Ortez v. Dretke

* 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this opinion should not be published and is not precedent except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
F I L E D
September 1, 2004
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 03-40724
Summary Calendar
JAMES BRYAN ORTEZ,
Petitioner-Appellant,
versus
DOUG DRETKE, DIRECTOR, TEXAS DEPARTMENT OF
CRIMINAL JUSTICE, CORRECTIONAL INSTITUTIONS
DIVISION,
Respondent-Appellee.
--------------------
Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 4:99-CV-246
--------------------
Before DAVIS, SMITH, and DENNIS, Circuit Judges.
PER CURIAM:*
James Bryan Ortez, Texas prisoner #778260, was granted a
certificate of appealability (COA) after it was decided that
jurists of reason would find it debatable whether the district
court was correct in dismissing his prosecutorial-misconduct
claims as procedurally barred. The district court determined
that all seven of Ortez’s claims of prosecutorial misconduct were
barred under the Texas contemporaneous-objection rule. Our

-- 1 of 5 --

No. 03-40724
-2-
review of the district court’s determination is de novo. See
Boyd v. Scott, 45 F.3d 876, 877 (5th Cir. 1994).
“A federal court will not review a question of federal law
decided by a state court if the decision of that state court
rests on a state ground that is both independent of the merits of
the federal claim and adequate to support that judgment.” Amos
v. Scott, 61 F.3d 333, 338 (5th Cir. 1995). “The Texas
contemporaneous objection rule constitutes an adequate and
independent state ground that procedurally bars federal habeas
review of a petitioner’s claims.” Jackson v. Johnson, 194 F.3d
641, 652 (5th Cir. 1999) (internal quotation marks omitted).
“[I]n order to fulfill the independence requirement, the
last state court rendering a judgment must ‘clearly and
expressly’ indicate that its judgment rests on a state procedural
bar.” Glover v. Cain, 128 F.3d 900, 902 (5th Cir. 1997).
Although the state habeas court’s order did not specify which
claims of prosecutorial misconduct were procedurally defaulted,
the court clearly and expressly relied on the bar.
A review of the record reveals that no objection was made
concerning Ortez’s claim that the prosecutor (1) commented on his
failure to testify; (2) repeatedly used the word “rape” to
inflame the jury; (3) made an improper closing argument;
(4) elicited testimony of other bad acts and referred to those
acts in her closing argument; (5) improperly alerted the jury
panel to his previous convictions during the voir dire; and (6)

-- 2 of 5 --

No. 03-40724
-3-
referred to him as a “serial rapist” during the punishment phase.
Ortez must thus overcome the procedural bar in order to obtain
review of these claims. See Styron v. Johnson, 262 F.3d 438, 454
(5th Cir. 2001).
In order to overcome the procedural bar, Ortez must
“demonstrate cause for the default and actual prejudice as a
result of the alleged violation of federal law, or demonstrate
that failure to consider the claims will result in a fundamental
miscarriage of justice.” Coleman v. Thompson, 501 U.S. 722, 750
(1991). Ortez suggests that he has “cause” for his procedural
default because of “the failure of defense counsel to
contemporaneously object or otherwise preserve the errors for
review.”
Although an attorney’s failure to make objections may
constitute “cause” for a procedural default, the petitioner must
show that counsel’s failure to object amounted to ineffective
assistance of counsel. Cotton v. Cockrell, 343 F.3d 746, 754
(5th Cir. 2003), cert. denied, 124 S. Ct. 1417 (2004). Ortez
thus must “show that his counsel’s performance was deficient and
that he was actually prejudiced by the deficient performance.”
Id. He “must show that the prejudice rendered the trial
fundamentally unfair or unreliable.” Id. (internal quotation
marks omitted). Ortez fails to make such a showing.
Ortez also fails to show a risk of a fundamental miscarriage
of justice. See Coleman, 501 U.S. at 750. To make such a

-- 3 of 5 --

No. 03-40724
-4-
showing, Ortez must demonstrate that he is actually innocent of
the offense. See Murray v. Carrier, 477 U.S. 496, 478 (1986).
In affirming Ortez’s conviction, the state appellate court
noted that the victim, who was 14 years old at the time of the
assault, was brought to the hospital for an examination after the
assault. The hospital examination revealed Ortez’s semen on the
victim’s vaginal swab, panties, and jeans. The victim testified
that she did not consent to having sex with Ortez. There was no
fundamental miscarriage of justice. See Murray, 477 U.S. at 478.
The district court did not err in its determination that six of
Ortez’s seven prosecutorial-misconduct claims were procedurally
barred.
Ortez’s counsel did object to the prosecutor’s allegedly
improper questioning of the victim’s step-mother. Accordingly,
that claim was not procedurally barred. Nevertheless, the denial
of federal habeas relief may be affirmed on any ground supported
by the record. Scott v. Johnson, 227 F.3d 260, 262 (5th Cir.
2000).
In order to obtain habeas relief, Ortez must show that the
allegedly improper question rendered the trial fundamentally
unfair. See Dowthitt v. Johnson, 230 F.3d 733, 755 (5th Cir.
2000). Ortez acknowledges that the allegedly improper question
by the prosecutor did not concern either him or the victim, but
he argues that it was improper because it commented on the
integrity and credibility of the witness. However, because the

-- 4 of 5 --

No. 03-40724
-5-
witness did not answer the question, the jury could not have made
any such inference. Moreover, when the prosecutor objected to
the question, the trial court sustained the objection, and
instructed the jury to disregard the question.
“Jurors are presumed to follow their instructions.” Woods
v. Johnson, 75 F.3d 1017, 1036 n.29 (5th Cir. 1996). Thus, any
possible prejudice that resulted from the prosecutor’s question
was cured by the trial court’s curative instruction. Because
Ortez has not shown that the prosecutor’s unanswered question
rendered the trial fundamentally unfair, he is not entitled to
habeas corpus relief on his claim. See Dowthitt, 230 F.3d at
755. The judgment of the district court is
AFFIRMED.

-- 5 of 5 --