United States v. Montgomery, Criminal Action No. 3:98CR289

• Decision Date: 05 March 2020
• Docket Number: Criminal Action No. 3:98CR289
• Court: U.S. District Court — Eastern District of Virginia
• Parties: UNITED STATES OF AMERICA v. KENNETH M. MONTGOMERY, JR.

UNITED STATES OF AMERICA v. KENNETH M. MONTGOMERY, JR.

Criminal Action No. 3:98CR289

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA Richmond Division

March 5, 2020

MEMORANDUM OPINION

In the years following his conviction, Kenneth M. Montgomery filed numerous, unsuccessful § 2255 motions. By Memorandum Opinion and Order entered November 14, 2016, the Court denied a § 2255 motion filed by Montgomery in 2013. (ECF Nos. 149, 150.) In a separate Memorandum Opinion and Order entered on November 14, 2016, the Court denied § 2255 Motion filed by Montgomery on July 1, 2016. (ECF No. 147, 148.)

While the above-described § 2255 motions were pending, on August 3, 2016, the United States Court of Appeals for the Fourth Circuit granted Montgomery permission to file another, successive 28 U.S.C. § 2255 motion, this time in light of the Supreme Court's decision in Johnson v. United States, 135 S. Ct. 2551 (2015). (ECF No. 146.) Attached to the Fourth's Circuit Order was a copy of Montgomery's proposed successive § 2255 Motion. ("Johnson-based § 2255 Motion," ECF No. 146-2.) In the Johnson-based § 2255 Motion, Montgomery vaguely asserted that, in light of Johnson, his 924(c) conviction in Count Five for use and carry of a firearm, during and in relation to a crime of violence must be vacated. (ECF No. 146-2, at 4.)¹ Montgomery requested, inter alia, that the Court appoint counsel to assist him. (Id. at 13.)

Thereafter, on November 14, 2016, Montgomery filed another, successive, unauthorized 28 U.S.C. § 2255 motion. ("November 14, 2016 § 2255 Motion," ECF No. 151.)² In the November 14, 2016 § 2255 Motion, Montgomery contends that his convictions run afoul of the Double Jeopardy Clause and that he was denied the effective assistance of counsel. (ECF No. 151, at 3-13.) By Memorandum Order entered December 21, 2016, the Court directed the Government to respond Montgomery's Johnson-based § 2255 Motion and his November 14, 2016 § 2255 Motion. (ECF No. 152.) The Government filed its Response. (ECF No. 153.)

It is appropriate to first dispense with Montgomery's November 14, 2016 § 2255 Motion, which can be summarily dismissed for lack of jurisdiction, before addressing the Johnson-based § 2255 Motion that will require further briefing.

I. Montgomery's November 14, 2016 § 2255 Motion

The Antiterrorism and Effective Death Penalty Act of 1996 restricted the jurisdiction of the district courts to hear second or successive applications for federal habeas corpus relief by prisoners attacking the validity of their convictions and sentences by establishing a "gatekeeping mechanism." Felker v. Turpin, 518 U.S. 651, 657 (1996) (internal quotation marks omitted). Specifically, "[b]efore a second or successive application permitted by this section is filed in the district court, the applicant shall move in the appropriate court of appeals for an order authorizing the district court to consider the application." 28 U.S.C. § 2244(b)(3)(A). In this instance the Fourth Circuit granted Montgomery pre-filing authorization and permission to file a successive motion in this Court raising a claim under Johnson v. United States, 135 S. Ct. 2551 (2015), pursuant to 28 U.S.C. § 2255(h)(2).³

Montgomery did not obtain prefiling authorization for his November 14, 2016 § 2255 Motion. Therefore, the Court lacks jurisdiction to entertain the November 14, 2016 § 2255 Motion and it will be dismissed for lack of jurisdiction.

Even if the Court were to construe the November 14, 2016 § 2255 Motion as an attempt to amend the Johnson-based § 2255 Motion, the Court would still dismiss the claims as they fail to satisfy 28 U.S.C. § 2255(h). The Court will deny a certificate of appealability with respect to the November 14, 2016 § 2255 Motion.

II. Montgomery's Johnson-based § 2255 Motion

A. Pertinent Procedural History

Following a jury trial, Montgomery was convicted of: one count of conspiracy to violate R.I.C.O., in violation of 18 U.S.C. § 1962(c) (Count One); murder during a major drug trafficking offense (Count Three); use and carry of a firearm during a crime of violence, in violation of 18 U.S.C. § 924(c) (Count Five); possession with intent to distribute five grams or more of crackcocaine (Count Six); one count of assault with a dangerous weapon in aid of racketeering activity (Count Seven); one count of collection of credit by extortionate means (Count Eight); one count of conspiracy to distribute crack cocaine (Count Thirteen); and, one count of conspiracy to distribute heroin (Count Fourteen). (See ECF Nos. 34, 63.) The Court sentenced Montgomery to life imprisonment to be followed by a consecutive sentence of five years for Count Five. (ECF No. 79, at 3.)

