Montgomery v. Sec'y

• Decision Date: 04 August 2014
• Docket Number: Case No. 3:11-cv-814-J-34JBT
• Parties: BERNEST S. MONTGOMERY, Petitioner, v. SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS AND THE ATTORNEY GENERAL OF THE STATE OF FLORIDA, Respondents.
• Court: U.S. District Court — Middle District of Florida

BERNEST S. MONTGOMERY, Petitioner, v. SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS ANDTHE ATTORNEY GENERAL OF THE STATE OF FLORIDA, Respondents.

Case No. 3:11-cv-814-J-34JBT

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA JACKSONVILLE DIVISION

August 4, 2014

ORDER

I. Status

Petitioner Bernest S. Montgomery, an inmate of the Florida penal system, initiated this action by filing a pro se Petition for Writ of Habeas Corpus (Petition) (Doc. 1) under 28 U.S.C. § 2254 on August 15, 2011. In this action, Montgomery challenges a 2007 state court (Duval County, Florida) judgment of conviction for first degree murder, armed robbery and first degree arson. Respondents submitted a memorandum in opposition to the Petition on October 17, 2012. See Respondents' Answer in Response to Order to Show Cause (Response) (Doc. 16) with exhibits (Resp. Ex.). On December 9, 2011, the Court entered an Order to Show Cause and Notice to Petitioner (Doc. 7), admonishing Montgomery regarding his obligations and giving Montgomery a time frame in which to submita reply. Montgomery submitted a reply brief on February 11, 2013. See Reply/Traverse to State's Answer (Doc. 20). This case is ripe for review.

II. Procedural History

On October 6, 2005, the State of Florida charged Montgomery with first degree murder (count one), armed robbery (count two), and first degree arson (count three). Resp. Ex. C at 13-15, Indictment. Montgomery proceeded to trial in July 2007, the conclusion of which a jury found him guilty of first degree murder, armed robbery and first degree arson. Resp. Ex. D, Transcript of the Jury Trial (Tr.) at 795-96; Resp. Ex. C at 112-17, Verdicts. On August 16, 2007, the court sentenced Montgomery to a term of life imprisonment for count one, a term of life imprisonment for count two, to run concurrently with count one, and a term of thirty years imprisonment (with a mandatory minimum of twenty-five years of imprisonment) for count three, to run consecutively to count one. Resp. Ex. C at 153-60, Judgment.

With the benefit of counsel, Montgomery appealed, arguing that the trial court erred by: denying Montgomery's motions for judgment of acquittal on the charge of premeditation (ground one); failing to instruct the jury on the defense of afterthought with respect to robbery as a separate charge and as an underlying felony for felony murder (ground two); and erroneously instructing the jury on burglary as an underlying felony to the charge of first degreemurder (ground three). Resp. Ex. H. The State filed an Answer Brief. See Resp. Ex. I. On March 9, 2009, the appellate court affirmed Montgomery's conviction and sentence per curiam without issuing a written opinion, see Montgomery v. State, 4 So.3d 1226 (Fla. 1st DCA 2009); Resp. Ex. J, and the mandate issued on March 25, 2009,¹ see Resp. Ex. K. Montgomery did not seek review in the United States Supreme Court.

On August 14, 2009, Montgomery filed a pro se motion for post conviction relief pursuant to Florida Rule of Criminal Procedure 3.850 (Rule 3.850 motion). Resp. Ex. M at 1-23. In his request for post conviction relief, Montgomery asserted that defense counsel was ineffective because he failed to: properly impeach the testimony of Shavonya Williams, a State witness (ground one); object to the prosecution presenting evidence not introduced into evidence, misrepresenting the defense's position, and placing the jury in a position of an expert witness (ground two); prepare a proper defense to support Montgomery's theory of accidental shooting when the victim tried to take back the gun while Montgomery was trying to un-cock it (ground three); object to the prosecution misrepresenting testimony in evidence (relating to the time between when Ms. Williams heard a yell and the gunshot) during closing arguments (ground four); object to the prosecutionmisrepresenting statements in evidence during closing arguments (ground five); object to the prosecution misrepresenting the testimony of the medical examiner and confusing the jury (ground six); object to the prosecutor's statement that unfairly bolstered law enforcement (ground seven); object to: (a) improper jury instructions for first degree arson for not defining a required element, specifically the word dwelling, and (b) the finding determination on the verdict sheet (ground eight); investigate Ms. Sharon for impeachment purposes (ground nine); and object to the State presenting inconsistent positions during closing arguments (ground ten). As ground eleven, he asserted that counsel's cumulative errors and omissions constitute ineffective assistance. The State responded. Id. at 32-63.

