Ortiz v. Davis

Filing 8

ORDER DENYING Ortiz's 1 Petition for Writ of Habeas Corpus and DENYING the issuance of a Certificate of Appealability. Signed by Judge Robert Pitman. (klw)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION
EMANUEL JAVAN ORTIZ

§
§
§
§
§

V.
LORIE DAVIS

A-17-CV-0024-RP

ORDER
Petitioner is represented by counsel in this matter and has paid the full filing fee for this case.
Before the Court are Petitioner’s Application for Writ of Habeas Corpus For a Person in State
Custody under 28 U.S.C. § 2254 (Docket Entry “DE” 1), Respondent’s Answer (DE 5), and
Petitioner’s Reply (DE 7). For the reasons set forth below, Petitioner’s Application for Writ of
Habeas Corpus is denied.
STATEMENT OF THE CASE
Respondent has custody of Petitioner pursuant to judgments and sentences entered by the
452nd District Court of Kimble County, Texas. Petitioner pleaded guilty to aggravated kidnapping
and aggravated assault and was sentenced to respective concurrent terms of 35 years and 20 years’
imprisonment. Petitioner asserts he is entitled to federal habeas relief because there was insufficient
evidence supporting his convictions, because he was denied his rights to due process of law and a
fair trial, and because he was denied his right to the effective assistance of counsel.
BACKGROUND
A.

Factual Background

A Kimble County grand jury indictment returned December 16, 2014, charged Petitioner with
committing four crimes against Leah Ortiz, Petitioner’s wife, on April 28, 2013. (DE 6-2 at 16-17;
DE 6-3 at 12-14). The indictment alleged two counts of aggravated sexual assault (counts 1 and 2),

