United States District Court, S.D. Texas, Galveston Division
MEMORANDUM OPINION AND ORDER
C. Hanks Jr. United States District Judge
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.
April 11, 2001, Ortiz was convicted of aggravated robbery in
Galveston County Cause No. 00CR1009. 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which was affirmed on direct appeal in an unpublished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).
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).
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).
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.
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).
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).
the petition must be dismissed as an unauthorized successive
CERTIFICATE OF APPEALABILITY
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.
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 ...