Ortiz v. Livingston
| Decision Date | 15 March 2006 |
| Docket Number | No. EP-03-CA-026-DB.,EP-03-CA-026-DB. |
| Citation | 420 F.Supp.2d 670 |
| Parties | Ricardo ORTIZ, Petitioner, v. Brad LIVINGSTON, Director, Texas Department of Criminal Justice, Institutional Division, Respondent. |
| Court | U.S. District Court — Western District of Texas |
Robin R. Norris, Jr., El Paso, TX, Matthew DeKoatz, El Paso, TX, for Petitioner.
Ellen Stewart-Klein, Office of Attorney General, John Andrew Hutton, Tex. Atty. Gen., Austin, TX, for Respondent.
Before the Court is Petitioner Ricardo Ortiz's ("Ortiz") federal petition for habeas corpus relief, filed through counsel on February 9, 2004. Therein, Ortiz attacks his state conviction and death sentence for the capital murder of Gerardo Garcia ("Garcia"), pursuant to Texas Penal Code § 19.03(a)(2).1 After carefully considering the record below and the Parties' pleadings, the Court finds that Ground One of Ortiz's Petition is partially barred from a federal merits review. As to the portion of Ground One and Ortiz's six remaining grounds of error that are properly before the Court, the Court concludes that Ortiz has not established that he is entitled to relief under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEPA"). Although the Court will grant Ortiz a Certificate of Appealability regarding Ground Five of his federal petition (i.e., the trial court's alleged violation of the Ex Post Facto Clause), it will decline to certify his remaining issues for appeal.
Garcia was found dead in the El Paso County Jail on August 19, 1997.2 A sheriff's detective found a syringe in the section of the jail where Garcia had been confined.3 On September 17, 1998, the state Grand Jury sitting in El Paso County, Texas, returned a one-count Indictment against Ortiz, charging him with Garcia's murder. Trial on the merits began on June 14, 1999.
The State presented the following evidence in support of its case.
Juan Contin, M.D. ("Contin"), Chief Medical Examiner for El Paso County, autopsied Garcia's body on August 20, 1997. Contin later testified at trial regarding his findings.4
Contin explained to the jury that, when heroin is injected into or otherwise enters the bloodstream, the body quickly metabolizes it into various other substances, primarily morphine.5 Contin further related that, in his professional experience, morphine in its pure state was not available on the streets of El Paso, whereas heroin was readily obtainable.6 Given the high levels of morphine he found in Garcia's blood and the street-level unavailability of pure morphine, Contin concluded that Garcia died of acute narcotism, specifically, a heroin overdose.7
Contin recounted that the morphine levels in Garcia's body were unusually elevated, even for an overdose case.8 Contin told the jury that his office had investigated seventy-six deaths from acute narcotism from January 1995 to September 1997.9 At a concentration of 523 nanograms per milliliter (ngs/ml), Contin explained, the amount of morphine in Garcia's blood was three times greater than that encountered in the average overdose victim (i.e., 170 ng/ml).10
Contin stated that, upon examining Garcia's body, he found a single fresh needle mark on Garcia's left arm, in the fold between the upper arm and forearm.11 Contin, however, did not observe any needle track marks.12 Contin informed the jury that he worked part-time in a methadone center and thereby had encountered hundreds of individuals addicted to heroin.13 In Contin's opinion, the absence of needle track marks on Garcia's body suggested that Garcia was not a heroin addict.14
Mario Hernandez ("Hernandez") was housed in the same section of the El Paso County Jail as Garcia when Garcia died.15 Hernandez testified that this particular section of the jail was known as the "Texas Syndicate Tank" because individuals confined there were associated with the Texas Syndicate gang.16 Hernandez explained that he did not belong to the gang, but was placed in the tank because of his cousin's affiliation with the organization.17 Hernandez stated that he knew neither Ortiz nor Garcia before encountering them at the jail.18
Upon arrival, Ortiz took control of the tank.19 As "tank boss," Ortiz dictated what other inmates in the tank could request from the jail commissary and dealt with the jail guards on behalf of the other inmates.20 Ortiz took up residence in cell number three within the tank.21 Jail guards placed Garcia in the tank about two weeks after Ortiz arrived.22 Garcia lived in cell number five, along with an inmate named Mike Crenshaw ("Crenshaw").23 Hernandez recalled that, when the guards brought Garcia into the tank, he saw Ortiz "freak" and immediately summon Garcia into cell number three.24 Another inmate, Hector Hernandez, joined Ortiz and Garcia.25 Mario Hernandez subsequently overheard Ortiz and Garcia engage in a heated exchange.26 Ortiz expressed great concern that Garcia had been apprehended for certain bank robberies, and the men argued about whether Garcia's arrest resulted from his being incriminated by Garcia's girlfriend or Ortiz's wife.27
