Montgomery v. Goodwin ( 2021 )

Case: 19-30033 Document: 00515726509 Page: 1 Date Filed: 01/29/2021
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
January 29, 2021
No. 19-30033
Lyle W. Cayce
Clerk
Kennith W. Montgomery,
Petitioner—Appellant,
versus
Jerry Goodwin, Warden, David Wade Correctional Center,
Respondent—Appellee.
Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 2:18-CV-1288
Before Elrod, Haynes, and Higginson, Circuit Judges.
Per Curiam:*
Kennith W. Montgomery, pro se, seeks a Certificate of Appealability
(“COA”) to consider whether the district court erred in dismissing his
petition challenging his convictions under 28 U.S.C. § 2254. Because the
district court lacked jurisdiction to hear Montgomery’s § 2254 petition, we
*
Pursuant to 5th Circuit Rule 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opinion should not be published and is not precedent except under the limited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 Circuit Rule 47.5.4.
Case: 19-30033 Document: 00515726509 Page: 2 Date Filed: 01/29/2021
No. 19-30033
VACATE the district court’s judgment, REMAND with instructions to
dismiss, and DENY Montgomery’s motion for a COA as moot.
I. Background
In Louisiana state court, Montgomery was convicted of two counts of
distributing cocaine and was sentenced to concurrent thirty-year terms of
imprisonment. See State v. Montgomery, 158 So. 3d 87, 89 (La. Ct. App. 2014).
On direct appeal, Montgomery argued that (1) the trial judge should have
recused himself; (2) the trial court erred in denying his motion to suppress
video evidence; (3) the State violated his due process rights because it did not
provide full discovery until the day of trial; (4) the jury selection process was
unconstitutional, id. at 89-95; and (5) his trial counsel was ineffective (the
“IAC claim”). The Louisiana appellate court affirmed his convictions but
did not explicitly consider Montgomery’s IAC claim. Id. at 89–96.
Montgomery then applied to the Louisiana Supreme Court for a writ
of certiorari but did not include his IAC claim in his initial application.
However, Montgomery asserted this claim in a subsequent motion to
supplement his writ application. Nevertheless, the Louisiana Supreme Court
denied certiorari in November 2015. State v. Montgomery, 184 So. 3d 23 (La.
2015) (mem.). 1
In December 2015, Montgomery unsuccessfully sought post-
conviction relief in Louisiana district court. The Louisiana appellate court
denied his appeal, and the Louisiana Supreme Court denied his application
for a writ of certiorari.
In January 2018, Montgomery filed a § 2254 petition in federal court
challenging his convictions on various grounds, including his IAC claim.
Along with his § 2254 petition, Montgomery submitted several exhibits,
1
Montgomery did not petition the United States Supreme Court for a writ of
certiorari.
2
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No. 19-30033
including his motion to supplement his writ application and his brief from his
direct appeal. Nevertheless, on preliminary review of Montgomery’s
petition, the magistrate judge found that Montgomery had never raised his
IAC claim in state court and therefore concluded that this claim was
unexhausted. Montgomery v. Goodwin, No. 18-cv-0067, 2018 WL 736115, at
*3 (W.D. La. Feb. 5, 2018). To avoid adjudicating a “mixed” habeas petition
containing exhausted and unexhausted claims, 2 the magistrate judge gave
Montgomery four options:
1. Request a stay in proceedings, with the knowledge that same
might be denied if he cannot show good cause for his failure to
exhaust or in light of the Louisiana Supreme Court's per
curiam opinion stating that he had fully litigated his post-
conviction claims;
2. Maintain the petition as is, with full knowledge that it will
likely be dismissed . . . unless he can show a reason why the
exhaustion requirement should not be applied to his claim;
3. Voluntarily dismiss the unexhausted claim, with the
knowledge that he may be barred from reurging it in another
federal petition even if he manages to exhaust that claim in
state court; or
4. Voluntarily dismiss the entire petition without prejudice in
order to exhaust the unexhausted claim, but with the
knowledge that his petition might be barred by the limitations
period when he refiles.
Id. at *4.
Montgomery chose the third option: to voluntarily dismiss his IAC
claim. In July 2018, the magistrate judge recommended that Montgomery’s
2
It is well established that “a district court should dismiss an entire federal habeas
application if the petitioner’s state remedies have not been exhausted as to all claims raised
in the federal petition.” Strickland v. Thaler, 701 F.3d 171, 174 (5th Cir. 2012).
3
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remaining claims be dismissed on the merits. Montgomery v. Goodwin, No.
2:18-cv-0067, 2018 WL 9597157, at *1 (W.D. La. July 11, 2018). In response,
Montgomery filed a second motion to amend his petition, seeking to reinstate
his IAC claim and asserting that the magistrate judge had improperly
determined that this claim was unexhausted. However, soon after
Montgomery filed his second motion, the district court adopted the
magistrate judge’s recommendation and dismissed Montgomery’s petition
with prejudice. Montgomery v. Goodwin, No. 18-0067, 2018 WL 9597159, at
*1 (W.D. La. Aug. 27, 2018). In a separate order filed in September, the
district court denied Montgomery’s second motion to amend, asserting that
the magistrate judge correctly instructed Montgomery to dismiss his IAC
claim. 3 Montgomery v. Goodwin, No. 18-0067, 2018 WL 9597161, at *1 (W.D.
La. Sept. 11, 2018).
In October 2018, Montgomery filed a second § 2254 petition, which
included his IAC claim, and a claim that his sentence was excessive. The
magistrate judge concluded that Montgomery’s IAC claim was still
unexhausted, but assumed that his excessive sentence claim was exhausted,
and consequently recommended that Montgomery’s petition be dismissed.
