MONTGOMERY v. BROWN et al

Filing 26

ENTRY - having considered the pleadings and the expanded record, Montgomery's petition for writ of habeas corpus must be denied. Judgment consistent with this Entry shall now issue. The Court therefore denies a certificate of appealability ***SEE ENTRY FOR ADDITIONAL INFORMATION***. Signed by Judge William T. Lawrence on 2/1/2017.(DW)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
TERRE HAUTE DIVISION

CHRISTOPHER MONTGOMERY,
Petitioner,
vs.
RICHARD BROWN, Superintendent,
Respondent.

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No. 2:16-cv-0108-WTL-MJD

Entry Discussing Petition for Writ of Habeas
Corpus and Denying Certificate of Appealability
Christopher Montgomery seeks habeas corpus relief. Having considered pleadings and the
expanded record, the Court finds for the reasons explained in this Entry that the habeas petition
must be denied and this action dismissed with prejudice. In addition, the Court finds that a
certificate of appealability should not issue.
Background
Montgomery is serving the executed portion of sentences imposed following his
convictions for Murder and for Neglect of a Dependent. These convictions arose from the murder
and mistreatment of four-year-old Elijah Simpson, the son of Montgomery’s girlfriend Courtney
Simpson, during the early morning hours of March 30, 2007. The convictions were affirmed on
appeal in Montgomery v. State, 2008 WL 5062780 (Ind.Ct.App. Dec. 2, 2008), trans. denied. A
subsequent and limited direct appeal (sometimes hereafter “the second direct appeal”) resulted in

the appellate court concluding, in part, that the exclusion of certain evidence at trial was the proper
ruling. Montgomery v. State, 21 N.E.3d 846 (Ind.Ct.App. Nov. 21, 2014)(“The issues on appeal
are limited to issues related to the introduction of 404(b) evidence. . . . The trial court recognized
that the sole issue at trial was who inflicted the blunt force trauma that killed Elijah and found that
evidence of Courtney’s pattern of abuse of Elijah was not admissible to show that she committed
the offenses unless Montgomery could show that Elijah’s death was caused by a pattern of abuse.
He failed to do so, and indeed evidence was presented that he confessed to detectives that he threw
Elijah to the ground in a manner consistent with the injury causing death.”).
Applicable Law
Montgomery now seeks relief pursuant to 28 U.S.C. § 2254(a). This statute authorizes a
district court to issue a writ of habeas corpus on behalf of a person in custody pursuant to a state
court judgment “only on the ground that he is in custody in violation of the Constitution or laws
or treaties of the United States.” Id. The scope of the Great Writ is limited because a viable habeas
claim pursuant to § 2254(a) necessarily precludes a claim which is not based on alleged
noncompliance with federal law. See Wilson v. Corcoran, 131 S. Ct. 13, 16 (2010) (“But it is only
noncompliance with federal law that renders a State’s criminal judgment susceptible to collateral
attack in the federal courts.”). His petition is governed by provisions of the Antiterrorism and
Effective Death Penalty Act (“AEDPA”). See Lindh v. Murphy, 521 U.S. 320, 336 (1997).
“[U]nder AEDPA, federal courts do not independently analyze the petitioner’s claims;
federal courts are limited to reviewing the relevant state court ruling on the claims.” Rever v.
Acevedo, 590 F.3d 533, 536 (7th Cir. 2010). As one court has explained, “[i]t is this Court’s
obligation to focus “on the state court decision that previously addressed the claims rather than the
petitioner’s freestanding claims themselves.” McLee v. Angelone, 967 F.Supp. 152, 156 (E.D.Va.

