Ortiz v. Quarterman ( 2007 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
November 6, 2007
No. 06-70020
USDC No. 3:03-CV-00026 Charles R. Fulbruge III
Clerk
RICARDO ORTIZ
Petitioner-Appellant
v.
NATHANIEL QUARTERMAN,
DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE,
CORRECTIONAL INSTITUTIONS DIVISION
Respondent-Appellee
Appeal from the United States District Court
for the Western District of Texas
ON PETITION FOR REHEARING
Before SMITH, GARZA, and PRADO, Circuit Judges.
PER CURIAM:
Texas death row inmate Ricardo Ortiz petitions for rehearing of his
application for a certificate of appealability (COA) on the issue of whether his
counsel rendered unconstitutionally ineffective assistance by failing to object to
the exclusion of eighteen prospective jurors. The petition is DENIED.
The brief that Ortiz filed in support of his motion for a COA raised two
issues: (1) whether the State court unconstitutionally excluded nineteen1
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Ortiz’s trial counsel objected to the exclusion of one prospective juror, Anna Doporto,
but not to the other eighteen prospective jurors who similarly were excluded.
No. 06-70020
prospective jurors who were unalterably opposed to the death penalty and
therefore unable to vote to impose the death penalty under any circumstances;
and (2) whether the Texas death penalty scheme is unconstitutional because it
does not require the State to prove beyond a reasonable doubt the absence of
mitigating factors that would warrant a sentence of life imprisonment rather
than a sentence of death. Although, in the proceedings below, Ortiz did raise a
claim that his trial counsel rendered ineffective assistance by failing to object to
the exclusion of these eighteen prospective jurors, he did not raise this
ineffective assistance claim in the brief in support of his application for a COA
in this Court. Accordingly, Ortiz has waived this ineffective assistance claim.
See Hughes v. Johnson, 191 F.3d 607, 612-13 (5th Cir. 1999).
Even if Ortiz had not waived this ineffective assistance claim, we would
not have granted his application for a COA. To obtain a COA, a petitioner must
make a substantial showing of the denial of a constitutional right. See 28 U.S.C.
§ 2253(c)(2); see also Miller-El v. Cockrell, 537 U.S. 322, 336 (2003). When the
constitutional claims have been rejected on the merits, the COA applicant must
show “that reasonable jurists would find the district court’s assessment of the
constitutional claims debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484
(2000). The District Court rejected Ortiz’s ineffective assistance claim, finding
that the State court properly excluded the eighteen prospective jurors; thus,
they would have been excluded whether or not Ortiz’s counsel had interposed an
objection. We agree and hold that reasonable jurists would not debate this
determination. Accordingly, Ortiz has not made the requisite showing to obtain
a COA for this ineffective assistance of counsel claim. See id.For the foregoing reasons, the Petition for Rehearing is DENIED.
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