Ortiz v. Stewart

Citation149 F.3d 923
Decision Date01 July 1998
Docket NumberNo. 96-99024,96-99024
Parties98 Cal. Daily Op. Serv. 5208, 98 Daily Journal D.A.R. 7317 Ignacio Alberto ORTIZ, Petitioner-Appellant, v. Terry STEWART, Respondent-Appellee.
CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)

Page 923

149 F.3d 923
98 Cal. Daily Op. Serv. 5208, 98 Daily Journal
D.A.R. 7317
Ignacio Alberto ORTIZ, Petitioner-Appellant,
Terry STEWART, Respondent-Appellee.
No. 96-99024.
United States Court of Appeals,
Ninth Circuit.
Argued March 9, 1998.
Decided July 1, 1998.

Page 928

Sean Bruner, Bruner & Bowman, Tucson, Arizona, for petitioner-appellant.

Jack Roberts, Assistant Attorney General, Criminal Appeals Section, Phoenix, Arizona, for respondent-appellee.

Appeal from the United States District Court for the District of Arizona William D. Browning, District Judge, Presiding. D.C. No. CV-84-00955-WDB.

Before: D.W. NELSON, BRUNETTI, and HAWKINS, Circuit Judges.

D.W. NELSON, Circuit Judge:

Arizona state prisoner Ignacio Alberto Ortiz appeals the district court's denial of summary judgment on his petition for a writ of habeas corpus under 28 U.S.C. § 2254. We have jurisdiction pursuant to 28 U.S.C. §§ 1291 and 2253, and we affirm.


The relevant underlying facts in this case are not in dispute. Ignacio Alberto Ortiz and his wife, Mary Ortiz, were the godparents of Manuelita and Charles McCormack, Jr.'s youngest child, Charles McCormack III ("Baby Charlie"). The McCormacks also had two daughters, Patricia and Bernice. At the time of the charged crimes, Patricia was nine-years-old, Bernice was eight, and Baby Charlie was three.

Charles and Manuelita McCormack experienced marital difficulties in 1977-78. They eventually separated and were considering filing for a divorce. During those two years, Ortiz helped Manuelita with the children, and there is some suggestion in the record that they had an affair. Manuelita and Charles eventually reconciled, and Charles moved back into the McCormack residence. Ortiz continued to visit Manuelita when Charles was not at home, although Manuelita apparently

Page 929

tried to discourage his visits and phone calls.

On December 21, 1978, the McCormack children went to bed in Patricia's room at about 9:00 p.m., and at around 10:00 p.m., Charles McCormack, Jr. left for work. During the night, Baby Charlie awoke and asked Bernice to bring him a glass of water. When Bernice went to get the water, she saw Ortiz (whom she calls "Nacho") with his hands around her mother's neck. Bernice returned to the bedroom, awoke Patricia, and told her what she had seen.

Shortly thereafter, Ortiz entered Patricia's bedroom and told the children that he was going to call an ambulance for their mother. Ortiz left the room, and the children remained awake. An ambulance never arrived, but Ortiz returned to Patricia's bedroom and told Patricia that her mother wanted to see her. When Patricia entered the living room, Ortiz grabbed her from behind and stabbed her twice in the chest with a knife. Patricia, screaming, ran into her mother's bedroom and collapsed on the bed.

On hearing Patricia's screams, Bernice ran into her mother's bedroom. Ortiz grabbed Bernice from behind and stabbed her in the chest. Bernice ran back to Patricia's bedroom, where Baby Charlie was playing.

Ortiz had brought a can of gasoline with him to the McCormack residence, and he poured the gasoline on the unconscious Manuelita and over the bedroom exits. He also placed a delayed ignition device on a pile of clothes at the foot of Baby Charlie's bed. On his way out of the house, Ortiz told the children not to leave until the fire department arrived. Then he ignited the gasoline and departed.

When Bernice smelled the fire, she helped Patricia and Baby Charlie out of the house. Bernice and Baby Charlie struggled to a neighbor's house. Patricia collapsed on the sidewalk, and was near death when the paramedics found her.

By the time the firefighters arrived, Manuelita's body had been badly charred. The pathologist found stab wounds in her neck and, judging from the pool of blood discovered under her body, deduced that she also had been stabbed in the chest. Her chest was too burned to find any stab wounds, however. Although he found the cause of death to be stabbing, the pathologist testified that Manuelita may have been alive when the fire started.

The next day, Ortiz was arrested and jailed. While awaiting trial, he shared a cell with Jose Alvarez, who was in jail pending trial on numerous robbery charges. Alvarez had a history of drug abuse and had tried to escape from prison in the past. While in the jail hospital for knee surgery, Alvarez contacted the Pima County Attorney's office, and informed prosecutors that Ortiz had offered him $10,000 to kill the three children, their father, their father's girlfriend, and Manuelita's sister (with whom the children were staying). Alvarez apparently was supposed to commit these murders after his escape from the hospital. Alvarez also told prosecutors that Ortiz had confessed in detail to Manuelita's murder.

