Keith L. Montgomery v. United States of America

Filing 74

MEMORANDUM OPINION AND ORDER denying a certificate of appealability; adopting 69 Proposed Findings and Recommendations; denying 59 MOTION to Vacate, Set Aside or Correct Sentence (2255) by Keith Lamont Montgomery; denying 61 MOTION for Evidenti ary Hearing by Keith Lamont Montgomery (pro se); denying 62 MOTION for Appointment of Counsel by Keith Lamont Montgomery (pro se); the Court dimisses this action with prejudice; directing the Clerk to remove this action from the active docket of this Court. Signed by Judge David A. Faber on 3/28/2017. (cc: attys; any unrepresented party) (mek)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
AT CHARLESTON
KEITH LAMONT MONTGOMERY,
Movant,
v.

CIVIL ACTION NO. 2:14-16267
CRIMINAL ACTION NO. 2:07-00058-1

UNITED STATES OF AMERICA,
Respondent.

MEMORANDUM OPINION AND ORDER
Pending before the court is Movant Keith Lamont
Montgomery’s (“Montgomery” or “Movant”) pro se Motion to Vacate,
Set Aside, or Correct Sentence by a Person in Federal Custody
pursuant to 28 U.S.C. § 2255 (Doc. No. 59), Motion for
Evidentiary Hearing (Doc. No. 61), and Motion for Appointment of
Counsel (Doc. No. 62).

By Standing Order, this matter was

referred to United States Magistrate Judge Cheryl A. Eifert.
Pursuant to 28 U.S.C. § 636(b), the Order directs Magistrate
Judge Eifert to submit proposed findings and recommendation
concerning the disposition of this matter.

Magistrate Judge

Eifert submitted her Proposed Findings and Recommendation
(“PF&R”) on October 20, 2015.

(Doc. No. 69.)

The PF&R

determined that Montgomery clearly is not entitled to relief
under 28 U.S.C. § 2255; therefore, Magistrate Judge Eifert found
that Montgomery is not entitled to an evidentiary hearing and

recommended that Montgomery’s § 2255 Motion be denied, and this
matter be dismissed from the active docket of this court.
In accordance with the provisions of 28 U.S.C. § 636(b),
the parties were allotted fourteen days, plus three mailing
days, in which to file any objections to Magistrate Judge
Eifert’s PF&R. Under § 636(b), the failure of any party to file
objections within the appropriate time frame constitutes a
waiver of that party’s right to a de novo review by this court.
See Snyder v. Ridenour, 889 F.2d 1363 (4th Cir. 1989); Thomas v.
Arn, 474 U.S. 140 (1985). Moreover, this court need not conduct
a de novo review when a party “makes general and conclusory
objections that do not direct the court to a specific error in
the magistrate’s proposed findings and recommendations.” Orpiano
v. Johnson, 687 F.2d 44, 47 (4th Cir. 1982).
Movant made a filing related to the PF&R: a set of
objections. (Doc. No. 70.)
addressed in turn.

Each of Movant’s objections is now

Although Movant addresses the equitable

tolling argument last, this court deems it “jurisdictional” and
will, accordingly, commence its analysis there.

United States

v. Kwai Fun Wong, 135 S. Ct. 1625, 1631 (2015).

The court

determines that the objections are meritless.

As a result, the

court adopts the PF&R, denies § 2255 relief (accordingly denying

2 

an evidentiary hearing as well), and directs the Clerk to
dismiss this case from the active docket of the court.
I.

EQUITABLE TOLLING IS UNWARRANTED IN THIS CASE

In this case, equitable tolling is foreclosed by governing
precedents.

Movant pins his hopes on McQuiggin v. Perkins, 133

S. Ct. 1924 (2013), which enables limited equitable tolling.

It

is unavailing.
McQuiggin did not disallow a federal court from
“entertaining an untimely first federal habeas petition raising
a convincing claim of actual innocence,” 133 S.Ct. at 1933—35.
In McQuiggin, the United States Supreme Court construed 28
U.S.C. § 2244(d)(1)(D), which is a provision of the statute of
limitations governing federal habeas petitions lodged by state
prisoners.

For a moment, the court assumes that McQuiggin

applies just as forcefully to § 2255 motions respecting federal
prisoners.

