Montgomery #301029 v. Morris et al

Filing 25

ORDER ADOPTING REPORT AND RECOMMENDATION- The 24 R&R's recommended disposition is accepted.The 6 amended petition is denied and dismissed with prejudice. A Certificate of Appealability and leave to proceed in forma pauperis on appeal are denied because the dismissal of the Petition is justified by a plain procedural bar and jurists of reason would not find the procedural ruling debatable. The Clerk shall enter judgment accordingly and terminate this action. Signed by Judge Dominic W Lanza on 3/5/19. (MSA)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Curtis Montgomery,
Petitioner,

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ORDER

v.

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No. CV-17-03579-PHX-DWL

S. Morris, et al.,

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Respondents.

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On November 27, 2017, Petitioner filed an amended petition for writ of habeas

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corpus under 28 U.S.C. § 2254 (“the Petition”). (Doc. 6.) On November 30, 2018,

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Magistrate Judge Boyle issued a Report and Recommendation (“R&R”) concluding the

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Petition should be denied and dismissed with prejudice. (Doc. 23.) Afterward, Petitioner

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filed written objections to the R&R. (Doc. 24). As explained below, the Court will deny

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Petitioner’s objections.

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I.

Background

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Petitioner was sentenced to life in prison after being convicted at trial of sexual

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abuse, child molestation, and sexual conduct with a minor. (Doc. 23 at 2.) The evidence

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at trial included (1) a confrontation call in which Petitioner made incriminating statements

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and (2) Petitioner’s “full-blown confession” to the police. (Id.)

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In his direct appeal, Petitioner raised only one issue: whether the trial court abused

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its discretion by admitting expert testimony concerning general characteristics of child

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sexual abuse victims. (Id. at 12; see also State v. Montgomery, 2016 WL 3660255 (Ariz.

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Ct. App. 2016)). On July 5, 2016, the Arizona Court of Appeals affirmed Petitioner’s

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conviction. (Doc. 23 at 2.)

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On September 8, 2016, Petitioner filed a notice of post-conviction relief. (Id.) On

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November 28, 2016, Petitioner’s counsel filed a notice stating there were no colorable

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claims. (Id.) On February 27, 2017, Petitioner—acting pro se—filed a petition raising

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three claims: (1) prosecutorial misconduct/perjury, (2) ineffective assistance, and (3) juror

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bias. (Id.) On June 2, 2017, the trial court denied the petition. (Id.) Petitioner didn’t seek

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review in the Arizona Court of Appeals. (Id. at 3.)

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On October 5, 2017, Petitioner filed a habeas petition, which he later amended. (Id.)

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The Petition raises four claims: (1) ineffective assistance, (2) erroneous evidentiary rulings

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by the trial court, (3) prosecutorial misconduct, and (4) actual innocence. (Id.)

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The R&R was issued in November 2018. (Doc. 23.) As for the first claim in the

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Petition (ineffective assistance), the R&R begins by noting that this claim is procedurally

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defaulted because Petitioner didn’t appeal the denial of his PCR petition to the Arizona

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Court of Appeals. (Id. at 5-7.) Next, the R&R addresses whether, under Martinez v. Ryan,

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566 U.S. 1 (2012), Petitioner can establish cause and prejudice to excuse the default (based

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on his claim that PCR counsel was ineffective). (Id. at 7-11 & n.4.) Specifically:

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(1)

As for Petitioner’s claim that trial counsel was ineffective by failing to

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present a CAT scan showing that Petitioner had cognitive disabilities, the R&R concludes

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this claim is insubstantial because (1) the proffered evidence only shows “some minimal

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irregularity” in Petitioner’s brain, not Alzheimer’s or dementia, (2) Petitioner “fails to

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explain how dementia would have caused him to commit [sex] offenses on a child,” and

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(3) Petitioner’s filings in this case are “inconsistent with his claim of diminished capacity.”

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(Id. at 7-8.)

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(2)

As for Petitioner’s claim that trial counsel was ineffective by failing to

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impeach the victim with the first hospital report, which didn’t show the victim had bruises,

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the R&R concludes this claim is insubstantial because (1) “Petitioner did not attach the

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reports to the Petition, so Petitioner fails to substantiate his claim,” (2) Petitioner was

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accused of sexual conduct, not physical assault, so the absence of bruises wouldn’t negate

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the charge, and (3) Petitioner can’t establish prejudice as to this issue “in light of his pretrial

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admissions that he committed numerous sexual acts on the victim.” (Id. at 8.)