one count of aggravated kidnapping (count 3), and one count of aggravated assault with a deadly
weapon, i.e., Petitioner’s hands or feet (count 4). Id.
Petitioner was represented by appointed counsel in his criminal proceedings. (DE 6-3 at 7).
The case was transferred to Mason County for trial. (DE 6-3 at 8). A jury was selected on
September 21, 2015. (DE 6-3 at 9). On September 23, 2015, Petitioner reached a plea bargain
agreement with the State as to counts three and four of the indictment. (DE 6-3 at 44-47). Pursuant
to the plea agreement, Petitioner waived his right to a jury trial, (DE 6-3 at 16, 19, 22, 32), and
waived his right to file a motion for new trial or notice of appeal from either conviction. (DE 6-3 at
17-18, 20-21, 30-31, 40-41). Petitioner waived his right to call and confront witnesses, consented
to the introduction of evidence sufficient to support his conviction, and admitted in writing that he
had committed the offenses alleged in counts 3 and 4 of the indictment. (DE 6-3 at 23-24, 33-34, 4546). Petitioner averred in the written plea agreement that he was knowingly waiving his trial rights,
that he fully understood the consequences of his pleas, that he had consulted with his attorney and
that he was satisfied with his attorney’s representation, and that he was freely, knowingly, and
voluntarily entering the guilty pleas. (DE 6-3 at 45-46)
The State dismissed counts 1 and 2 of the indictment. (DE 1 at 6; DE 6-3 at 62-63). The trial
court entered judgments of conviction and sentenced Petitioner, in accordance with his plea
agreement, to a term of 35 years’ imprisonment pursuant to his conviction on aggravated kidnapping,
and to a concurrent sentence of 20 years’ imprisonment pursuant to his conviction on aggravated
assault. (DE 6-2 at 20-21, 48-49, 58-59).
Petitioner filed an application for a state writ of habeas corpus. Petitioner alleged there was
insufficient evidence to sustain his convictions; that his mother and her friend were not allowed into
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the courtroom after they were sworn as witnesses; that a witness testified regarding a prior sexual
assault charge which had been dismissed; that his right to a fair trial was violated because neither
he nor his witnesses were allowed to testify at his trial; and that his trial counsel’s performance was
deficient because counsel failed to investigate the extraneous offenses and bad acts listed on the
State’s notice of intent to introduce these offenses and acts. (DE 6-3 at 64-81).
On September 7, 2016, the Texas Court of Criminal Appeals denied relief without written
order. (DE 6-1).
B. Petitioner’s claims for federal habeas relief
Petitioner asserts he is entitled to relief because:
1. There was insufficient evidence to support his convictions;
2. He was denied his Sixth Amendment rights because his mother and her friend,
who were sworn as witnesses, were not allowed in the courtroom;
3. He was denied his right to due process because the State presented evidence
related to an extraneous offense that was not prosecuted;
4. He was denied his right to a fair trial because neither he nor his witnesses testified
at trial; and
5. His trial counsel’s performance was deficient because counsel failed to investigate
or challenge the extraneous offenses set forth in the State’s notice.
(DE 1 at 13–29).
Respondent contends some of Petitioner’s claims were procedurally defaulted in the state
courts and that some of Petitioner’s claims were waived by his entry of a guilty plea.
In reply to the answer to his petition, Petitioner alleges:
Ortiz’s pleas were compelled in a proceeding held in a closed courtroom in which his
witnesses were not allowed to attend. Pleas of guilty under such circumstances
cannot be deemed freely, voluntarily, and knowingly entered.
***
Ortiz’s pleas were compelled by the prosecutor’s use of false evidence. Pleas of
guilty under such circumstances cannot be deemed freely, voluntarily, and knowingly
entered.
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***
Ortiz’s pleas were compelled by the exclusion of his own testimony as well as that
of his other proposed witnesses. Pleas of guilty under such circumstances cannot be
deemed freely, voluntarily, and knowingly entered.
(DE 7 at 7-8).
Ortiz disputes the notion his claim of ineffective assistance of counsel was waived
by his pleas of guilty. A fair and liberal reading of the pro se state habeas proceedings
shows Ortiz adequately alleged prejudice as a result of trial counsel’s failure to
adequately investigate the extraneous offenses the state intended to offer had the case
gone to trial (Doc. 6 # 2 at 31 - 32 and Doc. 6 # 3 at 75). The application before this
Court alleges the prejudice Ortiz suffered as a result of trial counsel’s dismal
performance (Doc. 1 at 27 - 29).
(DE 7 at 11).
Thus, the relevant prejudice inquiry is whether Ortiz would have entered a plea of not
guilty and proceeded to trial had counsel not engaged in the complained of acts of
deficient performance. The claims have not been waived and Davis’s argument to the
contrary is not well founded. This Court should proceed to consider the merits of the
claims presented.
(DE 7 at 13).
Petitioner presented the same claims stated in his federal habeas petition to the Texas Court
of Criminal Appeals in his application for a state writ of habeas corpus. The Texas Court of Criminal
Appeals denied the application without written order, which functions as a denial of relief on the
merits, rather than a finding that the claims were procedurally barred. Bledsue v. Johnson, 188 F.3d
250, 257 (5th Cir. 1999); Jackson v. Johnson, 150 F.3d 520, 524 (5th Cir. 1998). Accordingly,
Petitioner exhausted his claims in the state courts and the claims are not procedurally barred.

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A.

The Antiterrorism and Effective Death Penalty Act of 1996

The Supreme Court summarized the basic principles established by the Court’s many cases
interpreting the 1996 Antiterrorism and Effective Death Penalty Act in Harrington v. Richter, 562
U.S. 86, 97–100 (2011). The Supreme Court noted that the starting point for any federal court
reviewing a state conviction is 28 U.S.C. § 2254, which states:
An application for a writ of habeas corpus on behalf of a person in custody pursuant
to the judgment of a State court shall not be granted with respect to any claim that
was adjudicated on the merits in State court proceedings unless the adjudication of
the claim–
(1)
resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States; or
(2)
resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented in the
State court proceeding.