Even so, the United States Court of Appeals for the

Fourth Circuit accurately has held that “McQuiggin does not
extend to cases in which a movant asserts actual innocence of
his sentence, rather than of his crime of conviction.” United
States v. Jones, 758 F.3d 579, 586 (4th Cir. 2014).

Because

Movant’s assertions fall squarely within the “actual innocence
of his sentence” category, instead of the “actual innocence . .
. of his crime of conviction” category, McQuiggin is of no help
3 

to Movant—and equitable tolling is unavailable to him.
(emphases added).

Id.

Nor is the court surprised by the logic of

Jones since, on top of the risk inherent in extrapolating the
holding of a United States Supreme Court decision well beyond
its original contours, there is another lingering but no less
important concern: Whereas equitable tolling might be sensible
when the evidence required to raise an actual innocence claim
pertaining to the crime of conviction sometimes is hard to come
by and might surface later, no such delay is ordinarily
justifiable when the sentence itself is contested.
The time bar at issue here is jurisdictional.

This or any

other court has no warrant to liberally confer on a movant
equitable-tolling effect when “Congress [has] made the time bar
at issue jurisdictional.” Kwai Fun Wong, 135 S. Ct. at 1631.
“When that is so, a litigant’s failure to comply with the bar
deprives a court of all authority to hear a case.”

Id.

Indeed,

this is so much the case that “a court must enforce the
limitation even if the other party has waived any timeliness
objection.”
(2012)).

Id.

(citing Gonzalez v. Thaler, 565 U.S. 134

In such circumstances, “courts are obligated to

consider sua sponte issues that the parties have disclaimed or
have not presented.”

Gonzalez, 565 U.S. at 141.

Furthermore,

“a court must [enforce the limitation] even if equitable
4 

considerations would support extending the prescribed time
period.”

Id. (citing John R. Sand & Gravel Co. v. United

States, 552 U.S. 130, 133—34 (2008)).

Admitting that these are

“harsh consequences,” the United States Supreme Court has
required that there be a “clear statement” from the First Branch
that “Congress [did actually] imbue[] a procedural bar with
jurisdictional consequences.”
1632.

Kwai Fun Wong, 135 S. Ct. at

This is true here.
In addition, Movant’s motion is unavailing under the Fourth

Circuit’s decision in Whiteside v. United States, 775 F.3d 180
(4th Cir. 2014) (en banc), cert. denied, 135 S.Ct. 2890 (2015)
(Whiteside II).

This is because “[e]quitable tolling . . . may

not be applied where . . . the only impediment to timely filing
was the discouragement felt by petitioner when calculating his
odds of success.”

Id. at 186.

Additionally, the Fourth

Circuit’s decision in United States v. Simmons, 649 F.3d 237,
243-45, 250 (4th Cir. 2011) (en banc) (a prior conviction
qualified as a “controlled substance offense” under the
Guidelines only if the particular defendant could have been
sentenced to more than a one-year term of imprisonment for the
crime, without considering hypothetical enhancements or
aggravating factors), is inapplicable to Movant.

This is

because both of Movant’s convictions, in Virginia and in
5 

Michigan, count as “controlled substance offense” convictions.1
The court looks to the potential sentence, not the actual
sentence received, in making this determination.

Lastly, even

assuming that Movant somehow was entitled to equitable tolling
with respect to his career-offender argument, the Fourth Circuit
has held that “a mistaken career offender designation [under the
Guidelines] is not cognizable on collateral review,” unless a
conviction underlying the career-offender designation later is
vacated, thereby changing the defendant’s Guidelines range
itself. See United States v. Newbold, 791 F.3d 455, 459 (4th
Cir. 2015) (citation omitted).

This court’s opinion is governed

by Newbold, and the court must consider it vertical stare
decisis.
Accordingly, Movant’s motion is time-barred, and this
objection is OVERRULED.

Ordinarily, in the interest of judicial

restraint, this might end the case.

However, to give the issues

plenary treatment and to simplify them in case Movant

1

As the PF&R ably states, “Montgomery’s challenge to his
career offender designation is without merit given that his two
prior convictions met the definition for ‘controlled substance
offense[s]’ under the Guidelines, and the offense underlying the
instant motion was a ‘controlled substance offense.’” (Doc. No.
69) (citing United States Sentencing Guidelines §§ 4B1.1(a),
4B1.2(b)).
6 

subsequently elects to lodge an appeal, the court will also
address Movant’s remaining objections.2
II.

