE DAVIS, Director,
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Texas Department of Criminal Justice - §
Correctional Institutions Division,
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Respondent.
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February 06, 2018
David J. Bradley, Clerk

MARCOS LOPEZ ORTIZ,
TDCJ #1049113,

CIVIL ACTION NO. H-17-3856

MEMORANDUM AND ORDER
Marcos Lopez Ortiz is currently incarcerated in the Texas Department of
Criminal Justice - Correctional Institutions Division (“TDCJ”). Ortiz has filed a
petition for a federal writ of habeas corpus under 28 U.S.C. § 2254 to challenge a
2001 state court conviction for aggravated robbery. He has also filed a motion for an
evidentiary hearing [Doc. # 3] and a motion for discovery [Doc. # 4]. 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as a result of that conviction, which was affirmed on direct appeal in an unpublished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 Dist.] May 23, 2002, pet. ref’d) (affirming Ortiz’s convictions for
aggravated robbery and aggravated assault).
In a rambling, incoherent petition that was executed on December 12, 2017,
Ortiz contends that he is innocent and that his conviction was the result of a corrupt
conspiracy between Galveston police and the Galveston County District Attorney’s
Office.2 Court records reflect that Ortiz has raised similar claims in a previous federal
habeas proceeding under 28 U.S.C. § 2254. See Ortiz v. Dretke, Civil No. 3:04-0354
(S.D. Tex.). The district court granted the respondent’s motion for summary judgment
and dismissed that petition with prejudice on March 2, 2006.

II.

DISCUSSION

1

TDCJ Offender Information, located at: http://Offender.tdcj.texas.gov (last visited
Feb. 5, 2018).
2

Petition [Doc. # 1], at 6-33.
2

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. § 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 a previous habeas corpus proceeding, plainly meets the secondor-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.
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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 In re Cain, 137
F.3d 234, 235 (5th Cir. 1998)). Ortiz presents no proof of authorization and court
records reflect that the Fifth Circuit has denied his request for leave to file a second
or successive application. See In re Ortiz, No. 09-40129 (5th Cir. March 3, 2009).
Accordingly, the petition must be dismissed as an unauthorized successive writ.
III.

CERTIFICATE OF APPEALABILITY
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)). 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
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they “would find it debatable whether the district court was correct in its procedural
ruling.” Slack, 529 U.S. at 484. Because jurists of reason would not debate the
procedural ruling in this case was correct, a certificate of appealability will not issue.

IV.

CONCLUSION AND ORDER
Therefore, based on the foregoing, the Court ORDERS as follows:
1.

The petition filed by Marcos Lopez Ortiz [Doc. # 1] is DISMISSED
without prejudice as an unauthorized successive petition.

2

The motion for an evidentiary hearing [Doc. # 3] and the motion for
discovery [Doc. # 4] are DENIED as moot.

3.

A certificate of appealability is DENIED.

The Clerk shall provide a copy of this order to the petitioner.
SIGNED at Houston, Texas, on February 6, 2018.

NANCY F. ATLAS
SENIOR UNITED STATES DISTRICT JUDGE
NAN Y F. ATLAS
SENIOR UNI
STATES DISTRICT JUDGE

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