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Montgomery v. Goodwin

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

October 4, 2018

KENNITH W. MONTGOMERY D.O.C. # 123966
v.
JERRY GOODWIN

         SECTION P

          REPORT AND RECOMMENDATION

          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 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.

         This 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.

         I.

         Background

         Montgomery 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.[1] 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.

         II.

         Law & Application

         Rule 4 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.

         The 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, ...

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