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Montgomery v. Morris

United States District Court, D. Arizona

March 5, 2019

Curtis Montgomery, Petitioner,
v.
S. Morris, et al., Respondents.

          ORDER

          Dominic W. Lanza, United Slates District Judge

         On November 27, 2017, Petitioner filed an amended petition for writ of habeas corpus under 28 U.S.C. § 2254 (“the Petition”). (Doc. 6.) On November 30, 2018, Magistrate Judge Boyle issued a Report and Recommendation (“R&R”) concluding the Petition should be denied and dismissed with prejudice. (Doc. 23.) Afterward, Petitioner filed written objections to the R&R. (Doc. 24). As explained below, the Court will deny Petitioner's objections.

         I. Background

         Petitioner was sentenced to life in prison after being convicted at trial of sexual abuse, child molestation, and sexual conduct with a minor. (Doc. 23 at 2.) The evidence at trial included (1) a confrontation call in which Petitioner made incriminating statements and (2) Petitioner's “full-blown confession” to the police. (Id.)

         In his direct appeal, Petitioner raised only one issue: whether the trial court abused its discretion by admitting expert testimony concerning general characteristics of child sexual abuse victims. (Id. at 12; see also State v. Montgomery, 2016 WL 3660255 (Ariz.Ct.App. 2016)). On July 5, 2016, the Arizona Court of Appeals affirmed Petitioner's conviction. (Doc. 23 at 2.)

         On September 8, 2016, Petitioner filed a notice of post-conviction relief. (Id.) On November 28, 2016, Petitioner's counsel filed a notice stating there were no colorable claims. (Id.) On February 27, 2017, Petitioner-acting pro se-filed a petition raising three claims: (1) prosecutorial misconduct/perjury, (2) ineffective assistance, and (3) juror bias. (Id.) On June 2, 2017, the trial court denied the petition. (Id.) Petitioner didn't seek review in the Arizona Court of Appeals. (Id. at 3.)

         On October 5, 2017, Petitioner filed a habeas petition, which he later amended. (Id.) The Petition raises four claims: (1) ineffective assistance, (2) erroneous evidentiary rulings by the trial court, (3) prosecutorial misconduct, and (4) actual innocence. (Id.)

         The R&R was issued in November 2018. (Doc. 23.) As for the first claim in the Petition (ineffective assistance), the R&R begins by noting that this claim is procedurally defaulted because Petitioner didn't appeal the denial of his PCR petition to the Arizona Court of Appeals. (Id. at 5-7.) Next, the R&R addresses whether, under Martinez v. Ryan, 566 U.S. 1 (2012), Petitioner can establish cause and prejudice to excuse the default (based on his claim that PCR counsel was ineffective). (Id. at 7-11 & n.4.) Specifically:

         (1) As for Petitioner's claim that trial counsel was ineffective by failing to present a CAT scan showing that Petitioner had cognitive disabilities, the R&R concludes this claim is insubstantial because (1) the proffered evidence only shows “some minimal irregularity” in Petitioner's brain, not Alzheimer's or dementia, (2) Petitioner “fails to explain how dementia would have caused him to commit [sex] offenses on a child, ” and (3) Petitioner's filings in this case are “inconsistent with his claim of diminished capacity.” (Id. at 7-8.)

         (2) As for Petitioner's claim that trial counsel was ineffective by failing to impeach the victim with the first hospital report, which didn't show the victim had bruises, the R&R concludes this claim is insubstantial because (1) “Petitioner did not attach the reports to the Petition, so Petitioner fails to substantiate his claim, ” (2) Petitioner was accused of sexual conduct, not physical assault, so the absence of bruises wouldn't negate the charge, and (3) Petitioner can't establish prejudice as to this issue “in light of his pretrial admissions that he committed numerous sexual acts on the victim.” (Id. at 8.)

         (3) As for Petitioner's claim that trial counsel was ineffective by failing to investigate whether a particular witness had a motive to coach the victim to lie (and to impeach the witness on that basis), the R&R concludes this claim is insubstantial because (1) Petitioner offered only a cursory allegation of the witness's motivation and (2) the witness's testimony was, in any event, “brief and far less significant that the victim's testimony and Petitioner's numerous incriminating statements.” (Id. at 8-9.)

         (4) As for Petitioner's claim that trial counsel was ineffective by failing to object to the prosecutor's closing argument, the R&R concludes this claim is insubstantial because counsel made a tactical choice to address the prosecutor's statement on the merits, rather than object to it. (Id. at 9-10.)

         (5) As for Petitioner's claim that trial counsel was ineffective by failing to ask certain questions during the redirect exam of the defense witness on false confessions, the R&R concludes this claim is insubstantial because (1) it is speculative whether the expert would have provided favorable answers to the line of questions proposed by Petitioner and (2) trial counsel's decision to avoid potentially damaging testimony was a tactical decision. (Id.)

         (6) As for Petitioner's claim that trial counsel was ineffective by failing to “timely” seek the removal of a juror who was crying during opening statements, the R&R concludes this claim is insubstantial because counsel did seek the removal of the juror (albeit unsuccessfully) once opening statements were complete and “[n]othing in the record suggests the outcome would have been different if counsel had raised the ...


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