Opinion
Civil Action No. 97-0075-CB-M
September 18, 2000
REPORT AND RECOMMENDATION
This is an action under 28 U.S.C. § 2254 by an Alabama inmate which was referred for report and recommendation pursuant to 28 U.S.C. § 636(b)(1)(B), Local Rule 72.2(c)(4), and Rule 8 of the Rules Governing Section 2254 Cases. The matter before the Court is Respondent's Motion for Reconsideration (Docs. 18, 29) and the evidence presented at the evidentiary hearing held on May 9, 2000.
Petitioner was convicted of robbery first degree in the Circuit Court of Mobile County on March 18, 1992 for which he received a sentence of life without parole in the state penitentiary. Appeal was made to the Court of Criminal Appeals of Alabama which affirmed the conviction and sentence (Doc. 12, Exhibit D). Petitioner filed a complaint with this Court on January 29, 1997, raising the following claims: (1) Petitioner's trial attorney rendered ineffective assistance; (2) he was not properly identified as the perpetrator of the crime; (3) the evidence was insufficient to convict him; and (4) the trial judge improperly denied written jury requests (Doc. 1).
On February 3, 2000, the Undersigned entered a report finding the second and third claims procedurally defaulted and the first and fourth claims to be without merit; it was recommended that the habeas petition be dismissed and that judgment be entered (Doc. 13). After reviewing Montgomery's objections, U.S. Chief District Judge Butler entered an order which accepted the recommendations made with regard to the latter three claims; however, because "of the facts asserted for the first time in petitioner's objection" to the report and recommendation which related to an alibi witness, this matter was remanded back to the Undersigned for an evidentiary hearing on Petitioner's claim that his trial attorney rendered ineffective assistance (Doc. 15).
Before proceeding to the analysis of that claim, however, the Court will consider Respondent's Motion to Reconsider the need for an evidentiary hearing (Docs. 18, 29). Respondent argues that Montgomery has failed to satisfy all statutory prerequisites in bringing this claim. Specifically, Respondent argues that Petitioner has not been diligent in his efforts to bring this claim before the State courts.
though the Court has already held the evidentiary hearing, the Motion was filed before the hearing took place and raises an issue which the Court believes should be considered.
The United States Supreme Court, in Williams v. Taylor, 120 S.Ct. 1479, 1491 (2000), discussed the effect changes made in the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) had on 28 U.S.C. § 2254, finding that the changes made it more difficult for federal habeas petitioners to obtain review of their claims if they have not been diligent in pursuing those claims in the state courts. The relevant portion of the changed statute states as follows:
(1) In a proceeding instituted by an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court, a determination of a factual issue made by a State court shall be presumed to be correct. The applicant shall have the burden of rebutting the presumption of correctness by clear and convincing evidence.
(2) If the applicant has failed to develop the factual basis of a claim in State court proceedings, the court shall not hold an evidentiary hearing on the claim unless the applicant shows that —
(A) the claim relies on —
(i) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable; or
(ii) a factual predicate that could not have been previously discovered through the exercise of due diligence; and
(B) the facts underlying the claim would be sufficient to establish by clear and convincing evidence that but for constitutional error, no reasonable factfinder would have found the applicant guilty of the underlying offense.28 U.S.C. 2254(e).
The evidence demonstrates that Montgomery never disclosed the name of his alibi witness in any State court petition or proceeding; Petitioner admits as much (Doc. 28, Tr. 87-89). Montgomery does point though to his trial attorney's statement, made in a letter dated May 11, 1992, concerning an alibi witness as support for his efforts in getting this claim considered ( see Doc. 1 attachment). However, his attorney's reference in a letter defending himself to the bar does not explain Petitioner's own failure to develop the factual basis of this claim. Montgomery's first mention of his alibi's name was in his objections to the previous report and recommendation entered by the Undersigned ( see Doc. 15, p. 1).
It should be noted that the letter was in response to a bar inquiry concerning Montgomery's counsel's effectiveness in which the attorney stated that he thought Petitioner had been "attempting to perpetrate a fraud on the court" in having the trial court subpoena witnesses to testify on his behalf (Doc. 1 attachment, p. 2).
