Montgomery v. North Central Correctional Institution Warden

Filing 16

Opinion and Order. The Court ADOPTS the Report & Recommendation (Doc #: 13), OVERRULES the Objection (Doc #: 15), and dismisses with prejudice the Petition (Doc #: 1). Signed by Judge Dan Aaron Polster on 12/22/2016. (S,SR)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION

DANIEL MONTGOMERY,
Petitioner,
vs.
NEIL TURNER, Warden,
Respondent.

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CASE NO. 1:15 CV 330
JUDGE DAN AARON POLSTER
OPINION AND ORDER

This case is before the Court on the Report & Recommendation of Magistrate Judge
Kathleen B. Burke. (Doc #: 13 (“R & R”).) The Magistrate Judge recommends that the Court
dismiss with prejudice Petitioner Daniel Montgomery’s habeas corpus action pursuant to 28
U.S.C. section 2254 (“Petition”). (Doc #: 1 (“Petition”).) On October 9, 2003, Montgomery
pled guilty to the murder of Father William Gulas, O.F.M., at St. Stanislaus Church in Cleveland,
Ohio, with a three-year firearm specification, as amended in Count 1 of the indictment, and guilty
to the charge of aggravated arson with a three-year firearm specification, as amended in Count 3.
Ten months later, the trial court sentenced Montgomery to a total prison term of 24 years to life,
which counsel characterizes as a life sentence. (Doc #: 15 at 4.) Since then, Montgomery has
filed numerous motions in the state courts attacking, first, his sentence, and then much later, his
convictions. He filed the pending Petition on February 19, 2015.

Montgomery brings two constitutional claims. The first claim is for ineffective assistance
of trial counsel based on counsel’s alleged failure to fully investigate his case and his failure to
relay exculpatory evidence to him. The second claim is a claim for violation of his due process
rights based on the State’s alleged failure to disclose materially exculpatory evidence to him.
Magistrate Judge Burke has reviewed the Petition, the Return of Writ (Doc #: 4), and the
Traverse (Doc #: 11) before issuing the R & R.1 Specifically, the Magistrate Judge has
concluded, in a thorough decision analyzing every possible avenue for Montgomery to file a
timely habeas petition under 28 U.S.C. §§ 2244(d)(1)(A) and 2244(d)(1)(D), that the Petition is
time-barred. (See R & R at 18-25.) The Magistrate Judge has also explained in detail why
Montgomery is not entitled to equitable tolling. (See id. at 25-29.)
Montgomery, via counsel, has filed Objections to the R & R. (Doc #: 15 (“Obj.”).) With
respect to the question of timeliness, counsel ignores the numerous ways in which the Magistrate
Judge calculated the limitations expiration and simply asserts:
The Magistrate found that the statute of limitations expired for Mr. Montgomery’s
petition on January 30,2012, or with tolling, September 15, 2014. Petitioner
objects to the finding that he did not timely file his petition. Mr. Montgomery
filed his petition on February 19, 2015, within one year of the Ohio Supreme
Court’s denial of his Notice of Appeal and Memorandum in Support of
Jurisdiction that occurred on February 19, 2014. Mr. Montgomery has diligently
pursued his claims in the manner AEDPA intended. Pursuant to USC §
2244(d)(1)(D), Mr. Montgomery filed his claims as conscientiously as possible.
(Id. at 4-5.) In fact, the Magistrate Judge determined that, even if Montgomery did not discover
the factual predicate for his claims until January 29, 2011, the statute would have expired on
January 30, 2012 – three years before he filed his habeas petition. (R & R at 18-19.) Moreover,

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The Court has conducted its own review of all the briefs pending before the Magistrate

Judge.

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even if the statute was tolled while his motion to withdraw his guilty plea was pending in the
state courts, it would still have expired on September 15, 2014 for the reasons set forth at pages
24-25. And because he didn’t file his Petition until February 19, 2015, it was time-barred under
that particular scenario. Montgomery’s argument lacks the specificity required for the Court to
conduct a de novo review.
Montgomery also objects generally to the Magistrate Judge’s conclusion that equitable
tolling does not apply:
The U.S. Supreme Court in McQuiggan v. Perkins, 133 S.Ct. 1924 (2013),
recently weighed in on the interplay between actual innocence, AEDPA and the
statute of limitations. See also, Holland v. Florida, 560 U.S. 631 (2010).
Specifically, the Court in Perkins noted the importance of the diligence of the
Petitioner, as well as his innocence. In Mr. Montgomery’s case, he has
demonstrated both his diligence and innocence and therefore objects to the
Magistrate’s refusal to address his grounds for relief based on constitutional
violations.
(Obj. at 5.) That’s it. The Magistrate Judge, citing both Perkins and Holland, explained in detail
why equitable tolling does not apply. (See R & R at 25-29.) Montgomery does not object to
anything specific that the Magistrate Judge articulated. The Court agrees with the Magistrate
Judge’s conclusion that his innocence claim is, in fact, a claim of legal insufficiency rather than
factual innocence:
[Montgomery] has failed to articulate or demonstrate how disproving a confession
given by him proves he is actually innocent of the crimes he confessed to
committing and pleaded guilty to or that “in light of the new evidence, no juror,
acting reasonably, would have voted to find him guilty beyond a reasonable doubt.
Perkins, 133 S.Ct. at 1933. When it found no manifest injustice to warrant
reversal of the trial court’s denial of his motion to withdraw guilty plea, the state
court of appeals stated that, while Montgomery claimed that he made up his
confession, told his trial attorney he did so, and claimed his innocence to his trial
attorney, Montgomery, a highly educated person, nevertheless pleaded guilty
consistent with his confession 10 months after his confession. . . . While
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Montgomery claims that he did not know certain information and that he would
not have pleaded guilty if he had known that information, he still has not
identified “new evidence” to support a claim of factual innocence.
(R & R at 28-29 (citation to record omitted).)
For these reasons, the Court ADOPTS the R & R (Doc #: 13), OVERRULES the
Objection (Doc #: 15), and dismisses with prejudice the Petition (Doc #: 1).
IT IS SO ORDERED.

/s/Dan A. Polster December 22, 2016
Dan Aaron Polster
United States District Judge

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UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION

DANIEL MONTGOMERY,
Petitioner,
vs.
NEIL TURNER, Warden,
Respondent.

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CASE NO. 1:15 CV 330
JUDGE DAN AARON POLSTER
JUDGMENT ENTRY

For the reasons stated in the Opinion and Order filed contemporaneously with this
Judgment Entry, and pursuant to Federal Rule of Civil Procedure 58, it is hereby ORDERED,
ADJUDGED AND DECREED that the above-captioned case is hereby terminated and dismissed
as final.
Furthermore, pursuant to 28 U.S.C. §2253(c) and Fed. R. App. P. 22(b), there is no basis
upon which to issue a certificate of appealability. The Court certifies pursuant to 28 U.S.C. §
1915(a)(3) that an appeal from this decision could not be taken in good faith.
IT IS SO ORDERED.

/s/ Dan A. Polster December 22, 2016
Dan Aaron Polster
United States District Judge