28 U.S.C. § 2254(d). The Court stated that “[b]y its terms § 2254(d) bars relitigation of any claim
‘adjudicated on the merits’ in state court, subject only to the exceptions in §§ 2254(d)(1) and (d)(2).”
Harrington, 562 U.S. at 98.
Section 2254(d) permits the granting of federal habeas relief in only three circumstances:
(1) when the state court’s decision “was contrary to” federal law as clearly established by the
holdings of the Supreme Court; (2) when the state court’s decision involved an “unreasonable
application” of such law; or (3) when the decision “was based on an unreasonable determination of
the facts” in light of the record before the state court. Id. at 100, citing 28 U.S.C. § 2254(d), and
Williams v. Taylor, 529 U.S. 362, 412 (2000). Under the “contrary to” clause, a federal habeas court
may grant the writ if the state court arrives at a conclusion opposite to that reached by the Supreme
Court on a question of law or if the state court decides a case differently than the Supreme Court on
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a set of materially indistinguishable facts. Thaler v. Haynes, 559 U.S. 43, 47 (2010); Mitchell v.
Esparza, 540 U.S. 12, 10 (2003). Under the unreasonable application clause of § 2254(d)(1), a
federal court may grant the writ “if the state court identifies the correct governing legal principle
from . . . [the Supreme Court’s] decisions but unreasonably applies that principle to the facts of the
prisoner’s case.” Dowthitt v. Johnson, 230 F.3d 733, 741 (5th Cir. 2000)(quotation and citation
omitted).
Section 2254(e)(1) requires a federal court to presume state court factual determinations to
be correct, although a petitioner can rebut the presumption by clear and convincing evidence. MillerEl v. Dretke, 545 U.S. 231, 240 (2005). The Supreme Court has “explicitly left open the question
whether § 2254(e)(1) applies in every case presenting a challenge under § 2254(d)(2).” Wood v.
Allen, 558 U.S. 290, 300 (2010). The Fifth Circuit has held that, while section 2254(e)(1)’s clear and
convincing standard governs a state court’s resolution of “particular factual issues,” the unreasonable
determination standard of section 2254(d)(2) governs “the state court’s decision as a whole.” Blue
v. Thaler, 665 F.3d 647, 654 (5th Cir. 2011).
This standard of review applies to Petitioner’s federal habeas claims notwithstanding the fact
that the Texas Court of Criminal Appeals’ decision denying relief in Petitioner’s state habeas action
was unexplained. Although the state court did not make explicit findings, that does not mean the
court “merely arrived at a legal conclusion” unworthy of the presumption of correctness. Cantu v.
Collins, 967 F.2d 1006, 1015 (5th Cir. 1992), citing Marshall v. Lonberger, 459 U.S. 422, 433-34
(1983). If a state court summarily denies a petitioner’s claim, the Court’s authority under AEDPA
is limited to determining the reasonableness of the ultimate decision. Charles v. Thaler, 629 F.3d
494, 498-09 (5th Cir. 2011); Catalan v. Cockrell, 315 F.3d 491, 493 (5th Cir. 2002). When state
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habeas relief is denied without an opinion, the Court must assume that the state court applied the
proper “clearly established Federal law,” and then determine whether the state court decision was
“contrary to” or “an objectively unreasonable application of” that law. Schaetzle v. Cockrell, 343
F.3d 440, 443 (5th Cir. 2003).
B.

