226 F.3d 399 (5th Cir. 2000), 99-50190, Montoya v Johnson

Docket Nº:99-50190
Citation:226 F.3d 399
Party Name:Jesse Montoya, Petitioner-Appellee, v. Gary L. Johnson, Director, Texas Department of Criminal Justice, Institutional Division, Respondent-Appellant.
Case Date:September 14, 2000
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

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226 F.3d 399 (5th Cir. 2000)

Jesse Montoya, Petitioner-Appellee,


Gary L. Johnson, Director, Texas Department of Criminal Justice, Institutional Division, Respondent-Appellant.

No. 99-50190


September 14, 2000

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Appeal from the United States District Court for the Western District of Texas

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Before JOLLY, SMITH, and BARKSDALE, Circuit Judges.


JERRY E. SMITH, Circuit Judge:

When he pleaded guilty, for separate criminal acts, to federal charges of carjacking and state charges of aggravated robbery, Jesse Montoya no doubt would have preferred that his federal and state terms of imprisonment run concurrently. The state court did sentence him concurrently but, importantly, did so before the federal court had issued its sentence. There being no previous federal sentence with which Montoya's state sentence could run, it was left to the federal court to decide whether to allow his federal sentence to run concurrently with his previously-issued state sentence. Montoya's hopes were thus largely dashed when the federal court subsequently sentenced him to a consecutive term of incarceration, for that meant that his state sentence would run concurrently only if he were prematurely discharged from state prison and subsequently detained for federal incarceration.

In retrospect, Montoya would have been better served had he been sentenced in federal court before he was sentenced by the state court. He claims constitutional error, seeking a federal writ of habeas corpus from his guilty plea on the state charges on the ground that that plea was premised on the state's promise of concurrent sentencing, failure of which rendered his plea unknowingly and involuntarily submitted. Alternatively, he complains of unconstitutionally ineffective counsel.

The state courts have rejected these arguments, concluding that Montoya was made adequately aware of the terms of his state plea agreement in open court, thereby rendering his plea voluntary and curing any ineffectiveness of counsel. Therefore, whatever we might have thought of Montoya's claims if we were ruling on them in the first instance, principles of federalism, comity, and finality of judgments, impressed upon us by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), counsel us to deny relief. Consequently, we REVERSE.


Before imposition of the state sentence, Montoya had pleaded guilty to carjacking charges in federal court. He had not been sentenced on the federal charge when he pleaded guilty to, and faced sentencing for, aggravated robbery in Texas state court.


Montoya's plea agreement with the state provided that his twelve-year state sentence would be imposed concurrently with his pending federal sentence.1 That is, the state agreed to allow him to use any time spent serving a federal sentence as credit against his state sentence. Accordingly, Texas law authorizes a state court to sentence a defendant to a term of imprisonment to be served concurrently with another sentence--but only if the other sentence has already been imposed.2 When Montoya was sentenced on the state charge, however, there was no pending federal sentence with which the state sentence could run concurrently pursuant to the state plea agreement.

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Clifford Hardwick, Montoya's attorney in the state prosecution, advised him to plead guilty in state court, even though federal sentencing had not yet taken place, rather than to seek a continuance and delay pleading and sentencing in state court until after federal sentencing, because the policy of the state judge was either to accept a plea or proceed immediately to trial. An earlier opportunity for federal sentencing had been delayed because Montoya's federal counsel was out of town.

At the plea hearing in state court, the following exchange took place:

THE COURT: I just want to make sure that there wasn't something else that they offered you and changed it. Okay. And . . . does that include all aspects of the recommendation, Mr. Hardwick?

MR. HARDWICK: Well, also, Your Honor, the State had agreed that that sentence . . . run concurrent with his federal offense, which is to be sentenced--he is to be sentenced on August 31st for the federal offense and he already pled guilty to that.

THE COURT: All right. I am going to write that in on item three here. Concurrent with the federal sentence. Now, you understand, Mr. Montoya, I can't bind the federal judge to do anything. But what I am saying is that our time--you will be given credit on this sentence with the time you serve in federal court. Now, what they do, I am not sure. I don't know about how they--what their rules are.