On June 15, 2010, the trial court denied the Rule 3.850 motion "for the reasons set forth in the State's Response." Id. at 64-97. On appeal, Montgomery filed a pro se brief, see Resp. Ex. N, and the State notified the court that it did not intend to file an answer brief, see Resp. Ex. O. On September 24, 2010, the appellate court affirmed the trial court's denial per curiam, see Montgomery v. State, 48 So.3d 57 (Fla. 1st DCA 2010); Resp. Ex. P, and later denied Montgomery's motion for rehearing on November 8, 2010, see Resp. Exs. Q; R. The mandate issued on November 24, 2010. See Resp. Ex. S. On March 2, 2011, Montgomery filed a pro se petition for writ of habeas corpus. He asserted that appellate counsel was ineffective because he failed to exhaust all state remedies "by federalizing the issues raised" and failing to present the issues "in federal constitutional terms." Resp. Ex. U at 3. On March 28, 2011, the appellate court denied the petition per curiam on the merits, see Resp. Ex. V; Montgomery v. State, 61 So.3d 1140 (Fla. 1st DCA 2011), and later denied Montgomery's motion for rehearing on May 19, 2011, see Resp. Exs. W; X.

III. One-Year Limitations Period

The Petition appears to be timely filed within the one-year limitations period. See 28 U.S.C. § 2244(d).

IV. Evidentiary Hearing

"In deciding whether to grant an evidentiary hearing, a federal court must consider whether such a hearing could enable an applicant to prove the petition's factual allegations, which, if true, would entitle the applicant to federal habeas relief." Schriro v. Landrigan, 550 U.S. 465, 474 (2007) (citation omitted). "It follows that if the record refutes the applicant's factual allegations or otherwise precludes habeas relief, a district court is not required to hold an evidentiary hearing." Id. The pertinent facts of this case are fully developed in the record before the Court. Because this Court can "adequately assess [Petitioner's] claim[s] without further factual development,"Turner v. Crosby, 339 F.3d 1247, 1275 (11th Cir. 2003), an evidentiary hearing will not be conducted.

V. Standard of Review

The Court will analyze Montgomery's claims under 28 U.S.C. § 2254(d), as amended by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). Section 2254(d) states:

An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim -

(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or

(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.

Thus, 28 U.S.C. § 2254(d) "bars religation of any claim 'adjudicated on the merits' in state court, subject only to the exceptions in §§ 2254(d)(1) and (d)(2)." Harrington v. Richter, 131 S.Ct. 770, 784 (2011). As the United States Supreme Court stated, "AEDPA erects a formidable barrier to federal habeas relief for prisoners whose claims have been adjudicated in state court." Burt v. Titlow, 134 S.Ct. 10, 16 (2013). This standard of review is described as follows:

As explained by the Supreme Court, the phrase "'clearly established Federal law' . . . refers to the holdings . . . of [the Supreme Court's] decisions as of the time of the relevant state-court decision." Williams v. Taylor, 529 U.S. 362, 412, 120 S.Ct. 1495, 1523, 146 L.Ed.2d 389 (2000). We have held that to be "contrary to" clearly established federal law, the state court must either (1) apply a rule "that contradicts the governing law set forth by Supreme Court case law," or (2) reach a different result from the Supreme Court "when faced with materially indistinguishable facts." Putman v. Head, 268 F.3d 1223, 1241 (11th Cir. 2003).

As regards the "unreasonable application" prong of § 2254(d)(1), we have held as follows:

A state court decision is an unreasonable application of clearly established law if the state court unreasonably extends or fails to extend a clearly established legal principle to a new context. An application of federal law cannot be considered unreasonable merely because it is, in our judgment, incorrect or erroneous; a state court decision must also be unreasonable. Questions of law and mixed questions of law and fact are reviewed de novo, as is the district court's conclusion regarding the reasonableness of the state court's application of federal law.

Jennings v. McDonough, 490 F.3d 1230, 1236 (11th Cir. 2007) (quotation marks and citations omitted). In sum, "a federal habeas court making the 'unreasonable application' inquiry should ask whether the state court's application of clearly established federal law was objectively unreasonable." Williams, 529 U.S. at 409, 120 S.Ct. at 1521. Finally, 28 U.S.C. § 2254(e)(1) commands that for a writ to issue because the state court made an

"unreasonable determination of the facts," the petitioner must rebut "the presumption of correctness [of a state court's factual findings] by clear and convincing evidence."[²] 28 U.S.C. § 2254(e)(1).

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