Alvarez agreed to help prosecutors with further investigation, which led to Ortiz and his wife being indicted for conspiracy to commit first-degree murder. In exchange for a favorable plea agreement, Alvarez testified against Ortiz regarding the murder and conspiracy charges.

In a single two-and-a-half week long trial, Ortiz was tried on both the murder and conspiracy charges. Ortiz raised an alibi defense to the murder-related charges; his defense to the conspiracy charge was that Alvarez had coerced his help in the conspiracy through threats of physical force.

On July 2, 1979, a Pima County jury found Ortiz guilty of one count of first-degree murder, three counts of attempted first-degree murder, two counts of aggravated assault, one count of arson of an occupied structure, one count of first-degree burglary, and one count of conspiracy to commit first-degree murder. Following an aggravation-mitigation hearing, Judge Ben C. Birdsall imposed the death penalty for the first-degree murder conviction, life imprisonment for the conspiracy conviction, and the maximum sentence on each of the other charges.

Page 930

On December 19, 1979, with new counsel, Ortiz filed a motion to vacate the judgment based on newly discovered evidence and ineffective assistance of trial counsel. On April 2, 1980, after an evidentiary hearing, the state trial court denied Ortiz's motion to vacate.

On November 23, 1981, the Arizona Supreme Court affirmed the judgments of guilt and sentences. See State v. Ortiz, 131 Ariz. 195, 639 P.2d 1020 (1981). The United States Supreme Court denied a petition for certiorari. See Ortiz v. Arizona, 456 U.S. 984, 102 S.Ct. 2259, 72 L.Ed.2d 863 (1982). In July 1983, Ortiz brought his first state post-conviction relief petition under Arizona Rule of Criminal Procedure 32, which was denied by the state trial court. The Arizona Supreme Court denied Ortiz's petition for review on October 10, 1984.

On December 7, 1984, Ortiz filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 in federal district court in Arizona. On December 10, the district court stayed Ortiz's execution, which originally had been scheduled for December 19, 1984. On August 23, 1985, upon Ortiz's request, the district court stayed the proceedings to allow Ortiz to return to the state court to raise an unexhausted issue.

On September 11, 1985, Ortiz filed his second petition for post-conviction relief, which was summarily denied by the state trial court. The state court denied Ortiz's petition for rehearing in a minute order issued on February 28, 1986. On June 10, 1986, the Arizona Supreme Court denied review without comment.

On December 5, 1986, Ortiz filed an amended petition for writ of habeas corpus. On March 11, 1988, the district court stayed the matter, citing Ortiz's failure to exhaust state remedies.

On April 22, 1988, Ortiz filed a comprehensive third Rule 32 post-conviction relief petition. The trial court denied relief except as to the allegation that a state informant, Jose Alvarez, had perjured himself. On September 9, 1991, the state trial court conducted an evidentiary hearing on the perjury claim, and ultimately denied relief. The Arizona Supreme Court denied review without comment, and the United States Supreme Court denied certiorari. See Ortiz v. Arizona, 506 U.S. 978, 113 S.Ct. 474, 121 L.Ed.2d 380 (1992).

On April 19, 1993, Ortiz again filed an amended petition, which raised many of the claims from his third Rule 32 petition that had been denied as procedurally barred by the state court. On August 6, 1993, the state filed a motion for summary judgment.

On November 14, 1995, the federal district court granted partial summary judgment for the state on 36 of Ortiz's claims, all on grounds of procedural default. On November 7, 1996, the federal district court entered final judgment addressing the merits of the remaining claims, and denying Ortiz's habeas petition. Ortiz now appeals.


A district court's decision to grant summary judgment in favor of the state respondent in a federal habeas petition is subject to de novo review. See Gretzler v. Stewart, 112 F.3d 992, 998 (9th Cir.1997), cert. denied, --- U.S. ----, 118 S.Ct. 865, 139 L.Ed.2d 763 (1998).


I. Procedural Default

The State contends that review of many of Ortiz's claims is barred because Ortiz procedurally defaulted on one set of claims (95.4, 95.5, 95.6, 95.9, 95.13, 95.14, 96.2, 96.3, 96.4, 96.6, 97.1, 97.2, 98.1, 98.2, 98.3, 100.3, 102, 103, 105, 114.5, 114.6, 114.7, 119, 130 in part, 132, 133, 135, 136, 139, and 140) by presenting them to the state trial court for the first time in his third post-conviction petition, and on another set of claims (107, 111, 112 in part, 127 in part, 137, and 141) by never raising them before any state court.

Rule 32.2 of the Arizona Rules of Criminal Procedure states that a defendant is precluded from relief upon any ground "[t]hat has been waived at trial, on appeal, or in any previous collateral proceeding." Ariz. R.Crim. P. 32.2(a). Where a state court has declined to address a prisoner's...

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