The Court finds that Petitioner does not satisfy the requirements of subsection § 2254(e)(2)(A). The first prong of this subsection is inapplicable to this claim in that Montgomery's claim does not rely on a new rule of constitutional law. Petitioner has failed to prove the second prong in that there are no new facts being claimed now which could not have been discovered previously through due diligence. The alibi witness on which Montgomery relies was his wife so, factually, he had all of the necessary information to have brought this claim in the State courts. Put another way, Petitioner has not shown this Court factually what he could not have discovered in order to have brought this claim in the State courts. Because of this failure, the Court finds that Montgomery has not proven a necessary statutory requirement to have this claim heard in an evidentiary hearing.
Nevertheless, in order to fully consider Montgomery's claim, the Court will undergo the analysis contemplated in the balance of § 2254(e)(2). Specifically, in order to establish the need for an evidentiary hearing, Petitioner must show that "the facts underlying the claim would be sufficient to establish by clear and convincing evidence that but for constitutional error, no reasonable factfinder would have found the applicant guilty of the underlying offense." § 2254(e)(2)(B). The Court will now review the evidence of record, including that presented at the evidentiary hearing.
As stated in the previous report and recommendation, the evidence at trial came from one witness. The victim, Zelda Harris, testified that on a sunny Sunday morning she was robbed while working at the Shell Station at Broad and Government Streets (Doc. 12, Exhibit A, R. 25-47). Harris stated that she was talking on the phone when the Defendant, Jimmy Montgomery, came into the small office with a gun and ordered her to give him the money in the register. The victim testified that although Petitioner tried to disguise his face, the two of them had lived back door-to-back door for ten to twelve years, so she knew him well and was able to identify him as the robber. Harris also stated that two weeks after the robbery, Montgomery called her from jail, identified himself, admitted to being the robber, and begged her not to testify against him. The victim admitted that when she was describing her assailant to the police, who showed up within four minutes of the robbery, she first identified him as Johnny Montgomery, Jimmy's brother, but immediately corrected herself. Harris was certain at trial that Jimmy Montgomery was the robber.
At the evidentiary hearing held in this Court, Dom Soto testified that he was appointed to represent Petitioner at his trial in State court (Doc. 28, Tr. 5-7; see generally Tr. 4-42). Montgomery told the lawyer that he had alibi witnesses on the day of trial but Soto was unable to investigate the information at the time because he was having to try the case ( id. at Tr. 8, 12, 40). Soto did remember that a woman was somehow involved as a witness, but he did not remember that Petitioner had given him a name or told him anything else about the witness ( id. at R. 37, 38-39).
The Court will focus only on the evidence which relates to Petitioner's guilt or innocence and not get into a discussion of the attorney's preparedness for trial as it is not relevant at this moment.
Dolly Montgomery, Petitioner's mother, testified that Petitioner Jimmy had had a brother Johnny, now deceased but who had been living at the time of the robbery, and that the two of them looked like twins (Doc. 28, Tr. 43, 45, 53; see generally Tr. 43-54). Dolly stated that she had known the victim from childhood as they had all grown up in the same neighborhood ( id. at Tr. 44, 45-46).
The next witness was Joyce Shavers, Petitioner's wife when the robbery occurred ( id. at Tr. 54-55; see generally Tr. 54-73). She testified that she was living with Montgomery at the time of the robbery and that he had been with her at home from about two o'clock in the morning on the day of the robbery until she received a phone call later that morning from Petitioner's mother, saying that the police were looking for Montgomery as a suspect ( id. at Tr. 56-58, 65). Shavers also testified that she had taken part in a three-way phone conversation with Montgomery and the victim (though Zelda did not know that she was on the phone); she denied that Petitioner had admitted — or said anything that would have indicated — that he was the robber ( id. at Tr. 59-61). Shavers further testified that three-or-four months after Montgomery was arrested, she changed jobs and moved to another house and that Petitioner would not have known how to get in touch with her at the time of his trial ( id. at Tr. 67-71); the witness stated at one point that the phone at her more recent residence was listed in her name though she later testified that it was in her son's name ( cf. Tr. 71-72, 95-96). Shavers stated that she would have testified to all of this had Montgomery's attorney called her to testify at trial ( Id. at 58, 61).
