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Montgomery v. Goodwin

United States District Court, W.D. Louisiana, Lake Charles Division

February 5, 2018

KENNITH W. MONTGOMERY DOC # 123966
v.
JERRY GOODWIN

         SECTION P

         UNASSIGNED DISTRICT JUDGE

          MEMORANDUM ORDER

          KATHLEEN KAY UNITED STATES MAGISTRATE JUDGE

         Before the court is a petition for writ of habeas corpus filed pursuant to 28 U.S.C. § 2254 by pro se petitioner Kennith Montgomery. Montgomery is an inmate in the custody of the Louisiana Department of Public Safety and Corrections. He is incarcerated at David Wade Correctional Center in Homer, Louisiana.

         I.

         Background

          Following a jury trial in the Fourteenth Judicial District Court, Calcasieu Parish, Louisiana, Montgomery was convicted of two counts of distribution of cocaine, a violation of Louisiana Revised Statute § 40:967. State v. Montgomery, 158 So.3d 87, 89 (La. Ct. App. 3d Cir. 2014). After sentencing, he was adjudicated a habitual offender by separate proceeding sentenced to two concurrent thirty-year terms of imprisonment. Id. at 89. He appealed his convictions to the Louisiana Third Circuit Court of Appeal, raising the following assignments of error pro se and through counsel:

1. The trial judge failed to recuse himself or properly refer the recusal motion to another judge.
2. The trial judge denied the defendant a full and fair hearing on his motion to suppress.
3. The defendant was denied due process by the district attorney's failure to timely provide discovery.
4. The Calcasieu Parish method of selecting jurors is unconstitutionally prejudicial as it systematically excludes African-Americans from jury duty.

Id. The Third Circuit reviewed these claims on the merits and denied relief, with one judge filing a dissent asserting, in relevant part, that the majority had failed to consider all allegations under the denial of discovery claim. Id. at 89-96. The petitioner sought a writ of review in the Louisiana Supreme Court, which denied same on November 16, 2015. State v. Montgomery, 184 So.3d 23 (La. 2015). He did not file a petition for writ of certiorari in the United States Supreme Court. Doc. 1, p. 3.

         On or about December 2, 2015, Montgomery filed a pro se Uniform Application for Post-Conviction Relief with an accompanying memorandum in the trial court. Doc. 1, att. 3, pp. 71-92. There he renewed his claim based on late disclosure of evidence, and alleged that he was denied his right to self-representation under the Sixth Amendment when the trial court appointed standby counsel despite granting his motion for self-representation. Id. Within that second claim, he alleged that stand-by counsel prevented him from adequately preparing for trial by failing to timely provide him with discovery and give him notice of his new trial date. Id. at 91-92. He states that the trial court denied this application on the merits and his exhibits show that he then sought review in the Third Circuit. Id. at 94-115; see Id. at 104 (quoting trial court's ruling). The Third Circuit denied writs, finding no error to the trial court's ruling. Id. at 120. Montgomery then sought review in the Louisiana Supreme Court, adding a claim that the Third Circuit had “grossly departed from proper judicial proceedings” in its treatment of his pro se writ application. Id. at 3-27. The Louisiana Supreme Court denied review on November 17, 2017.[1] Id. at 1.

         Montgomery then filed his petition for writ of habeas corpus in this court on January 9, 2018. Doc. 1, p. 15. Here he raises the following claims for relief:

1. The trial court erred in allowing the state to introduce video evidence at trial, which it only turned over to the ...

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