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(3)

As for Petitioner’s claim that trial counsel was ineffective by failing to

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investigate whether a particular witness had a motive to coach the victim to lie (and to

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impeach the witness on that basis), the R&R concludes this claim is insubstantial because

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(1) Petitioner offered only a cursory allegation of the witness’s motivation and (2) the

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witness’s testimony was, in any event, “brief and far less significant that the victim’s

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testimony and Petitioner’s numerous incriminating statements.” (Id. at 8-9.)

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(4)

As for Petitioner’s claim that trial counsel was ineffective by failing to object

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to the prosecutor’s closing argument, the R&R concludes this claim is insubstantial because

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counsel made a tactical choice to address the prosecutor’s statement on the merits, rather

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than object to it. (Id. at 9-10.)

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(5)

As for Petitioner’s claim that trial counsel was ineffective by failing to ask

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certain questions during the redirect exam of the defense witness on false confessions, the

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R&R concludes this claim is insubstantial because (1) it is speculative whether the expert

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would have provided favorable answers to the line of questions proposed by Petitioner and

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(2) trial counsel’s decision to avoid potentially damaging testimony was a tactical decision.

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(Id.)

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(6)

As for Petitioner’s claim that trial counsel was ineffective by failing to

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“timely” seek the removal of a juror who was crying during opening statements, the R&R

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concludes this claim is insubstantial because counsel did seek the removal of the juror

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(albeit unsuccessfully) once opening statements were complete and “[n]othing in the record

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suggests the outcome would have been different if counsel had raised the issue in the

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middle of opening statements rather than waiting until opening statements concluded.” (Id.

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at 11.)

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For all of these reasons, the R&R concludes that “Petitioner fails to establish a
substantial claim of ineffective assistance of counsel.

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Consequently, he fails under

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Martinez to provide cause for the procedural default of the claim.” (Id. at 11.)

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Next, as for the second and third claims in the Petition (trial errors and prosecutorial

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misconduct), the R&R concludes these claims are “unexhausted and procedurally defaulted

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without excuse” because Petitioner didn’t raise them in his direct appeal to the Arizona

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Court of Appeals and didn’t appeal the denial of his PCR petition to the Arizona Court of

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Appeals. (Id. at 11-12.) Finally, as for the fourth claim in the Petition (actual innocence),

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the R&R concludes this claim fails because Petitioner didn’t present any new evidence and

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simply seeks to reargue the evidence based on information that was available to him at the

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time of trial. (Id. at 12-14.)

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II.

Legal Standard

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A party may file specific, written objections to an R&R within fourteen days of

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being served with a copy of it. Rules Governing Section 2254 Cases 8(b) (“Section 2254

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Rules”); see also Fed. R. Civ. P. 72(b)(2); 28 U.S.C. § 636(b)(1)(C). The Court must

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undertake a de novo review of those portions of the R&R to which specific objections are

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made. See, e.g., Thomas v. Arn, 474 U.S. 140, 149-50 (1985) (“It does not appear that

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Congress intended to require district court review of a magistrate’s factual or legal

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conclusions, under a de novo or any other standard, when neither party objects to those

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findings.”); United States v. Reyna-Tapia, 328 F.3d 1114, 1221 (9th Cir. 2003) (“[T]he

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district judge must review the magistrate judge’s findings and recommendations de novo

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if objection is made, but not otherwise.”). The Court may accept, reject, or modify, in

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whole or in part, the findings or recommendations made by the magistrate judge. Section

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2254 Rules 8(b); see also Fed. R. Civ. P. 72(b)(3); 28 U.S.C. § 636(b)(1)(C).

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III.

The Parties’ Arguments

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In his objections to the R&R, Petitioner focuses primarily on his first ineffective

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assistance theory (trial counsel’s failure to present cognitive-disability evidence). On this

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issue, he argues that (1) he didn’t receive the actual medical records “until after the time of

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state appeals” and “had to have family members to retrieve this information,” (2) the

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medical records show “decreased blood to the brain” and “minimal brain damage,” and (3)

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cognitive-disability evidence would have been useful in challenging “the voluntariness of

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statements” he made during the confrontation call and during his confession to the police.