THE DEFENDANT: I understand.

THE COURT: But our rule will be that you will get credit on this one. . . . I will announce for the record that I will not exceed the agreed recommendation as to punishment. . . . [T]welve years to be served concurrent with the federal sentence.

Montoya had previously demonstrated at least some ability to comprehend and exercise his rights as a criminal defendant. When asked by the state trial court whether he had read the form he had previously signed waiving his appeal rights, he responded that he had not, thereby allowing the court to respond and to ensure protection of his rights to due process by allowing him the opportunity to read that form.


Subsequently, the federal court sentenced Montoya to a seventy-eight-month federal sentence, to be served consecutively to his state sentence.3 He thus was placed under a federal detainer, such that he would not begin serving his federal sentence until release from state custody, so there was no federal term of incarceration with which to run his state sentence concurrently, because he would not begin serving his federal time until his release from state custody. His right to a concurrent state sentence would not be triggered, therefore, until after his release from state custody--as in the case of parole or habeas relief from state imprisonment (which the federal court would later grant).


Montoya first filed a habeas petition in state court, challenging his state sentence. He argued that Tex. Code Crim. P. art. 26:13 required the trial court to admonish

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him that the terms of the plea agreement regarding concurrent sentencing was not binding on the federal court4 and that, because of the lack of warning by the trial court or his counsel, his guilty plea was not made knowingly and voluntarily.5 He additionally demanded withdrawal of his plea on the ground that specific performance of the plea agreement was impossible, and the promises made to him therefore were illusory. Finally, he alleged ineffective assistance of counsel.

The Texas Court of Criminal Appeals rejected the petition without written order, thereby accepting the trial court's finding that, if nothing else, the exchange in open court between the petitioner and the judge (excerpted above) adequately informed Montoya of the terms and limitations of his plea agreement--specifically, that court's lack of power to bind the federal court to concurrent sentencing. The state habeas court also concluded there was no harm from any ineffective assistance of counsel and that the promises made to Montoya were not illusory: His federal sentence was to run consecutively with his state sentence, while his state sentence could run concurrently with a pending federal sentence.

Therefore, the state courts reasoned, Montoya's entitlement to state imprisonment credit for any federal time served would be realized only if he were paroled from state custody, an event that would trigger his federal imprisonment. Only under those particular circumstances would his time in federal imprisonment be credited by the state. But that benefit was enough for the state court to support the plea agreement against a habeas challenge--even though other evidence established that Montoya sought fully concurrent sentences and that Hardwick had told him that the agreement guaranteed fully concurrent sentences, despite counsel's awareness that Texas law did not provide as much because the federal sentence had not yet been imposed.


In early 1997--after the April 24, 1996, effective date of AEDPA--Montoya filed the instant petition for federal habeas relief before the same judge who had sentenced him on the federal carjacking charge. The federal court granted the habeas petition and ordered Montoya's immediate release from Texas custody to the U.S. Marshal so that he could begin service on his federal charge. In doing so, the court noted that, at the time it sentenced Montoya on the federal charge, the judge had held office for only a short time and that were he able to do the sentencing over again, he would do everything in his power to ensure a concurrent federal sentence.

The court then gave the state 120 days to allow Montoya to withdraw his plea and choose either to enter a new plea or proceed to trial. The court stayed its order pending this appeal.


Before enactment of AEDPA, "a federal court entertaining a state prisoner's application for habeas relief . . . exercise[d] its independent judgment when deciding both questions of constitutional law and mixed constitutional questions (i.e., application of constitutional law to fact). In other words, a federal habeas court owed no deference

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to a state court's resolution of such questions of law or mixed questions."6

Embodying the principles of federalism, comity, and finality of judgments,7 AEDPA substantially restricts the scope of federal review of state criminal court proceedings.8 As before, a habeas petitioner has the burden under AEDPA to prove that he is entitled to relief.9 In addition, however, AEDPA directs that

[a]n application for a writ of habeas corpus on behalf of a person in custody pursuant to...

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