Petitioner’s claims for federal habeas relief

The Court must initially determine whether Petitioner’s guilty pleas were voluntary and
knowing, thereby constituting a valid waiver of any precedent, non-jurisdictional constitutional error.
On the morning of the second full day of trial, Petitioner entered a guilty plea to two of the
charges against him, pursuant to a written plea agreement. A valid guilty plea bars federal habeas
relief on claims arising from the alleged violation of constitutional rights prior to the entry of that
plea. Tollett v. Henderson, 411 U.S. 258, 267 (1973). This includes claims for ineffective assistance
of counsel, except those alleging that the ineffectiveness rendered the guilty plea involuntary. Smith
v. Estelle, 711 F.2d 677, 682 (5th Cir. 1983).
In an action seeking a federal writ of habeas corpus, whether a guilty plea was voluntary is
a question of federal law, and not a question of fact subject to the requirements of 28 U.S.C.
§ 2254(d). Marshall, 459 U.S. at 431-32 (holding that the voluntariness of a state prisoner’s guilty
plea is a question of law but that the historical facts underlying the entry of the plea are entitled to
presumption of correctness). The well-established federal law with regard to validity of a guilty plea
is that set forth in North Carolina v. Alford, 400 U.S. 25, 31 (1970): “The standard was and remains
whether the plea represents a voluntary and intelligent choice among the alternative courses of action
open to the defendant.” A guilty plea may be challenged only on the grounds that it was made on the
defective advice of counsel or that the defendant could not have understood the terms of his plea
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bargain. Brady v. United States, 397 U.S. 742, 755 (1970). Courts assessing whether a defendant’s
plea is valid look to “all of the relevant circumstances surrounding it,” id. at 749, and may consider
such factors as whether there was evidence of factual guilt. Matthew v. Johnson, 201 F.3d 353, 36465 (5th Cir. 2000).
When a defendant is represented by counsel and enters his plea upon the advice of counsel,
the voluntariness of the plea depends on whether counsel’s advice “was within the range of
competence demanded of attorneys in criminal cases.” McMann v. Richardson, 397 U.S. 759, 771
(1970). However, the issue with regard to “competent” counsel is not whether “a court would
retrospectively consider counsel’s advice [on a particular issue] to be right or wrong, but on whether
that advice was within the range of competence demanded of attorneys in criminal cases.” Id. at 77071. Petitioner does not make any specific allegation with regard to counsel’s advice as to the plea
agreement. Petitioner has not established that counsel’s advice was not within the range of
competence demanded of attorneys in criminal cases. Conclusory allegations are not sufficient to
establish that counsel’s performance was deficient or that Petitioner was prejudiced by counsel’s
allegedly deficient performance. Mallard v. Cain, 515 F.3d 379, 383 (5th Cir. 2008); Green v.
Johnson, 160 F.3d 1029, 1042 (5th Cir. 1998).
Although court records alone may be insufficient to establish a waiver of fundamental
constitutional rights if they are ambiguous, Williford v. Estelle, 672 F.2d 552, 554 (5th Cir. 1982),
the record in this case does not suffer from ambiguity. Petitioner signed a written statement averring
that his plea was knowing and voluntary and that he was satisfied with his counsel’s advice and
representation. The written guilty plea form signed by Petitioner is prima facie proof of the knowing
and intelligent nature of his guilty plea. Theriot v. Whitley, 18 F.3d 311, 314 (5th Cir. 1994);
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Bonvillain v. Blackburn, 780 F.2d 1248, 1250 (5th Cir. 1986). A defendant’s avowal that his plea
is freely and voluntarily made, and that he understands the nature of the charges against him and the
nature of the constitutional rights he is waiving, creates a presumption that his plea is valid.
Blackledge v. Allison, 431 U.S. 63, 74 (1977) (“Solemn declarations in open court carry a strong
presumption of verity.”); Matthew, 201 F.3d at 366; DeVille v. Whitley, 21 F.3d 654, 659 (5th Cir.
1994).
1. Insufficient evidence
Petitioner presented this same claim in his state application for habeas corpus relief.
Although the state courts did not specifically address this claim, the Court of Criminal Appeals has
long held that the sufficiency of the evidence may only be raised on direct appeal and may not be
raised in a state habeas proceeding. West v. Johnson, 92 F.3d 1385, 1389 n. 18 (5th Cir. 1996); Ex
