Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Ortiz v. Davis

United States District Court, S.D. Texas, Brownsville Division

April 2, 2018

VALENTIN ORTIZ, Petitioner,
v.
LORIE DAVIS, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent.

          MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

          IGNACIO TORTEYA, III UNITED STATES MAGISTRATE JUDGE.

         The 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.

         I. Jurisdiction

         The 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).

         II. Background

         On 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.

         Ortiz 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, [1] 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.

         On July 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.

         Upon 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.

         Davis 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).

         Mr. 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.

         III. Governing Law

         The applicable provisions of the Antiterrorism and Effective Death Penalty Act (“AEDPA”)[2] 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 ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.