Appeal from the United States District Court for the Southern District of Texas. USDC No. 6:07-CV-109.
For Robert Lee Ortega, Petitioner - Appellant, Pro se, Beaumont, TX.
William Stephens, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent - Appellee: Nathan Tadema, Office of the Attorney General, Postconviction Litigation Division, Austin, TX.
JAMES L. DENNIS, Circuit Judge, in chambers:
Robert Lee Ortega, a Texas prisoner, seeks a certificate of appealability to appeal the district court's denial of his Federal Rule of Civil Procedure 60(b) motion, which sought relief from the judgment dismissing his habeas corpus petition under 28 U.S.C. § 2254. The petition challenged his Texas conviction for assault of a public servant as a violation of the Constitution's double jeopardy clause. For the reasons that follow, I will deny the motion.
In November 2000, Ortega had an altercation with a police officer of Woodsboro, Texas. The State of Texas first charged Ortega with, and he pleaded guilty to, resisting arrest. Then, the State charged him with, and a jury convicted him of, assault of a public servant based on the same altercation. Ortega appealed the assault conviction to the Texas Court of Appeals in Corpus Christi, which vacated the conviction, holding that it violated the double jeopardy clause. Ortega v. State, 131 S.W.3d 698 (Tex.App.--Corpus Christi 2004) (" Ortega I" ). On grant of the State's petition for discretionary review, the Texas Court of Criminal Appeals reversed, holding that the assault conviction did not constitute double jeopardy, and remanded for consideration of other issues. Ortega v. State, 171 S.W.3d 895 (Tex.Crim.App. 2005) (en banc) (" Ortega II" ). On remand, the Corpus Christi court affirmed the conviction. Ortega v. State, 207 S.W.3d 911 (Tex.App.--Corpus Christi 2006) (" Ortega III" ). Now, Ortega asserts his double-jeopardy claim in the federal courts.
The double jeopardy clause provides that no person shall " be subject for the same offence to be twice put in jeopardy of life or limb." U.S. Const. amend. V. It is well established that, " [w]hatever the sequence may be," the double jeopardy clause " forbids successive prosecution and cumulative punishment for a greater and lesser included offense." Brown v. Ohio, 432 U.S. 161, 169, 97 S.Ct. 2221, 53 L.Ed.2d 187 (1977); see also Harris v. Oklahoma, 433 U.S. 682, 682, 97 S.Ct. 2912, 53 L.Ed.2d 1054 (1977) (" When, as here, conviction of a greater crime, murder, cannot be had without conviction of the lesser crime, robbery with firearms, the Double Jeopardy Clause bars prosecution for the lesser crime, after conviction of the greater one." ); In re Nielsen, 131 U.S. 176, 188, 9 S.Ct. 672, 33 L.Ed. 118 (1889) (" [W]here, as in this case, a person has been tried and convicted for a crime which has various incidents included in it, he cannot be a second time tried for one of those incidents without being twice put in jeopardy for the same offense." ). That is because, when one offense is encompassed within another, the lesser included offense is the " same" for purposes of double jeopardy as the greater inclusive offense (or, more specifically, a component of it). Brown, 432 U.S. at 168.
The issue in this case is whether resisting arrest is a lesser included offense of assault of a public servant. In Ortega II, the Court of Criminal Appeals examined the elements of resisting arrest and the elements of assault, concluded that the former is not encompassed within the latter, and denied Ortega's double-jeopardy claim for that reason. 171 S.W.3d at 899-900. The court's analysis reflects a reasonable interpretation of what the United States Supreme Court's double-jeopardy jurisprudence requires. See Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932). Therefore,
Ortega is not entitled to federal habeas relief on his double-jeopardy claim. See 28 U.S.C. § 2254(d)(1) (a state prisoner is not entitled to federal habeas relief unless the state court's federal constitutional analysis was " contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States" ).
Reasonable jurists could not debate the district court's denial of Ortega's double-jeopardy claim, and the issues in this case are not adequate to deserve encouragement to proceed further. See Miller-El v. Cockrell, 537 U.S. 322, 327, 123 S.Ct. 1029, 154 L.Ed.2d ...