parte McLain, 869 S.W.2d 349, 350 (Tex. Crim. App. 1994). Indeed, the Court of Criminal Appeals
reaffirmed that where a state habeas applicant challenges the sufficiency of the evidence in a state
habeas application and the court subsequently disposes of the application by entering a denial
without written order, the applicant’s sufficiency claim was denied because it was not cognizable.
Ex parte Grigsby, 137 S.W.3d 673, 674 (Tex. Crim. App. 2004). Thus, this procedural default in the
state courts procedurally bars this Court from addressing the merits of Petitioner’s sufficiency claim.
Ylst v. Nunnemaker, 501 U.S. 797, 801-07 (1991).
2. Sixth Amendment right to present witnesses
Petitioner asserts that his constitutional rights were violated because his mother and her
friend were sworn as witnesses but then not allowed into the courtroom, citing his right to
compulsory process. (DE 1 at 18-19). A guilty plea waives the right to the compulsory attendance
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of witnesses. Boykin v. Alabama, 395 U.S. 238, 244 (1969). Because Petitioner’s guilty pleas were
knowing and voluntary, the state court’s conclusion denying Petitioner’s compulsory service claim
was not clearly contrary to federal law.
3. Evidence of extraneous offenses
Petitioner contends his constitutional rights were violated because “the State presented
evidence from the alleged victim of an extraneous offense the State had previously acknowledged
it could not prove and moved to dismiss.” (DE 1 at 19). Petitioner’s guilty plea constituted a waiver
of his right to contest the admissibility of any evidence the State might have offered against him.
McMann, 397 U.S. at 767. Because Petitioner’s guilty pleas were knowing and voluntary, the state
court’s denial of Petitioner’s claim that he was denied his right to a fair jury trial was not clearly
contrary to federal law.
4. Compulsory process
Petitioner contends his right to compulsory process under the Sixth Amendment was denied
because “neither he, nor his witnesses, testified at trial.” (DE 1 at 19-20). A guilty plea waives the
right to the compulsory attendance of witnesses. Boykin, 395 U.S. at 244. Petitioner offers no
explanation as to how he was prevented from testifying at his trial or why his decision to plead guilty
was invalid because he was somehow prohibited from testifying. Because Petitioner’s guilty pleas
were knowing and voluntary, the state court’s conclusion denying Petitioner’s compulsory service
claim was not clearly contrary to federal law.
5. Ineffective assistance of trial counsel
Petitioner argues that his trial counsel’s performance was deficient because counsel failed
to investigate or challenge the extraneous offenses set forth in the State’s notice.
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Ineffective assistance of counsel claims in the context of the entry of a guilty plea are
governed by the United States Supreme Court’s opinion in Hill v. Lockhart, which adopted the
Strickland test. 474 U.S. 52, 57-58 (1985). With regard to the prejudice prong of the Strickland test,
Hill requires that, to establish prejudice, “the defendant must show that there is a reasonable
probability that, but for counsel’s errors, he would not have pleaded guilty and would have insisted
on going to trial.” Hill, 474 U.S. at 58-59. “To evaluate whether a defendant who has pleaded guilty
has been prejudiced by his counsel’s deficient performance, i.e., whether he would not have pleaded
guilty had his counsel not been deficient, we must evaluate what the outcome of a trial might have
been.” del Toro v. Quarterman, 498 F.3d 486, 490 (5th Cir. 2007). With regard to the application
of the Strickland test when the defendant pleaded guilty, the Fifth Circuit Court of Appeals has
advised that, even “where counsel has rendered totally ineffective assistance to a defendant entering
a guilty plea, the conviction should be upheld if the plea was voluntary. In such a case there is no
actual and substantial disadvantage to the defense.” DeVille v. Whitley, 21 F.3d 654, 659 (5th Cir.
1994).
Because Petitioner went to trial but accepted a plea offer prior to the case going to the jury,
to be entitled to habeas relief Petitioner must establish that, but for his counsel’s performance, he
would not have entered the plea agreement, but instead would have continued with the trial and
allowed a jury to return a verdict. Petitioner has not made such a showing. Petitioner makes only a
conclusory allegation that his counsel’s performance was deficient because counsel allegedly failed
to investigate the single prior conviction and numerous “bad acts” the State included in its “Notice
of Intent to Introduce Evidence of Extraneous Crimes, Wrongs, and Bad Acts.”1
1

