Montgomery v. Warden Green et al
Filing
7
ORDER ADOPTING 5 FINDINGS AND RECOMMENDATIONS in full. Petition 1 is DISMISSED. A certificate of appealability is DENIED. Signed by Judge Dana L. Christensen on 11/15/2016. Mailed to Montgomery. (TAG, )
FILED
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
MISSOULA DIVISION
NOV 15 2016
Cieri<, U S District Court
District Of Montana
Missoula
CV 16-132-M-DLC-JCL
MATTHEW LYNN MONTGOMERY,
Petitioner,
ORDER
vs.
WARDEN GREEN, ATTORNEY
GENERAL OF THE STATE OF
MONTANA,
Respondents.
United States Magistrate Judge Jeremiah C. Lynch entered findings and
recommendations in this matter on October 14, 2016, recommending dismissal of
Petitioner Matthew Lynn Montgomery's ("Montgomery") petition for writ of
habeas corpus, pursuant to 28 U.S.C. § 2254. Montgomery filed objections to the
findings and recommendations on November 3, 2016, and so is entitled to de novo
review of those findings and recommendations to which he specifically objects.
28 U.S.C. § 636(b )(1 )(C). This Court reviews for clear error those findings and
recommendations to which no party objects. See McDonnell Douglas Corp. v.
Commodore Bus. Mach., Inc., 656 F.2d 1309, 1313 (9th Cir. 1981); Thomas v.
Arn, 474 U.S. 140, 149 (1985). "Clear error exists ifthe Court is left with a
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definite and firm conviction that a mistake has been committed." United States v.
Syrax, 235 F.3d 422, 427 (9th Cir. 2000).
Having reviewed Montgomery's objections, the Court finds that
Montgomery primarily reiterates his perception that his constitutional rights have
been violated because the state trial court allegedly failed to use the proper
standard of probable cause for being charged with a felony. Montgomery
contends that because his state court challenges did not use what he calls "a lawful
determination of felony probably cause equal to or greater than the constitutional
'minimums"' the state trial courts had no jurisdiction over his case, and his
conviction should be reversed. All of Montgomery's arguments that relate to the
state court's determination of probable cause have already been addressed by his
numerous state petitions and appeals, and, most importantly, have no bearing on
Judge Lynch's determination that this Court lacks jurisdiction to hear
Montgomery's claims in the instant federal habeas petition.
Under 28 U.S.C. § 2244(b)(3)(A), "[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." Montgomery asserts that Judge Lynch did not
accurately support his determination that this habeas petition was successive in
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nature. (Doc. 6 at 4-5.) Further, Montgomery claims that Judge Lynch's citation
to Burton v. Stewart, 549 U.S. 147 (2007), is incorrect and "skewed" because it
"appears to be a simple generality pertaining to the federal courts' jurisdiction
over federal criminal judgments while not specifically authorizing jurisdiction
over state trial courts criminal judgments or barring new (original proceedings)
challenges in the state's highest courts as 'second or successive' in the federal
courts." (Doc. 6 at 5.) Montgomery expounds this argument when he states that
Judge Lynch's use of Magwood v. Patterson, 561 U.S. 320 (2010) is also
unsubstantiated. The Court finds that Judge Lynch's citations to Burton v. Stewart
and Magwood v. Patterson are accurate because they support the proposition that a
prisoner wishing to file a successive habeas petition in federal district court must
first receive authorization from the Court of Appeals. 549 U.S. at 157; 561 U.S. at
327.
Absent from Montgomery's objection is any new evidence that proves this
Court has jurisdiction. To do so, Montgomery would have to present an
authorization from the Ninth Circuit allowing the filing of his successive petition.
Judge Lynch accurately summarized the previous habeas petitions Montgomery
has filed in federal court: ( 1) a 2011 habeas petition challenging the validity of his
convictions and sentences for incest and sexual assault, which was denied by this
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Court (see Montgomery v. Frink, No. CV 11-120-M-DWM-JCL, 2012 WL 369212
(D. Mont. Feb. 3, 2012)); and (2) a 2013 habeas petition also challenging the same
state convictions, which was denied by this Court (see Montgomery v. T. Green,
No. CV 13-181-M-DWM-JCL (D. Mont. Feb. 14, 2014)). After these two federal
petitions, Montgomery again filed two habeas petitions in state court challenging
his 2006 convictions, which were both denied by the Montana Supreme Court.
Montgomery v. Green, No. OP 15-0507, Or. (Mont. Sept. 1, 2015); Montgomery v.
State, No. DA 16-0021, Or. (Mont. July 12, 2016). In other words, the judgment
he challenged in his 2011 and 2013 federal habeas applications was the same 2006
conviction challenged in all of his petitions, federal and state, and is the same
judgment challenged in this case. Thus, there is no dispute that this is a second or
successive petition and the Court lacks jurisdiction over this matter without Ninth
Circuit consent.
Finally, the Court agrees with Judge Lynch's determination that there is no
doubt this Court lacks jurisdiction and thus a certificate of appealability is not
warranted.
Accordingly, IT IS ORDERED that Judge Lynch's Findings and
Recommendations (Doc. 5) are ADOPTED IN FULL. Montgomery's petition for
writ of habeas corpus (Doc. 1) is DISMISSED for lack of jurisdiction.
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IT IS FURTHER ORDERED that the Clerk of Court shall enter by separate
document a judgment of dismissal.
IT IS FURTHER ORDERED that a certificate of appealability is DENIED.
DATED this IGJtiday ofNovember, 2016.
Dana L. Christensen, Chief Judge
United States District Court
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