Montgomery testified that he did not rob Zelda Harris, that he was at home at the time of the robbery ( id. at Tr. 74; see generally Tr. 73-92). Petitioner also stated that he did not tell Harris in the phone conversation that he had robbed her ( id. at Tr. 90-91). He testified that, at the time of trial, he told his lawyer that his ex-wife could be an alibi witness for him though he did not know how to get in touch with her; Petitioner expressed the opinion, however, that he could have found Shavers if he had been given the time ( id. at Tr. 77, 78, 82, 88).
After reviewing all of the evidence, the Court cannot say that Petitioner has demonstrated "by clear and convincing evidence" that if his attorney had been given extra time to prepare for trial and the evidence presented at the evidentiary hearing had been available for the trial jury's consideration, "no reasonable factfinder would have found [him] guilty of the underlying offense." Though the testimony presented at the evidentiary hearing provided a counterpoint to the direct identification of the sole prosecution witness, the evidence does not, in clear and convincing fashion, rule Montgomery out as the service station robber. Petitioner has failed to satisfy subpart B of § 2254(e)(2).
In summary, the Court finds that Petitioner has failed to satisfy either of the two statutory requirements necessary to obtain an evidentiary hearing on his claim of ineffective assistance of counsel. Specifically, the Court finds that Montgomery has not demonstrated that he exercised due diligence in establishing the identity of his alibi witness in bringing his ineffective assistance claim in the State courts; the Court further finds that Petitioner has not proven by clear and convincing evidence that no reasonable factfinder would have found him guilty of robbery but for his attorney's ineffective assistance.
Therefore, pursuant to this Court's reading of Williams v. Taylor, it is recommended that Respondent's Motion to Reconsider be granted (Docs. 18, 29). It is also recommended that, even though one has already been held, an evidentiary hearing is not warranted in this action. It is further recommended that the Court find that Montgomery has failed to make the showing necessary to prove his claim and that the habeas petition be denied and this action be dismissed.
However, Chief Judge Butler ordered that this matter be remanded to the Undersigned for an evidentiary hearing on Petitioner's claim that his trial attorney rendered ineffective assistance (Doc. 15). Therefore, in the alternative, the Undersigned will analyze Montgomery's claim as though Respondent had not filed a Motion to Reconsider, giving Judge Butler the opportunity to consider all the available evidence.
In Strickland v. Washington, 466 U.S. 668 (1984), the United States Supreme Court defined the showing a habeas petitioner must make to prevail on an ineffective assistance claim:
First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the sixth amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction . . . resulted from a breakdown in the adversary process that renders the result unreliable.Id. at 687.
Judge Butler has removed the first prong of the analysis from consideration, finding that the trial attorney's performance was deficient (Doc. 15, pp. 4-5). Though the attorney's performance was reasonable under the circumstances, his preparation was inadequate (Doc. 15, p. 5 n. 4). This Court's analysis, then, will focus on whether the deficiency resulted in prejudice to Montgomery.
In discussing the prejudice prong of an ineffective assistance claim, the Eleventh Circuit Court of Appeals, quoting the Strickland Court extensively, has stated the following:
"An error by counsel, even if professionally unreasonable, does not warrant setting aside the judgment of a criminal proceeding if the error had no effect on the judgment." Strickland, 466 U.S. at 691, 104 S.Ct. At 2066, 80 L.Ed.2d at 696. Strickland holds that the proper test for establishing prejudice resulting from counsel error is that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694, 104 S.Ct. At 2068, 80 L.Ed.2d at 698. A reasonable probability is a probability sufficient to undermine confidence in the outcome. Id. Thus, in the context of a criminal trial the standard is whether a jury, absent the errors, would have had a reasonable doubt concerning the guilt of the accused.Chatom v. White, 858 F.2d 1479, 1486 (11th Cir. 1988), cert. denied, 489 U.S. 1054 (1989).
The Court has previously summarized the evidence which Petitioner asserts he would have presented at trial had he been given the opportunity. That evidence, consisting of the testimony of Dom Soto (Petitioner's trial attorney), Dolly Montgomery (Petitioner's mother), Joyce Shavers (Petitioner's ex-wife), and Montgomery, essentially was that Petitioner was at home at the time of the robbery. That testimony was given by both Montgomery and his ex-wife.