The Notice is at DE 6-2 at 33-42.

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“An attorney has a duty to independently investigate the charges against his client.” Bower
v. Quarterman, 497 F.3d 459, 467 (5th Cir. 2007) (citation omitted). “To establish that an attorney
was ineffective for failure to investigate, a petitioner must allege with specificity what the
investigation would have revealed and how it would have changed the outcome of the trial.” Miller
v. Dretke, 420 F.3d 356, 361 (5th Cir. 2005). Petitioner makes only conclusory allegations that any
subpoenaed testimony regarding the acts listed in the notice should not have been admitted at trial,
which allegations are not sufficient to establish that counsel’s performance was deficient or that
Petitioner was prejudiced by counsel’s performance. Mallard v. Cain, 515 F.3d 379, 383 (5th Cir.
2008); Green v. Johnson, 160 F.3d 1029, 1042 (5th Cir. 1998). It is entirely plausible that, after a
day of testimony from the state’s witnesses regarding Petitioner’s lengthy history of domestic
violence, presumably including Ms. Ortiz’ testimony that Petitioner regularly assaulted her
throughout their twelve-year marriage (as delineated in the Notice of Intent), Petitioner chose to
plead guilty to some of the charges against him in order to avoid a harsh sentence if found guilty on
all four of the counts stated in the indictment.
The record does not suggest that Petitioner pleaded guilty involuntarily or for some
improperly coercive reason; by entering guilty pleas, Petitioner reduced or eliminated the chance that
he would receive an extended sentence or consecutive terms of imprisonment subsequent to being
found guilty on four, rather than two of the charges against him, a rational decision. Padilla v.
Kentucky, 559 U.S. 356, 372 (2010) (“to obtain relief on this type of claim, a petitioner must
convince the court that a decision to reject the plea bargain would have been rational under the
circumstances.”); Uresti v. Lynaugh, 821 F.2d 1099, 1101-02 (5th Cir. 1987).

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Accordingly, the state court’s denial of relief on this claim was not contrary to or an
unreasonable application of federal law, and Petitioner is not entitled to habeas relief on this claim.
CONCLUSION
Petitioner raised all of his claims for federal habeas relief in his state application for a writ
of habeas corpus, which application was denied without written order. Petitioner waived all nonjurisdictional constitutional claims regarding his state criminal proceedings by entering a knowing
and voluntary plea to two of the counts of the indictment. Accordingly, the Texas Court of Criminal
Appeals’ decision denying relief on the claims presented in Petitioner’s federal habeas petition was
not contrary to or an unreasonable application of federal law, and Petitioner is not entitled to federal
habeas relief these claims.
CERTIFICATE OF APPEALABILITY
An appeal may not be taken to the court of appeals from a final order in a habeas corpus
proceeding “unless a circuit justice or judge issues a certificate of appealability.” 28 U.S.C. § 2253(c)
(1)(A). Pursuant to Rule 11 of the Federal Rules Governing Section 2254 Cases, effective
December 1, 2009, the district court must issue or deny a certificate of appealability when it enters
a final order adverse to the applicant.
A certificate of appealability may issue only if a petitioner has made a substantial showing
of the denial of a constitutional right. 28 U.S.C. § 2253(c)(2). The Supreme Court fully explained
the requirement associated with a “substantial showing of the denial of a constitutional right” in
Slack v. McDaniel, 529 U.S. 473, 484 (2000). In cases where a district court rejected a petitioner’s
constitutional claims on the merits, “the petitioner must demonstrate that reasonable jurists would
find the district court’s assessment of the constitutional claims debatable or wrong.” Id. “When a
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district court denies a habeas petition on procedural grounds without reaching the petitioner’s
underlying constitutional claim, a COA should issue when the petitioner shows, at least, that jurists
of reason would find it debatable whether the petition states a valid claim of the denial of a
constitutional right and that jurists of reason would find it debatable whether the district court was
correct in its procedural ruling.” Id.
In this case, reasonable jurists could not debate the dismissal or denial of the Petitioner’s
section 2254 petition on substantive or procedural grounds, nor find that the issues presented are
adequate to deserve encouragement to proceed. Miller-El v. Cockrell, 537 U.S. 322, 327 (2003)
(citing Slack, 529 U.S. at 484). Accordingly, it is respectfully recommended that the Court shall not
issue a certificate of appealability.
It is therefore ORDERED that the Application for Writ of Habeas Corpus [DE 1], docketed
by Petitioner on January 17, 2017, is DENIED.
It is further ORDERED that a certificate of appealability is DENIED.

SIGNED on June 13, 2017.

ROBERT PITMAN
UNITED STATES DISTRICT JUDGE

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