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(Doc. 24 at 1-3.) Next, with respect to his second ineffective assistance theory (trial

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counsel’s failure to impeach the victim with the first hospital report), Petitioner contends

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the report would have been valuable for impeachment purposes. (Id. at 4.) Finally, with

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respect to his fourth ineffective assistance theory (trial counsel’s failure to object to the

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prosecutor’s closing argument), Petitioner argues the prosecutor’s statements were

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improper and prejudicial. (Id. at 4-5.)

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Respondents did not file a response to the objections.
IV.

Analysis

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The Court agrees with the R&R’s conclusion that Petitioner has failed to present a

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“substantial” claim of ineffective assistance of trial counsel and, thus, has procedurally

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defaulted that claim. See generally Contreras v. Ryan, 2014 WL 6668468, *2 (D. Ariz.

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2014) (citations omitted) (“The Supreme Court and Ninth Circuit have created a special

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rule excusing the default of IAC claims. . . . To take advantage of this rule, a petitioner

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must ‘demonstrate that the underlying ineffective-assistance-of-trial [or appellate]-counsel

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claim is a substantial one, which is to say that the [petitioner] must demonstrate that the

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claim has some merit.’ Thus, in a situation of alleged default, the Court must look to the

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merits of the claim to determine whether the default should be enforced. If an examination

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of the merits shows the claim is ‘substantial,’ the Court cannot enforce the procedural

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default.”).

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Petitioner’s primary theory is that trial counsel should have attempted to challenge

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the voluntariness of his confession (and his incriminating statements during the

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confrontation call) by presenting evidence of his alleged cognitive deficits. This is not a

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substantial IAC claim. The medical records (which Petitioner describes but doesn’t attach)

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suggest he suffers from only “minimal” impairments, and Petitioner’s conduct while

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litigating this case is inconsistent with the existence of a significant cognitive impairment.

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It is pure speculation (and certainly not reasonably probable) that trial counsel could have

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somehow secured the suppression of Petitioner’s incriminating statements (or blunted the

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impact of those statements at trial) by obtaining more medical evidence or presenting

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different evidence at trial.

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“emotionally [and] phsychologicaly [sic] overborn by circumstances,” he admits he

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thought he “was having a private call with [his] daughter.” (Doc. 24 at 3.) These

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circumstances were not coercive and trial counsel wouldn’t have been able to suppress the

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confrontation call based upon them. See, e.g., Reel v. Ryan, 2013 WL 2284988, *18 (D.

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Ariz. 2013) (rejecting habeas claim, where petitioner argued his trial counsel “should have

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sought to suppress the confrontation call between himself and the victim,” because “[t]hat

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Petitioner’s statements were obtained by some deceit (e.g. the victim failing to alert

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Petitioner that he had been found out and was being recorded) does not result in the

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statements being ‘compelled’ . . . [and] any effort by counsel to suppress the statements,

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on the grounds suggested by Petitioner, would have been futile.”). See also Illinois v.

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Perkins, 496 U.S. 292, 297 (1990) (“[T]he danger of coercion results from the interaction

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of custody and official interrogation.”).

Moreover, although Petitioner contends that he was

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Petitioner’s other objections fare no better. Petitioner still hasn’t substantiated his

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claim that the first hospital report was favorable to him and the R&R correctly concludes

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that Plaintiff can’t, in any event, establish prejudice under Strickland in light of the strong

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evidence of his guilt. Finally, as for trial counsel’s failure to object to the prosecutor’s

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closing argument, Petitioner simply repeats his earlier argument that the prosecutor’s

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argument was improper and doesn’t attempt address the R&R’s conclusion that counsel’s

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decision to address this argument on the merits (as opposed to objecting to it) was a tactical

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choice that is immune from second-guessing under Strickland.

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Accordingly, IT IS ORDERED that:

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(1)

The R&R’s recommended disposition (Doc. 24) is accepted;

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(2)

The amended petition (Doc. 6) is denied and dismissed with prejudice;

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(3)

A Certificate of Appealability and leave to proceed in forma pauperis on

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appeal are denied because the dismissal of the Petition is justified by a plain procedural bar

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and jurists of reason would not find the procedural ruling debatable; and

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(4)

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Dated this 5th day of March, 2019.

The Clerk shall enter judgment accordingly and terminate this action.

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