1997). “Under the current regime governing federal habeas corpus for state prison inmates, the
inmate must show, so far as bears on this case, that the state court which convicted him
unreasonably applied a federal doctrine declared by the United States Supreme Court.” Redmond
v. Kingston, 240 F.3d 590 (7th Cir. 2001) (citing 28 U.S.C. § 2254(d)(1); Williams v. Taylor, 529
U.S. 362 (2000); Morgan v. Krenke, 232 F.3d 562 (7th Cir. 2000)). “A state-court decision
involves an unreasonable application of this Court’s clearly established precedents if the state court
applies this Court’s precedents to the facts in an objectively unreasonable manner.” Brown v.
Payton, 544 U.S. 131, 141 (2005) (internal citations omitted). “The habeas applicant has the
burden of proof to show that the application of federal law was unreasonable.” Harding v. Sternes,
380 F.3d 1034, 1043 (7th Cir. 2004) (citing Woodford v. Visciotti, 537 U.S. 19, 25 (2002)).
“The AEDPA’s standard is intentionally ‘difficult for Petitioner to meet.’” Woods v.
Donald, 135 S. Ct. 1372, 1376 (2015) (per curiam) (quoting White v. Woodall, 134 S. Ct. 1702
(2014); Metrish v. Lancaster, 133 S. Ct. 1781, 1786 (2013)). “As a condition for obtaining habeas
corpus from a federal court, a state prisoner must show that the state court's ruling on the claim
being presented in federal court was so lacking in justification that there was an error well
understood and comprehended in existing law beyond any possibility for fairminded
disagreement.” Harrington v. Richter, 562 U.S. 86, 103 (2011).
Discussion
The first step under § 2254(d)(1) is “to identify the ‘clearly established Federal law, as
determined by the Supreme Court of the United States’ that governs the habeas petitioner’s
claims.” Marshall v. Rodgers, 133 S. Ct. 1446, 1449 (2013) (citing Williams v. Taylor, 529 U.S.
at 412; Knowles v. Mirzayance, 556 U.S. 111, 122 (2009)).

Montgomery’s first habeas claim is his challenge to the sufficiency of the evidence as to
the murder conviction. The controlling federal law on this subject is the “rigorous” standard set
forth in Jackson v. Virginia, 443 U.S. 307, 319 (1979): “evidence, viewed in the light most
favorable to the State, is sufficient to support a conviction so long as any rational trier of fact could
find the essential elements of the offense to have been proved beyond a reasonable doubt.” Jones
v. Butler, 778 F.3d 575, 581 (7th Cir. 2015). Therefore, “[f]ederal review of these claims . . . turns
on whether the state court provided fair process and engaged in reasoned, good-faith
decisionmaking when applying Jackson’s ‘no rational trier of fact’ test.” Gomez v. Acevedo, 106
F.3d 192, 199 (7th Cir. 1999).
The Indiana Court of Appeals addressed this claim in Montgomery’s direct appeal, and in
doing so first explained its standard:
When considering a challenge to the sufficiency of evidence, we neither reweigh
the evidence nor judge witness credibility. McHenry v. State, 820 N.E.2d 124 (Ind.
2005). This review “respects ‘the [fact-finder]’s exclusive province to weigh
conflicting evidence.’” Id. at 126 (quoting Alkhalidi v. State, 753 N.E.2d 625, 627
(Ind. 2001)). Considering only the probative evidence and reasonable inferences
supporting the verdict, we must affirm “‘if the probative evidence and reasonable
inferences drawn from the evidence could have allowed a reasonable trier of fact to
find the defendant guilty beyond a reasonable doubt.’” McHenry v. State, 820
N.E.2d at 126 (quoting Tobar v. State, 740 N.E.2d 109, 111–12 (Ind. 2000)).
Montgomery v. State, 899 N.E.2d 760, *2 (Ind.Ct.App. 2008). The Indiana Court of Appeals then
summarized the evidence which reasonably supported the verdict:
The evidence shows that Montgomery picked up a small child, lifted him to a height
of at least five feet above the floor, and then dashed him to the floor flat on his back
with a force equivalent to a serious automobile accident—a force that would have
been what the doctor who performed the autopsy on Elijah termed a “major” force.
Transcript at 284. The force was so great, in fact, that it caused a fracture of Elijah’s
left occipital skull—a bone that in a four-year-old child is supple and requires great
force to fracture. Montgomery slammed Elijah down in this manner against a tile
floor, which of course provided no cushion for the blow. Under these
circumstances, Montgomery’s intent to kill Elijah may reasonably be inferred
beyond a reasonable doubt.