ADDITIONAL CLAIMS

A. A Sentencing Court’s Application of the Armed Career
Criminal Act (“ACCA”) Enhancement Would Have Been Valid
Here.
Movant did not receive an ACCA-based sentencing enhancement.
The Fourth Circuit’s decision in United States v. Span, 789 F.3d
320 (4th Cir. 2015), construing Shepard v. United States, 544 U.S.
13 (2005) (plurality opinion), would not have precluded a ACCA
sentencing enhancement here.

The Fourth Circuit has stated that

“Shepard-approved sources,” which include “the charging document,
plea

agreement,

plea

transcript

between

the

judge

and

the

defendant,” “unlike police reports, properly limit the inquiry of
sentencing courts to conclusive . . . judicial record[s].”

Span,

789 F.3d at 326 (citations and internal quotation marks omitted).
In prosecuting this collateral challenge, it is Movant’s
burden

“to

evidence.”

establish

his

grounds

by

a

preponderance

of

the

Sutton v. United States of America, No. CRIM.A.

2:02CR65, Civ.A. 2:05CV91, 2006 WL 36859, *2 (E.D. Va. Jan. 4,
2006).

A collateral attack under § 2255 is, by design, far more

2

Movant requests that the court grant him as a pro se
movant greater latitude and liberality in his filings. The PF&R
submitted by Magistrate Judge Eifert has done so. (Doc. No.
69.) The court too does so.
7 

limited than an appeal as the “usual and customary method of
correcting trial errors is by appeal.”

United States v. Allgood,

48 F. Supp. 2d 554, 558 (E.D. Va. 1999); see also United States v.
Frady, 456 U.S. 152, 165 (1982) (“[A] final judgment commands
respect. For this reason, we have long and consistently affirmed
that a collateral challenge may not do service for an appeal.”).
Since a collateral attack does not “serve the same functions as an
appeal, the doctrine of procedural default bars the consideration
of a claim that was not raised at the appropriate time during the
original proceedings or on appeal.”
979, *5.

Sutton, 2006 U.S. Dist. LEXIS

Even if error had been committed, Movant has not

demonstrated that Movant’s trial counsel did not forfeit the right
to challenge such an error later.3

Accordingly, it would have been

procedurally defaulted.
Only under three scenarios may a procedurally-defaulted claim
be raised on collateral review.4

The first instance is derived

3

“Waiver,” the court notes, “is different from forfeiture.
Whereas forfeiture is the failure to make the timely assertion
of a right, waiver is the ‘intentional relinquishment or
abandonment of a known right.’” United States v. Olano, 507
U.S. 725, 733 (1993) (citing Johnson v. Zerbst, 304 U.S. 458,
464 (1938)).
4 These scenarios could be judicially crafted only because
procedural default is “not a statutory or jurisdictional
command; rather, it is a prudential rule grounded in
considerations of comity and concerns for the orderly
administration of criminal justice.” McQuiggin, 133 S. Ct. at
1937 (citations and internal quotation marks omitted).
8 

from the United States Supreme Court’s decision in Frady, 456 U.S.
at 165.

Under this doctrine, a movant must demonstrate both: (1)

cause; and (2) actual prejudice caused by the alleged error.

Id.

at 167; see also Wainwright v. Sykes, 433 U.S. 72, 84 (1977);
United States v. Mikalajunas, 186 F.3d 490, 492—95 (4th Cir. 1999).
In order to demonstrate “cause,” a movant’s claim “must turn on
something external to the defense, such as the novelty of the claim
or a denial of effective assistance of counsel.”

Mikalajunas, 186

F.3d at 493 (quoting Murray v. Carrier, 477 U.S. 478, 494 (1986)).
To demonstrate “actual prejudice,” a movant must demonstrate “that
the error worked to his ‘actual and substantial disadvantage,’ not
merely that the error created a ‘possibility of prejudice.’”
Satcher v. Pruett, 126 F.3d 561, 572 (4th Cir. 1997) (quoting
Murray, 477 U.S. at 494).

This demanding test, the United States

Supreme Court has counseled courts, presents “a significantly
higher hurdle than would exist on direct appeal.”
at 166.