B. Recent Supreme Court Decisions

In Johnson v. United States, 135 S. Ct. 2551 (2015), the Supreme Court held "that imposing an increased sentence under the residual clause of the Armed Career Criminal Act [("ACCA")] violates the Constitution's guarantee of due process," id. at 2563,⁴ because the Residual Clause of the ACCA, 18 U.S.C. § 924(e)(2)(B)(ii), defined "violent felony" in anunconstitutionally vague manner for the reason that the Residual Clause encompassed "conduct that presents a serious potential risk of physical injury to another." Id. at 2557-58 (citation omitted). Subsequently, in Welch v. United States, 136 S. Ct. 1257 (2016), the Supreme Court held that "Johnson announced a substantive rule [of law] that has retroactive effect in cases on collateral review." Id. at 1268.

Title 18 U.S.C. section 924(c)(1)(A) provides for consecutive periods of imprisonment when a defendant uses or carries a firearm in furtherance of a crime of violence. The baseline additional period of imprisonment is five years. 18 U.S.C. § 924(c)(1)(A) If the defendant brandishes the firearm, the additional period of imprisonment increases to at least seven years. Id. § 924(c)(1)(A)(ii). And, if the defendant discharges the firearm, the additional period of imprisonment increases to at least ten years. Id. § 924(c)(1)(A)(iii).

At the time of Montgomery's conviction on Count Five, the United States could demonstrate that an underlying offense constitutes a crime of violence if it established that the offense is a felony and satisfies one of two requirements. Namely, the statute defined a crime of violence as any felony:

(A) [that] has as an element the use, attempted use, or threatened use of physical force against the person or property of another [(the "Force Clause")], or

(B) that by its nature, involves a substantial risk that physical force against the person or property of anothermay be used in the course of committing the offense [(the "Residual Clause")].

Id. § 924(c)(3). The Supreme Court recently invalidated the Residual Clause of § 924(c). United States v. Davis, 139 S. Ct. 2319, 2336 (2019) (holding that "§ 924(c)(3)(B) is unconstitutionally vague"). Thus, in order for Montgomery's § 924(c) conviction in Count Five to pass constitutional muster, it must be predicated on a crime of violence that satisfies the Force Clause of § 924(c).

C. The Predicate Crimes For Count Five Identified In The Second Superseding Indictment And Jury Instructions

Count Five of the Second Superseding Indictment states, in pertinent part:

On or about December 31, 1995, at Richmond, Virginia . . . Defendant MONTGOMERY did knowingly and unlawfully use and carry a firearm during and in relation to a crime of violence, namely each of the offenses described in Paragraphs 1(a), (b) and (c) of Count Four, each of which is a felony prosecutable in a Court of the United States.

(ECF 34, at 14 (emphasis added).) The relevant paragraphs of Count Four charged:

On or about December 31, 1995, in the Eastern District of Virginia, Defendant MONTGOMERY did knowingly and willfully,

(a) conduct and participate, directly and indirectly, in the conduct of the affairs of that enterprise, the activities of which affected interstate commerce, through a pattern of racketeering activity, to wit: the commission of the racketeering acts set forth in Paragraph 8 of Count One of this Indictment as Racketeering Acts One through Seven, as more particularly described in Count One of this Indictment,which is expressly incorporated by reference herein, in violation of Title 18, United States Code, Section 1962(c);

(b) murder and cause the murder of John Henry White, in violation of § 18.2-32 of the CodeofVirginia, for the purpose of maintaining and increasing position in an enterprise engaged in racketeering activity, as more particularly described in Count Two of this Indictment, which is expressly incorporated by reference herein, in violation of Title 18, United States Code, Section 1959 (a) (1);

(c) while engaging in an offense punishable under Title 21, United States Code, Section 841(b)(1)(A), to wit: a conspiracy to possess with intent to distribute and to distribute fifty (50) grams or more of a mixture and substance containing a detectable amount of cocaine base, commonly known as "crack", in violation of Title 21 United States Code Sections 841(a)(1) and 846, as charged in Paragraph 8, Racketeering Act Six of Count One of this Indictment, which is realleged and incorporated herein, did knowingly, intentionally, and unlawfully kill and counsel, command, induce, procure, and cause the intentional killing of John White, and such killing resulted, in violation of Title 21, United States Code, Section 848(1)(1)(A) and Title 18, United States Code § 2.

(Id. at 12-13.)

The jury instructions, however, explicitly broadened the § 924(c) charge and stated Montgomery could be found guilty of Count Five if he used and carried a firearm during in relation to a crime of violence or a drug trafficking offense. (Jury Instruction No. 69, 71.)⁵ Thereafter, the instructions stated that:

THE CRIMES OF VIOLENCE AND DRUG TRAFFICKING OFFENSES ALLEGED WITH RESPECT TO COUNT FIVE ARE AS FOLLOWS:

1. THE DEFENDANT KNOWINGLY AND WILLFULLY PARTICIPATED IN A RACKETEERING INFLUENCED AND

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