United States v. Christopher Montgomery , 583 F. App'x 397 ( 2014 )

Case: 14-60047 Document: 00512820491 Page: 1 Date Filed: 10/30/2014
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 14-60047
Summary Calendar
United States Court of Appeals
Fifth Circuit
FILED
October 30, 2014
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff−Appellee,
versus
CHRISTOPHER MONTGOMERY, Also Known as Knowledge,
Defendant−Appellant.
Appeal from the United States District Court
for the Southern District of Mississippi
No. 1:96-CR-37-5
Before SMITH, WIENER, and ELROD, Circuit Judges.
PER CURIAM: *
Christopher Montgomery, federal prisoner # 25140-018, pleaded guilty,
* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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No. 14-60047
in 2003, of conspiracy to possess with intent to distribute cocaine. He filed a
notice of appeal from an order denying his motion for production of documents
that he believed would support his then-pending motion for new trial. Because
Montgomery has not briefed any challenge to that order, he has abandoned any
appeal from it. See United States v. Scroggins, 599 F.3d 433, 446 (5th Cir.
2010).
Montgomery’s brief instead addresses the denial of his motion for new
trial in which he asserted that he has newly discovered evidence that trial
counsel’s assistance was rendered ineffective by conflicts of interest stemming
from her disbarment. We liberally construe Montgomery’s notice of appeal
from the denial of his motion to produce certain documents to include a notice
of appeal from the denial of the motion for new trial. See Turnbull v. United
States, 929 F.2d 173, 177 (5th Cir. 1991); United States v. Rochester, 898 F.2d
971, 976 n.1 (5th Cir. 1990).
Montgomery, however, has not shown that the district court abused its
discretion in denying a new trial, given that he was convicted pursuant to a
guilty plea rather than by a verdict following a trial before a judge or jury. See
United States v. Lewis, 921 F.2d 563, 564 (5th Cir. 1991); Williams v. United
States, 290 F.2d 217, 217 (5th Cir. 1961) (per curiam). The district court also
properly refrained from construing the motion for new trial as a 28 U.S.C.
§ 2255 motion because it would have been successive and unauthorized. See
United States v. Key, 205 F.3d 773, 774 (5th Cir. 2000); United States v. Hester,
202 F.3d 266, 1999 U.S. App. LEXIS 32360, at *2 (5th Cir. Nov. 18, 1999) (per
curiam) (unpublished).
The government moves to dismiss the appeal, or, alternatively, for sum-
mary affirmance, contending that Montgomery has abandoned his appeal from
the denial of the motion to produce documents. The government urges further
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No. 14-60047
that Montgomery’s ineffective-assistance claims are unreviewable because
they are outside the scope of the appeal and Montgomery has failed to obtain
a certificate of appealability from the denial of a new trial. Because summary
affirmance is not appropriate, the motion is DENIED. See United States v.
Holy Land Found. for Relief & Dev., 445 F.3d 771, 781 (5th Cir. 2006). But
because Montgomery is not entitled to relief, we dispense with further briefing.
AFFIRMED.
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