United States District Court, S.D. Texas, Brownsville Division
MAGISTRATE JUDGE'S REPORT AND
IGNACIO TORTEYA, III UNITED STATES MAGISTRATE JUDGE.
Court is in receipt of Respondent Lorie Davis's Amended
Motion for Summary Judgment with Brief in Support
(hereinafter, Davis's “Amended Motion” or
“Amended Motion for Summary Judgment”). Dkt. No.
26. For the reasons provided below, it is recommended that
the Court: (1) GRANT Davis's Amended
Motion for Summary Judgment; (2) DISMISS
Petitioner Valentin Ortiz's Amended 28 U.S.C. § 2254
Petition (hereinafter, Ortiz's “Amended
Petition” or “Amended § 2254
Petition”), as supplemented; (3)
DECLINE to issue a certificate of
appealability; and (4) DIRECT the Clerk of
the Court to close this civil action.
Court has jurisdiction over the subject matter and the
parties pursuant to 28 U.S.C. § 2241, and § 2254,
which provide that jurisdiction is proper in the federal
district where the inmate is confined, or where his state
conviction was obtained. See 28 U.S.C. §
124(b)(5); Wadsworth v. Johnson, 235 F.3d 959,
961-62 (5th Cir. 2000).
April 20, 2000, a jury convicted Ortiz of murder in Cameron
County, Texas. Dkt. No. 18-5 at 108-112. The trial court
sentenced Ortiz to fifty years of imprisonment and assessed a
$10, 000.00 fine. Id. at 108, 110. The Texas
Thirteenth Court of Appeals affirmed Ortiz's conviction
on June 13, 2002. Dkt. No. 17-5 at 9; Ortiz v.
State, No. 13-00-00454-CR, 2002 WL 34250168 (Tex. App.-
Corpus Christi-Edinburg Jun. 13, 2002). The Thirteenth Court
of Appeals summarized the underlying facts of Ortiz's
case as follows:
Ortiz worked as an “enforcer” for a drug dealing
organization. The victim, Jose Alonso Ramos, worked as a
distributor, or “middle manager, ” for the
organization. On the Saturday night before the incident in
question, Ortiz, Ramos, and others associated with the drug
organization went to a nightclub in Matamoros, Mexico. At one
point during the evening, Ramos told Ortiz not to smoke
marijuana while they were at the club. Ortiz became upset and
started to yell at Ramos. Ramos left the club and went home.
The next weekend, Ortiz returned to the same nightclub and
was approached by a group of men who told him he better
“be cool” or he would be killed. Ortiz assumed
Ramos had the men threaten him because of the events at the
club the previous weekend. Ortiz and the men left the club
and went to a friend's house to “party.” At
the party, they ran out of beer. Ortiz and his friend,
Alberto Sanchez, went to Ramos's house to get more beer.
As Ramos brought beer out to their car, Ortiz approached
Ramos and hit him in the head with a beer bottle. Ortiz then
put Ramos in the car, and he and Sanchez drove to a vacant
lot. Ortiz removed Ramos from the car, “pistol
whipped” him, then shot him fourteen times. Five shots
were to Ramos's head.
Ortiz v. State, 2002 WL 34250168 at 1.
filed a motion for an extension of time to file a motion for
rehearing on June 28, 2002. Dkt. No. 17-6. The Thirteenth
Court of Appeals granted Ortiz's motion (Dkt. No. 17-7),
but Ortiz never filed a motion for rehearing,  and he did not
file a petition for discretionary review. Dkt. No. 1 at 7.
More than 11 years later, on November 18, 2013, Ortiz filed a
state application for writ of habeas corpus. Dkt. No. 18-5 at
4, 6. On January 29, 2014, the Texas Court of Criminal
Appeals denied his application without written order, upon
the findings of the trial court, without a hearing.
Id. at 2, 72-86.
11, 2017, Ortiz filed an untitled motion in the Houston
Division which attacked his conviction and sought “a
certificate of appeallability to federal courts” to
“prove [his] innocence.” Dkt. No. 1 (errors in
original). In this motion, Ortiz asked the court to consider
his claims, stating that the “Court of Criminal Appeal
would not respond” to his “request to request of
certificate of appealability[.]” Id. at 2
(errors in original). Ortiz then filed his instant Amended
§ 2254 Petition (Dkt. No. 5), and United States District
Judge Melinda Harmon transferred Ortiz's case to this
Division. Dkt. No. 8.
receipt of Ortiz's case, this Court ordered Davis to
respond to Ortiz's Amended Petition, as supplemented by
his untitled motion, on or before October 30, 2017. Dkt. No.
9. Davis filed a motion for summary judgment (hereinafter,
Davis's “First Motion for Summary Judgment”),
but her motion failed to comply with the Court's
instructions regarding citations to the record. Dkt. No. 14.
Due to this noncompliance, the Court denied Davis's First
Motion for Summary Judgment without prejudice to refiling.
See Dkt. No. 19 (ordering Davis to file an amended
motion for summary judgment which complied with the
Court's instructions). Despite the Court's ruling, or
perhaps in ignorance of it, Ortiz filed a response to
Davis's First Motion for Summary Judgment (hereinafter,
Ortiz's “First Response”) on November 14,
2017. Dkt. No. 24.
filed her instant Amended Motion for Summary Judgment on
November 28, 2017. Dkt. No. 26. Davis's Amended Motion
asserts that Ortiz's claims are time-barred, and that
Ortiz is not entitled to equitable tolling. Id. at
6-10. On January 9, 2018, attorney Octavio M. Rivera Bujosa
filed a Motion for Leave to File Notice of Appearance on
Behalf of Petitioner Valentin Ortiz. Dkt. No. 32. The Court
granted this motion, along with a motion requesting an
extension of time to file a response to Davis's Amended
Motion for Summary Judgment. Dkt. Nos. 33 and 38. Despite Mr.
Bujosa's representation, Ortiz filed a pro se
“Response to Motion Amended Summary Judgement
(hereinafter, Ortiz's “Pro se Response”) on
January 12, 2018. Dkt. No. 34 (errors in original).
Bujosa then filed a “Response to Respondent Davis's
Amended Motion for Summary Judgment” (hereinafter,
“Ortiz's Response”) on February 26, 2017.
Dkt. No. 39. Ortiz's Response acknowledges that his
§ 2254 claims are time-barred, and that he is not
entitled to equitable tolling. Id. at 2.
Nevertheless, Ortiz suggests that his claims should be heard
because he can make a credible showing of actual innocence.
Id. at 2-3.
applicable provisions of the Antiterrorism and Effective
Death Penalty Act (“AEDPA”) govern petitions
brought under 28 U.S.C. § 2254. See Lindh v.
Murphy, 521 U.S. 320, 335-336 (1997). Pursuant to the
AEDPA, a federal court may not grant habeas relief based upon
a claim that was adjudicated on the merits by a state court
unless the state court's decision: (1) “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) “was based on
an unreasonable determination ...