Frady, 456 U.S.

Moreover, the second instance “is when a petitioner can

demonstrate that he is actually innocent” of the crime(s) charged.
Sutton, 2006 U.S. Dist. LEXIS 979, *7.

The United States Supreme

Court “ha[s] . . . expressed a willingness to excuse a petitioner’s
default, even absent a showing of cause, ‘where a constitutional

Logically, it follows that “what courts have created, courts can
modify.” Id.
9 

violation has probably resulted in the conviction of one who is
actually innocent.’” McQuiggin, 133 S. Ct. at 1937—38 (quoting
Murray, 477 U.S. at 496); see also Schlup v. Delo, 513 U.S. 298,
326—27

(1995);

Finally,

the

assistance

House
third

claims:

v.

Bell,

instance
“[A]

claim

547

U.S.

directly
founded

518,

536—37

addresses
on

the

(2006).

ineffectiveallegation

of

ineffective assistance of counsel may also be properly raised in
a § 2255 motion even if such claim was not preserved at the trial
level or raised on direct appeal.”

Id. at *8.

Movant has not demonstrated that he is actually innocent of
the crime(s) charged.
second instance.
play.

Thus, the court may easily dispose of the

Now only the first and third instances remain in

Under the first instance, Movant may satisfy “cause” by

claiming the ineffective assistance of counsel.

Further, in order

to demonstrate “actual prejudice,” Movant must show “that the error
worked to his actual and substantial disadvantage,” not just “that
the error created a possibility of prejudice.”

Satcher, 126 F.3d

at 572 (citations and internal quotation marks omitted).

In fact,

the application of this test now collapses the distinction between
the second and third instances since the second prong of the
ineffective-assistance claim also implicates “actual prejudice.”
For the reasons given in the next section, Movant does not
satisfy the actual-prejudice prong involving either the first or
10 

the third instances.

Consequently, Movant’s ACCA argument is

hereby OVERRULED.
B. Movant Was Not Denied the Effective Assistance of Counsel.
Movant claims that because Movant’s trial counsel did not
object to the Government’s failure to provide him with a previousconviction notice under 21 U.S.C. § 851, counsel was ineffective.
In addition, Movant also claims that counsel’s failure to request
that a jury determine Movant’s sentence under the Sixth Amendment
rendered his counsel ineffective.
To succeed on an ineffective assistance of counsel claim,
Movant must satisfy both prongs of Strickland v. Washington, 466
U.S. 668, 687 (1984), and therefore demonstrate that: (1) his
counsel’s

performance

fell

below

an

objective

standard

of

reasonableness; and (2) a reasonable probability exists that, “but
for counsel’s unprofessional errors, the result of the proceeding
would have been different.”

Movant bears the burden of proof on

both of these prongs, not to mention the preponderance standard
that Movant must generally satisfy.
F.3d 183, 186 (4th Cir. 2010).

United States v. Luck, 611

The United States Supreme Court’s

teaching is that the Strickland standard requires us to give
considerable deference to trial counsel, not to mention to the
trial court.

This is because a “strong presumption” exists “that

11 

counsel’s

conduct

falls

within

professional assistance.”

the

wide

range

of

reasonable

Strickland, 466 U.S. at 689.

Fusing the two prongs together, it is fitting to recount that
counsel’s strategic choices are “virtually unchallengeable,” so
long as counsel makes them after comprehensive investigation of
relevant law and facts (or as comprehensive as the circumstances
may enable and require).

Strickland, 466 U.S. at 690; see also

Yarborough v. Gentry, 540 U.S. 1 (2003) (deference accorded to
attorney’s strategic choices during closing argument).

The same

is true of counsel’s “reasonable” decisions making investigation
unnecessary,

Strickland,

466

U.S.

at

691,

and

of

counsel’s

determinations about which issues to raise on appeal.

See Jones

v. Barnes, 463 U.S. 745 (1983) (relying on counsel’s professional
judgment for appellate issues).

To demonstrate prejudice under

the Strickland line of precedent, Movant must demonstrate that
there

is

“[a]

reasonable

probability,”

that

is

to

say,

“a

probability sufficient to undermine confidence in the outcome,”
that were it not “for counsel’s unprofessional errors, the result
of the proceeding would have been different.”
For

the

reasons

the

PF&R

has

466 U.S. at 694.

supplied,

Movant

has

not

demonstrated actual prejudice, without which relief is unavailable
to him.

