     Case: 14-40455    Document: 00512999997     Page: 1   Date Filed: 04/09/2015




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT
                                                                   United States Court of Appeals
                                                                            Fifth Circuit

                                                                          FILED
                                  No. 14-40455                         April 9, 2015
                                                                     Lyle W. Cayce
ROBERT LEE ORTEGA,                                                        Clerk


                                            Petitioner-Appellant

v.

WILLIAM STEPHENS, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL
JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION,

                                            Respondent-Appellee


                 Appeal from the United States District Court
                      for the Southern District of Texas
                            USDC No. 6:07-CV-109


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.
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                                        No. 14-40455

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. 1
       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 (1977);
see also Harris v. Oklahoma, 433 U.S. 682, 682 (1977) (“When, as here,



       1 Even though Ortega did not appeal the Corpus Christi court’s decision on remand to
the Court of Criminal Appeals, this case should not be dismissed for a lack of exhaustion.
The Court of Criminal Appeals already rejected Ortega’s double-jeopardy claim. It would
have been futile to present the claim to that court again. See Fisher v. Texas, 169 F.3d 295,
303 (5th Cir. 1999) (“The futility exception applies when, as here, the highest state court has
recently decided the same legal question adversely to the petitioner.”); Layton v. Carson, 479
F.2d 1275, 1276 (5th Cir. 1973) (“Petitioners for federal habeas corpus need not exhaust state
remedies when it is plain that resort to the state courts would be futile. If the state’s highest
court has recently rendered an adverse decision in an identical case, and if there is no reason
to believe that the state court will change its position, a federal court should not dismiss a
petition for federal habeas corpus for failure to exhaust remedies.”); Laffey v. Ault, No. C04-
1004-MWB, 2005 WL 1692452, at *11 (N.D. Iowa Mar. 28, 2005) (finding a “textbook
situation in which application of the futility doctrine is appropriate” where state supreme
court denied habeas petitioner’s Eighth Amendment claim but remanded for other reasons,
and, after decision on remand, petitioner did not again present the Eighth Amendment claim
to the supreme court in another appeal).


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                                      No. 14-40455

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 (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 (1932). 2 Therefore, Ortega is not entitled to federal


       2 The double-jeopardy analysis in Ortega II decided whether one offense was lesser
included within another based on the elements of the offenses as defined in the statutes. 171
S.W.3d at 899-900. It does not appear that the Court of Criminal Appeals has continued to
adhere to such analysis in subsequent cases. Now, the Court of Criminal Appeals decides
double-jeopardy “lesser-included” questions based on the elements of the offenses as alleged
in the charging instrument. See Bigon v. State, 252 S.W.3d 360, 370 (Tex. Crim. App. 2008)
(“[I]n Texas, when resolving whether two crimes are the same for double-jeopardy purposes,
we focus on the elements alleged in the charging instrument.”); Garfias v. State, 424 S.W.3d
54, 58 (Tex. Crim. App. 2014) (“[C]ourts must focus on the elements alleged in the charging
instrument—not on the offense as defined in the Penal Code.”) (citing Bigon); Ex parte
Denton, 399 S.W.3d 540, 546 (Tex. Crim. App. 2013) (citing Bigon); Weinn v. State, 326
S.W.3d 189, 192 (Tex. Crim. App. 2010) (citing Bigon). Even though the Texas court has not
been consistent on the issue, I nevertheless conclude that its analysis in Ortega II was
reasonable. Other courts, too, have been less than consistent on this point. E.g., compare
United States v. Singleton, 16 F.3d 1419, 1422 (5th Cir. 1994) (“The Blockburger inquiry


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                                        No. 14-40455

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”). 3




focuses on the statutory elements of the offenses, not on their application to the facts of the
specific case before the court.”), with United States v. Ogba, 526 F.3d 214, 234 (5th Cir. 2008)
(“But we may not stop here. Under Blockburger we must look to the proof required for each
necessary element of each offense in the case.”).
       3 After the Court of Criminal Appeals rejected Ortega’s double-jeopardy claim in
Ortega II and remanded the case, the Corpus Christi court held in Ortega III that “resisting
arrest is a lesser-included offense of assault on a public servant.” 207 S.W.3d at 914
(emphasis added). That holding does not give rise to double jeopardy, however, even though
the double jeopardy clause “forbids successive prosecution and cumulative punishment for a
greater and lesser included offense.” Brown, 432 U.S. at 169. The reason is, the term “lesser
included offense” has different meanings in different contexts. Michael H. Hoffheimer, The
Rise and Fall of Lesser Included Offenses, 36 RUTGERS L.J. 351, 356 (2005). One context in
which courts employ the term “lesser included offense” is double jeopardy—that is, the
constitutional limits on multiple prosecutions and cumulative punishments. In this context,
courts generally determine whether one offense is “lesser included” within another based on
the elements of the offenses as set out in the statutes or as alleged in the charging instrument.
See supra, note 2 (citing cases). Courts do not, however, in this context determine whether
one offense is “lesser included” within another based on the evidence presented at trial. See
United States v. Dixon, 509 U.S. 688 (1993) (overruling Grady v. Corbin, 495 U.S. 508 (1990)).
Another context in which courts use the term “lesser included offense” is when determining
what offenses the jury may be instructed to consider that were not named in the indictment
or formal charge. In this context, courts apply a variety of tests to determine whether one
offense is “lesser included” within another, including, in some jurisdictions, examining the
evidence presented at trial. See, e.g., Hall v. State, 225 S.W.3d 524, 525-26 (Tex. Crim. App.
2007) (explaining alternative approaches). The critical point is that whether one offense is
“lesser included” within another for purposes of jury instructions is a separate issue—a
generally state-law issue, at that—from whether the offense is “lesser included” within the
other for purposes of double jeopardy. See United States v. Browner, 937 F.2d 165, 171 (5th
Cir. 1991) (distinguishing between “double jeopardy analysis” and “the analysis of lesser
included offenses for instructional purposes”). Here, the Court of Criminal Appeals
addressed double jeopardy in Ortega II, and the Corpus Christi court addressed jury
instructions in Ortega III. This court’s resolution of Ortega’s double-jeopardy claim must
focus on the “lesser-included” analysis in the former state court decision, not the “lesser-
included” analysis in the latter. Also, see Valles v. Lynaugh, 835 F.2d 126, 127 (5th Cir. 1988)
(“In a non-capital murder case, the failure to give an instruction on a lesser included offense
does not raise a federal constitutional issue.”).


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                                 No. 14-40455

      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
(2003). The motion for a certificate of appealability is DENIED.




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