Ortiz v. Johnson

• Court: Court of Appeals for the Fifth Circuit
• Decided: December 14, 1999
• Docket: 98-41269
• Status: Unpublished

Opinion

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 98-41269 Summary Calendar

OSIEL VALDEZ ORTIZ,

Petitioner-Appellant,

versus

GARY L. JOHNSON, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE, INSTITUTIONAL DIVISION,

Respondent-Appellee.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. B-96-CV-235 --------------------

December 10, 1999

Before REAVLEY, SMITH and DENNIS, Circuit Judges.

PER CURIAM:*

Osiel Valdez Ortiz, Texas prisoner # 524306, appeals the

district court’s grant of summary judgment denying his 28 U.S.C.

§ 2254 petition. The district court granted Ortiz a certificate

of appealability.

Ortiz argues that his conviction following his nolo

contendere plea for aggravated robbery violated the Double

Jeopardy Clause because the trial court had previously accepted

Ortiz’s guilty plea to the lesser-included offense of robbery.

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. No. 98-41269 -2-

The Texas Court of Criminal Appeals found that the trial court

had conditionally accepted the first plea until the court had

approved the presentence report and the plea agreement, and that

“[b]ecause we have found that the trial court did not accept the

plea bargain, jeopardy did not attach in the first plea

proceeding.” Ortiz v. State, 933 S.W.2d 102, 107 (Tex. Crim.

App. 1996).

An application for a writ of habeas corpus cannot be granted

unless the decision of the state court “was contrary to, or

involved an unreasonable application of, clearly established

Federal law, as determined by the Supreme Court of the United

States.” 28 U.S.C. § 2254(d)(1). “[W]e can grant habeas corpus

relief only if a state court decision is so clearly incorrect

that it would not be debatable among reasonable jurists.” Mata

v. Johnson, 99 F.3d 1261, 1267 (5th Cir. 1996) (quoting Drinkard

v. Johnson, 97 F.3d 751, 769 (5th Cir. 1996), overruled in part

on other grounds by Lindh v. Murphy, 521 U.S. 320 (1997)),

vacated in part on other grounds on rehearing, 105 F.3d 209 (5th

Cir. 1997). Ortiz has not made such a showing. See Ohio v.

Johnson, 467 U.S. 493 (1984); United States v. Foy, 28 F.3d 464,

471 n.13 (5th Cir. 1994); United States v. Santiago Soto, 825

F.2d 616 (1st Cir. 1987).

AFFIRMED.