Id. The foregoing analysis by the Indiana Court of Appeals demonstrates that it engaged in
reasoned, good-faith decisionmaking when applying the Jackson-compatible standard to
Montgomery’s challenge to the sufficiency of the evidence. First, it set forth the state analog to the
Jackson standard and what the State was required to prove the conviction for murder—specifically,
that the child’s death was caused by the blunt force trauma of being thrown to the floor and then
that Montgomery acted with a sufficiently culpable state of mind. This was an assessment of the
evidence compatible with the federal Jackson standard and was a reasonable application of that
standard. And because it was a reasonable application of the controlling federal standard, “[u]nder
AEDPA . . . it cannot be disturbed.” Hardy v. Cross, 132 S. Ct. 490, 495 (2011).
Montgomery’s second habeas claim is that his right to present a defense was violated by
the trial court’s exclusion of what the parties have described as the Rule 404(b) evidence, this
being Courtney’s pattern of abuse of Elijah. On February 20, 2008, Montgomery filed a Notice to
the Court of Intent to use 404(b) Evidence regarding evidence of a pattern of abuse engaged in by
Courtney against Elijah, which he stated was “relevant and admissible as evidence of [her] guilt,
motive, identity, bias and interest.” The trial court held a hearing on the issue and ultimately ruled
that although some of the evidence was admissible, including evidence that Courtney had battered
Elijah a week prior to his death and that Elijah had a cut/bruise on his forehead at the time of his
death, it also ruled that most of the proffered evidence was not admissible.
Insofar as this is merely a challenge to a ruling on the admissibility of evidence, no federal
habeas review is permitted. Tyson v. Trigg, 883 F.Supp. 1213, 1218 (S.D.Ind. Sept. 6,
1994)(“Issues relating to the admissibility of evidence in a state criminal trial are generally
resolved under state law. . . . Therefore, a federal court issues a writ of habeas corpus only when a
state evidentiary ruling violates the defendant’s due process rights through the denial of a

fundamentally fair trial or violates some other specific constitutional protection.”)(internal
citations omitted). In this vein, therefore, Montgomery’s challenge to the evidentiary ruling,
treated as solely as an assertion of error of state law, is dismissed as legally insufficient. See
Swarthout v. Cooke, 131 S. Ct. 859, 861 (2011)(“federal habeas corpus relief does not lie for errors
of state law”).
“While the exclusion of significant defense evidence implicates constitutional values, a
defendant [asserting such a claim] must show that his interest clearly outweighs the state’s before
[this court] will interfere with routine procedural matters. Evidence of little importance, whether
merely cumulative or of little probative value, will almost never outweigh the state interest in
efficient judicial process.” Tyson, 883 F.Supp. at 1218 (internal citations and quotations omitted).
The Supreme Court has “defined the category of infractions that violate ‘fundamental fairness'
very narrowly.” Dowling v. United States, 493 U.S. 342, 352 (1990).
The respondent is correct in distinguishing the evidence Montgomery hoped to introduce
(Courtney’s pattern of abuse toward Elijah) and the actual cause of death. The State’s theory at
trial was that Elijah died from a single incident of blunt force trauma. The evidence supported this
theory, whereas Montgomery did not muster evidence that Elijah died from a pattern of abuse by
Courtney toward Elijah. The divergence between Montgomery’s defense effort and the evidence
as to the cause of Elijah’s death shows that the trial court’s rejection of Montgomery’s defense
effort was a reasonable exclusion of information which would not have shown a different cause of
death than that which the State had alleged and which the evidence supported. The exclusion of
this information as irrelevant was not an unreasonable application of controlling federal law.
Montgomery’s third habeas claim is that he was denied the effective assistance of counsel
in the second direct appeal. Montgomery’s contentions regarding this claim are that counsel should