Montgomery v. Goodwin, No. 2:18-cv-1288, 2018 WL 6318546, at *2–3, *2 n.2
(W.D. La. Oct. 4, 2018). Montgomery objected to the magistrate judge’s
recommendation on the basis that he had exhausted his IAC claim in state
court. Despite Montgomery’s objection, the district court adopted the
magistrate judge’s recommendation and dismissed Montgomery’s petition.
Montgomery v. Goodwin, No. 2:18-cv-1288, 2018 WL 6314678, at *1 (W.D. La.
Dec. 3, 2018). Montgomery filed a timely notice of appeal, 4 and then moved
for a COA on the issue of whether his IAC claim was exhausted.
3
We denied Montgomery’s subsequent COA application on his January 2018
§ 2254 petition in June 2019.
4
Montgomery’s notice of appeal was filed on January 10, 2019, making it appear
untimely on its face. Fed. R. App. P. 26(a). However, Montgomery claimed that he had
4
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II. Discussion
Before going any further, we must ascertain the scope of our
jurisdiction over this case. See United States v. Ruiz, 536 U.S. 622, 628 (2002)
(“[A] federal court always has jurisdiction to determine its own
jurisdiction.”). Under 28 U.S.C. § 2244(b)(3)(A), a habeas petitioner must
obtain authorization from the court of appeals before a district court may
consider a “second or successive application.” Accordingly, a district court
lacks jurisdiction to consider an unauthorized successive habeas application.
Crone v. Cockrell, 324 F.3d 833, 836 (5th Cir. 2003). If a district court
improperly entertains a successive petition, our jurisdiction is limited to the
“purpose of correcting the error of the lower court in entertaining the
[petition].” Id. (quotation omitted). Thus, the key question is whether
Montgomery’s § 2254 petition is properly considered “successive” under
§ 2244(b)(3)(A).
A petition “is successive when it either presents a challenge to the
petitioner’s conviction or sentence that could have been presented in an
earlier petition or can be said to be an ‘abuse of the writ.’” Propes v.
Quarterman, 573 F.3d 225, 229 (5th Cir. 2009) (citation omitted). Here,
Montgomery argues that the district court erred in dismissing his October
2018 § 2254 petition on the grounds that his IAC claim was unexhausted. He
maintains that he exhausted his IAC claim in state court by raising it in his
brief to the Louisiana appellate court and in his motion to supplement his
application for a writ of certiorari before the Louisiana Supreme Court. That
is, Montgomery claims he exhausted his IAC claim prior to filing his first
filed an earlier notice of appeal on December 10, 2018 but had never received
acknowledgment of its receipt. Accordingly, we remanded to the district court for the
limited purpose of determining whether Montgomery had filed a timely notice of appeal
under the mailbox rule or whether he should be granted an extension of time to file a notice
of appeal under Federal Rule of Appellate Procedure 4(a)(5). On remand, the district court
determined that Montgomery had filed a timely notice of appeal under the mailbox rule, or,
in the alternative, that he should be granted an extension under Rule 4(a)(5).
5
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§ 2254 petition in January 2018. But if his IAC claim was exhausted prior to
the filing of his January 2018 § 2254 petition, then that claim could have been
properly presented in that petition. Consequently, Montgomery’s October
2018 petition was successive.
It is irrelevant that the magistrate judge determined that
Montgomery’s IAC claim was unexhausted during her preliminary review of
his January 2018 § 2254 petition, because Montgomery, rather than the
district court, dismissed the IAC claim. Although the magistrate judge’s
analysis may have been incorrect, 5 she warned Montgomery that he might
later be barred from raising his IAC claim if he voluntarily dismissed it.
Montgomery v. Goodwin, 2018 WL 736115, at *4. Montgomery could have
refused to dismiss the claim and then challenged the dismissal of his petition
on appeal. Instead, he voluntarily dismissed this claim, with full knowledge
of the consequences. 6
As Montgomery’s October 2018 § 2254 petition was successive and
he did not obtain our authorization prior to filing, the district court lacked
jurisdiction to consider the petition. Accordingly, we VACATE the
5
Because it is Montgomery’s responsibility to demonstrate that his petition was
not successive, for present purposes we assume without deciding that he is correct that he
exhausted his IAC claim in state court prior to filing his January 2018 petition. See Steel
Co. v. Citizens for a Better Env’t, 523 U.S. 83, 104 (1998) (explaining that “the party
invoking federal jurisdiction bears the burden of establishing its existence”).
6
Our decision in Strickland v. Thaler, 701 F.3d 171 (5th Cir. 2012), does not
contradict our conclusion that Montgomery’s § 2254 petition was successive. In that case,
we held that “where in an initial federal habeas petition the court decided an exhausted
claim on the merits and dismissed the unexhausted claims without prejudice, stating the
petitioner may return to federal court after exhausting the unexhausted claims, and the
petitioner seeks to refile his petition after exhausting the unexhausted claims,” the new
petition “is not a ‘second or successive’ petition within the meaning of 28 U.S.C. § 2244.”
Id. at 174, 176–77. Thus, Strickland is distinguishable in two respects: (1) Montgomery’s
IAC claim was exhausted at the time of his January 2018 § 2254 petition and (2) the district
court gave Montgomery no assurance that he would be able to return to federal court to
press the voluntarily dismissed claim. Hence, our holding in Strickland does not affect our
analysis of this case.
6
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judgment of the district court, REMAND with instructions to dismiss for
lack of jurisdiction, and DENY Montgomery’s motion for a COA as moot.
7