United States District Court, W.D. Louisiana, Lake Charles Division
KENNITH W. MONTGOMERY D.O.C. # 123966
REPORT AND RECOMMENDATION
KATHLEEN KAY, UNITED STATES MAGISTRATE JUDGE
the court is a petition for writ of habeas corpus filed
pursuant to 28 U.S.C. § 2254 by Kennith W. Montgomery,
who is proceeding pro se in this matter. Montgomery
is an inmate in the custody of the Louisiana Department of
Public Safety and Corrections and is currently incarcerated
at David Wade Correctional Center in Homer, Louisiana.
matter is before the court on initial review under Rule 4 of
the Rules Governing Section 2254 Proceedings in the United
States District Courts, and has been referred to the
undersigned for review, report, and recommendations in
accordance with the provisions of 28 U.S.C. § 636. For
the following reasons IT IS RECOMMEDED that
the petition be DISMISSED WITHOUT PREJUDICE.
brings this petition to attack his 2013 conviction in the
Fourteenth Judicial District Court, Calcasieu Parish,
Louisiana, for two counts of distribution of powder cocaine
and the resulting thirty-year sentences he received for each
count. Doc. 1. As grounds for relief he claims: (1)
ineffective assistance of trial counsel and (2) imposition of
excessive sentences/erroneous application of a sentencing
enhancement. Id. Montgomery previously sought
federal habeas relief in this court for the same conviction
and sentences through a petition filed in this court under 28
U.S.C. § 2254 on January 9, 2018, and rejected on the
merits on August 24, 2018. See Montgomery v.
Goodwin, No. 2:18-cv-0067 (W.D. La. Aug. 27, 2018). In
those proceedings Montgomery voluntarily dismissed an
ineffective assistance of counsel claim as unexhausted, and
the court reviewed his remaining claims on the
merits. See Id. at docs. 5, 8, 26.
Montgomery has filed a Notice of Appeal to the Fifth Circuit,
and his appeal is currently pending before that court.
Id. at doc. 37. He also filed the instant petition
in this court on September 24, 2018. Doc. 1.
of the Rules Governing § 2254 Cases authorizes
preliminary review of such petitions, and states that they
must be summarily dismissed “[i]f it plainly appears
from the petition and any attached exhibits that the
petitioner is not entitled to relief.” Id. at
Rule 4. To avoid summary dismissal under Rule 4, the petition
must contain factual allegations pointing to a “real
possibility of constitutional error.” Id. at
Rule 4, advisory committee note (quoting Aubut v.
Maine, 431 F.2d 688, 689 (1st Cir. 1970)). Accordingly,
we review the pleadings and exhibits before us to determine
whether any right to relief is indicated, or whether the
petition must be dismissed.
Antiterrorism and Effective Death Penalty Act
(“AEDPA”), 28 U.S.C. § 2244, prohibits
repeated and abusive challenges to the same conviction.
Accordingly, the following restrictions are placed on
“second or successive” habeas petitions:
(1) A claim presented in a second or successive habeas corpus
application under section 2254 that was presented in a prior
application shall be dismissed.
(2) A claim presented in a second or successive habeas corpus
application under section 2254 that was not presented in a
prior application shall be dismissed unless--
(A) the applicant shows that the claim relies on a new rule
of constitutional law, made retroactive to cases on
collateral review by the Supreme Court, that was previously
unavailable; or (B)(i) the factual predicate for the claim
could not have been discovered previously through the
exercise of due diligence; and (ii) the facts underlying the
claim, if proven and viewed in light of the evidence as a
whole, would be sufficient to establish by clear and
convincing evidence that, ...