Ortez v. Cockrell

*Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT
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No. 01-41182
(Summary Calendar)
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JAMES BRYAN ORTEZ,
Petitioner - Appellant,
versus
JANIE COCKRELL, DIRECTOR, TEXAS DEPARTMENT OF
CRIMINAL JUSTICE, INSTITUTIONAL DIVISION,
Respondent - Appellee.
Appeal from the United States District Court
For the Eastern District of Texas
USDC No. 4:99-CV-246
June 12, 2002
Before JONES, SMITH and EMILIO M. GARZA, Circuit Judges.
PER CURIAM:*
James Bryan Ortez, Texas prisoner # 778260, requests a certificate of appealability (“COA”)
to appeal the district court’s denial of his petition for a writ of habeas corpus pursuant to 28 U.S.C.

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§ 2254. Ortez’s petition asserted claims of prosecutorial misconduct, trial-court bias and errors, and
ineffective assistance of trial and appellate counsel. The district court determined that Ortez’s
prosecutorial-misconduct claims were procedurally barred due to application of the Texas
contemporaneous-objection rule, and that they were not cognizable on federal habeas review because
they had been raised and rejected in Ortez’s state direct appeal. The district court did not address
Ortez’s argument that he had demonstrated cause and prejudice or a miscarriage of justice sufficient
to overcome any procedural default. The district court also determined that Ortez’s trial-court bias
and many of his ineffective-assistance claims were not cognizable on federal habeas review because
they too had been raised and rejected in Ortez’s state direct appeal.
To obtain a COA, Ortez must make a substantial showing of the denial of a constitutional
right. 28 U.S.C. § 2253(c)(2). This requires Ortez to demonstrate 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). When the district court dismisses a petition on procedural grounds, the
prisoner must make a two-pronged showing in order to obtain a COA: “[T]hat 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 i n its procedural
ruling.” Id. Determining whether a COA should issue when the petition was dismissed on procedural
grounds has two components, one directed at the underlying constitutional claims and one directed
at the district court's procedural holding; 28 U.S.C. § 2253 mandates that both showings be made
before the court of appeals may entertain the appeal. Id.
It was error for the district court to conclude that many of Ortez’s claims were not cognizable
because they had been raised and rejected on direct state appeal. As authority, the district court cited

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1Although the district court did review the merits of some of Ortez’s ineffective-assistance
claims, in one instance it based its rejection of the claim, without analysis, on the fact that the
underlying substantive claim had been raised and rejected in Ortez’s direct state appeal. Several of
Ortez’s other ineffective-assistance claims were rejected because Ortez had not made a showing of
prejudice; it is unclear what effect, if any, review of Ortez’s other ineffective-assistance claims would
have on this determination.
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Ex parte Torres, 943 S.W.2d 469, 475 (Tex. Crim. App. 1997) (en banc). The holding of Ex parte
Torres concerns state habeas corpus proceedings and it is irrelevant to whether a petitioner's federal
habeas claims are cognizable. Id. at 475.
Under Slack, in addition to showing debatable procedural error, Ortez must also show that
his petition states a valid claim of the denial of a constitutional right. See Slack, 529 U.S. at 484.
Ortez’s petition asserts claims implicating his constitutional rights to due process and to the effective
assistance of counsel. However, the merits of many of his claims were not reviewed in the district
court on account of the court’s reliance on Ex parte Torres.
Accordingly, COA is hereby GRANTED. The judgment of the district court is VACATED
and this case is REMANDED for further proceedings.1 See Whitehead v. Johnson, 157 F.3d 384,
388 (5th Cir. 1998) (court may grant COA, vacate judgment, and remand without requiring further
briefing in appropriate case).

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