Hernandez testified that, to his knowledge, there were no narcotics in the tank before Ortiz was placed there.28 After Ortiz arrived, Ortiz commented daily that he wanted to bring heroin into the jail.29 Ortiz asked Hernandez once if he knew where Ortiz could "score" (i.e., obtain drugs), but Hernandez did not have a telephone number.30 Hernandez also overheard Ortiz make more than ten telephone calls, trying to sell a trailer in order to generate funds with which to purchase heroin.31
On the evening of the murder, during visiting hours, Ortiz succeeded in obtaining heroin.32 Hernandez knew this because Paul Walker ("Walker"), the inmate who had accompanied Ortiz to visitation, told Hernandez that he and Ortiz had scored.33 In addition, Mario, a heroin user himself, knew the signs of someone high on heroin.34 He stated that Ortiz and Walker were visibly under the drug's influence when they returned from the visitors booth.35
Upon Ortiz and Walker's return from visitation, Walker entered cell number five, the cell which Crenshaw and Garcia shared.36 Garcia was not in his cell, but was playing cards at a table in the tank's common area.37 Ortiz returned to his own cell for a minute or two, and afterward went to Garcia and Crenshaw's cell.38 By that time, two additional inmates had joined Walker in cell number five.39 The heroin had been brought to the cell as well.40 The men called for Garcia to join them in the cell.41
Hernandez sat at a table in the tank's day room.42 The table was about five feet away from the doorway to cell number five and Hernandez could see inside.43 Hernandez recalled that Garcia was sitting on a bunk bed within the cell, surrounded by the four men.44 Ortiz handed another inmate some black tar heroin to "cook" and the inmate dissolved the drug in water and drew the substance into a syringe.45 The inmate handed the syringe to Ortiz.46 Ortiz looked at Garcia.47 He took Garcia's arm.48 Garcia turned away.49 To Hernandez, it seemed that Garcia did not want to be injected.50 Despite Garcia's posture, Ortiz nonetheless inserted the needle and emptied the syringe's contents into Garcia's arm.51 Garcia immediately went into spasms as if he were overdosing.52
Hernandez's cellmate, identified only as "Davalos," noticed that Hernandez was closely watching the events inside cell number five and suggested that they return to their own cell.53 While Hernandez and Davalos were heading back to their bunks, Hernandez witnessed Ortiz and another inmate lift Garcia, place him on the bottom bunk of the cell, and cover him with a blanket.54 When Ortiz realized that Hernandez was watching his actions, Ortiz extinguished the lights in Garcia's cell.55
Ortiz, who normally did not associate with them, then invited Hernandez and Davalos to his cell and offered them heroin, which they accepted.56 Ortiz stated that Garcia had overdosed and directed Hernandez and Davalos not to alert anyone.57 Instead, Ortiz told them that they should just let the guards find the body.58 If, after the body was discovered, anyone asked them what had happened, Ortiz suggested that Hernandez and Davalos say only that Garcia had brought the heroin into the jail with him, been stingy with it, and injected it all himself.59
When the guards came the next morning to release the inmates from the tank for breakfast, Ortiz told them that Garcia was asleep and did not want to eat.60 The guards left without checking on Garcia.61 When the guards came to release the inmates for the next meal, Ortiz again told them that Garcia was sleeping.62 The third time the guards came by, they entered Garcia's cell and discovered him dead.63
Hector Hernandez ("Hector") resided in the same tank as Ortiz and Garcia when the murder occurred.64 Hector stated that he was not a Texas Syndicate member, but rather a prospect whom Ortiz was considering bringing into the organization.65 Hector testified that, before the events in question, he had met Ortiz through his girlfriend's mother, Diane Najera, whose husband belonged to the gang.66
While on probation for burglary of a habitation, Hector was caught attempting to bring heroin into the jail for Ortiz.67 The authorities subsequently charged Hector with possession of heroin and the State of Texas ("the State") moved to revoke his probation.68 Ortiz arranged for Hector to be placed in the Texas Syndicate tank and the two men bunked together in cell number five.69 Hector already knew Garcia well, due to having been incarcerated with him previously.70 Garcia was in the tank when Hector arrived.71 Hector had never seen Garcia use heroin.72
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