have argued that the proper remedy would have been a new trial rather than a second direct appeal
and should have argued the Rule 404(b) evidence claim more effectively.
The federal constitution guarantees a criminal defendant the effective assistance of counsel
on appeal. Evitts v. Lucey, 469 U.S. 387, 396 (1985). Claims of ineffective assistance of appellate
counsel are measured against the same standard as those dealing with ineffective assistance of trial
counsel established in Strickland v. Washington, 466 U.S. 668 (1984). Howard v. Gramley, 225
F.3d 784, 789–90 (7th Cir. 2000). A petitioner who contends that appellate counsel rendered
ineffective assistance must show that the failure to raise an issue on direct appeal was objectively
unreasonable and that the decision prejudiced petitioner in the sense that there is a reasonable
probability that his case would have been remanded for a new trial or that the decision of the state
trial court would have been otherwise modified on appeal. Id. at 790.
This claim was not decided by the Indiana state courts. Accordingly, it is decided de novo
here, without AEDPA deference. See Villanueva v. Anglin, 719 F.3d 769, 777 (7th Cir. 2013).
Montgomery’s Strickland claim fails with respect to each prong of the ineffective
assistance of counsel test. As to the remedy, the Indiana Court of Appeals explained that the postconviction court had erred in ordering a new direct appeal rather than a new trial, but that
Montgomery had suffered no prejudice “because . . . we find that the trial court did not abuse its
discretion when it excluded certain evidence.” Montgomery v. State, 21 N.E.3d at 857. The second
direct appeal provided the review on the merits of the claim omitted from the first direct appeal.
That review, as has been made clear, correctly and reasonably found that the trial court’s Rule
404(b) ruling was correct. Montgomery fails to show that any different argument on this claim
would have produced a different result. In other words, Montgomery would not have prevailed in
securing a new trial if the Rule 404(b) evidence claim had been included in the first direct appeal

and “[c]ounsel is not ineffective for failing to raise meritless claims.” Warren v. Baenen, 712 F.3d
1090, 1104 (7th Cir. 2013); see also United States v. Stewart, 388 F.3d 1079, 1085 (7th Cir. 2004)
(“Stewart's counsel cannot have been ineffective for failing to pursue what we have concluded
would have been a meritless [claim].”); Stone v. Farley, 86 F.3d 712, 717 (7th Cir. 1996) (“Failure
to raise a losing argument, whether at trial or on appeal, does not constitute ineffective assistance
of counsel.”). As to the Rule 404(b) argument, Montgomery has not identified a stronger argument
than that which was made in his second direct appeal.
Conclusion
A federal habeas court's role in reviewing state prisoner applications was modified by the
AEDPA—“drastically changed,” Bailey v. Mitchell, 271 F.3d 652, 655 (6th Cir. 2001)--“in order
to prevent federal habeas ‘retrials’ and to ensure that state-court convictions are given effect to the
extent possible under law.” Bell v. Cone, 535 U.S. 685, 693 (2002). As the 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). The first and second habeas
claims do not warrant relief in light of the deferential standard required by the AEDPA. Harrington
v. Richter, 131 S. Ct. 770, 786 (2011) (“A state court’s determination that a claim lacks merit
precludes federal habeas relief so long as ‘fairminded jurists could disagree’ on the correctness of
the state court’s decision.”)(quoting Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). The third
claim, to which AEDPA deference does not apply, likewise does not warrant relief. Having thus
applied the appropriate standards of review, and having considered the pleadings and the expanded
record, Montgomery’s petition for writ of habeas corpus must be denied.
Judgment consistent with this Entry shall now issue.

Certificate of Appealability
Pursuant to Federal Rule of Appellate Procedure 22(b), Rule 11(a) of the Rules Governing
§ 2254 Proceedings, and 28 U.S.C. § 2253(c), the Court finds that Montgomery has failed to
show that reasonable jurists would find “it debatable whether the petition states a valid claim of
the denial of a constitutional right.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). The Court
therefore denies a certificate of appealability.
IT IS SO ORDERED.
_______________________________
Date: 2/1/17
Distribution:

Hon. William T. Lawrence, Judge
United States District Court
Southern District of Indiana

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