(Doc. No. 69.)

Moreover, even on the objective standard

of reasonableness prong, Movant has not explained, and cannot
12 

explain, why the minor alleged deficiencies he attributes to trial
counsel

are

not

justifiable

professional judgment.5

simply

as

products

of

counsel’s

Might it not be that counsel did not

object to the Government’s failure to provide Movant with a
previous-conviction notice because counsel reasonably believed in
good faith that this objection would almost certainly be overruled?
See Christian v. Ballard, No. 3:05-cv-00879, 2013 WL 4068214, at
*15 (S.D.W. Va. June 6, 2013) (“Counsel’s failure to make a futile
motion cannot be the basis of an ineffective assistance claim.”)
(citing Moody v. Polk, 408 F.3d 141, 151 (4th Cir. 2005)); see
also

Lockhart

v.

Fretwell,

506

U.S.

364,

382

(1993)

(“[I]neffective-assistance claims predicated on failure to make
wholly

frivolous

or

unethical

arguments

will

generally

be

dispensed with under Strickland’s first prong. . .”). In addition,
since Movant received a sentence of 168 months, why is the 120month

sentence—a

relevant?

floor

under

the

previous-conviction

notice—

(Doc. No. 70.)

Under 21 U.S.C. § 851, information was

unnecessary in this case.

See United States v. Foster, 68 F.3d 86

(4th Cir. 1995).
The courts are not in the retrospective business of secondguessing the reasonable and strategic choices made by defense

5

This pertains to all the ineffective-assistance arguments
that Movant has raised.
13 

counsel—and particularly not so when the degree and kind of
deference the courts must apply is a high one.
here.

This is the case

Understandably, then, the United States Supreme Court has

forbidden this court from indulging the “natural tendency to
speculate as to whether a different . . . strategy might have been
more successful.”

Id.

In fact, “a court deciding an actual

ineffectiveness claim must judge the reasonableness of counsel’s
challenged conduct on the facts of the particular case, viewed as
of the time of counsel’s conduct,” Strickland, 466 U.S. at 690,
rather than “in hindsight.”

Id. at 680.

Consequently, under the

normal standards of Strickland analysis, Movant has not borne his
burden.

Judging by the lens of § 2255’s preponderance standard,

Movant’s ineffective-assistance claim fails, and is OVERRULED.
III. CONCLUSION
Additionally, the court has considered whether to grant a
certificate of appealability.

See 28 U.S.C. § 2253(c).

A

certificate will not be granted unless there is “a substantial
showing of the denial of a constitutional right.”
2253(c)(2).

28 U.S.C. §

The standard is satisfied only upon a showing that

reasonable jurists would find that any assessment of the
constitutional claims by this court is debatable or wrong and
that any dispositive procedural ruling is likewise debatable.
Miller-El v. Cockrell, 537 U.S. 322, 336—38 (2003); Slack v.
14 

McDaniel, 529 U.S. 473, 484 (2000); Rose v. Lee, 252 F.3d 676,
683—84 (4th Cir. 2001).

The court concludes that the governing

standard is not satisfied in this instance.

Accordingly, the

court DENIES a certificate of appealability.
Having reviewed the PF&R filed by Magistrate Judge Eifert,
the court (1) ADOPTS the findings and conclusions set forth
therein; (2) DENIES Movant’s Motion to Vacate, Set Aside, or
Correct Sentence by a Person in Federal Custody pursuant to 28
U.S.C. § 2255, (Doc. No. 59); (3) OVERRULES Movant’s Objections
(Doc. No. 70); (4) DENIES Movant’s Motion for Evidentiary Hearing
(Doc. No. 61); (5) DENIES Movant’s Motion for Appointment of
Counsel (Doc. No. 62); (6) DISMISSES this action, with prejudice;
and (7) DIRECTS the Clerk to remove this action from the active
docket of this court.
The Clerk is further directed to forward a copy of this
Memorandum Opinion and Order to Movant, pro se, and to all counsel
of record.
IT IS SO ORDERED this 28th day of March, 2017.
ENTER: 

David A. Faber
Senior United States District Judge

15