There was also testimony from Dolly Montgomery that her two sons, Jimmy and Johnny, looked like twins. The Court notes that the victim, Zelda Harris, initially informed the police that her assailant was Johnny — not Jimmy — though she corrected herself to say that Jimmy was the one who had actually done it. It is further noted that Zelda said that the robber had tried to disguise his face.
Joyce Shavers testified that she was on the phone when Petitioner called Zelda Harris and that he did not admit that he had robbed her. Montgomery testified to the same thing. This directly contradicts the testimony of the victim.
While the Court has already found that Petitioner has not proven by clear and convincing evidence that no reasonable factfinder would have found him guilty of robbery but for his attorney's ineffective assistance, that is not the standard here. What Petitioner has to prove is that there is a reasonable probability that if his attorney had been afforded time to prepare for the trial, "the result of the proceeding would have been different." Chatom, 858 F.2d at 1486.
The Court found the witnesses at the evidentiary hearing to be credible. After reviewing all of the evidence, this Court finds that Montgomery has demonstrated "a probability sufficient to undermine confidence in the outcome." Chatom, 858 F.2d at 1486. Though the Court cannot say that a jury would not have convicted Montgomery after considering all of the evidence, the Court, likewise, cannot say that it would have convicted him. The Court finds that Petitioner has demonstrated ineffective assistance of counsel and that he did not get a fair trial.
Therefore, in the alternative, it is recommended that the writ of habeas corpus be granted, on a conditional basis, so that the State may, within ninety days of this Court's judgment becoming final, retry Montgomery on the charge of robbery first degree. In the event that the State does not retry Petitioner within the ninety days, Petitioner should be released.
Should the District Judge adopt this portion of the report and recommendation as the opinion of the Court and grant a conditional writ of habeas corpus, the Magistrate Judge further recommends that Petitioner be held in custody pending an appeal, if any, by the Respondent.
In determining whether a successful habeas petitioner should be released pending the State's appeal, the Court should consider such factors as the possibility of the prisoner's flight; the risk that the prisoner will pose a danger to the public if released; the State's interest in continuing custody and rehabilitation pending a final determination of the case on appeal, and the prisoner's substantial interest in release pending appeal. Hilton v. Braunskill, 481 U.S. 770, 777 (1987).
After consideration of the presumption favoring release, it is the Magistrate Judge's conclusion that incarceration during the appeal process is required in this case as there is evidence that there is a risk of flight. Specifically, the Court notes that Montgomery escaped State custody once before while his trial was pending (Doc. 12, Exhibit H, p. 1). It is further noted that Petitioner has prior convictions for theft of property second degree, illegal possession of a credit card, and burglary third degree, making him a habitual offender under Alabama law (Doc. 12, Exhibit A, R. 7, 65-66, 73-79); Petitioner also admitted that following his escape from Alabama's custody, he was convicted of burglary and carrying a weapon in Mississippi (Doc. 28, Tr. 80-81). Though none of his Alabama convictions, except this one, involved crimes which posed a risk to others, Montgomery was convicted of carrying a weapon in Mississippi; the Court therefore, considers Petitioner dangerous and a risk to the public. The State's interest in continuing custody and rehabilitation would seem to balance Petitioner's desire to be released pending appeal. After considering all of the factors, this Court concludes that Petitioner should be held in custody pending appeal.
is noted for the record that Petitioner's bail was set at ten thousand ($10,000) dollars prior to his initial trial setting and escape (Doc. 12, Exhibit A, p. 3).
In summary, the Undersigned makes the following recommendations: it is recommended that Respondent's Motion to Reconsider be granted (Docs. 18, 29). It is further recommended that an evidentiary hearing is not warranted in this action as Petitioner has failed to satisfy the high burden of § 2254(e)(2); in conjunction with this finding, it is recommended that this habeas petition be denied, that this action be dismissed, and that judgment be entered in favor of Respondent Charles Jones and against Petitioner Jimmy Lee Montgomery on all claims.
In the alternative, however, should the Court determine, for whatever reason, that an evidentiary hearing was necessary and that the evidence presented should be considered, it is recommended that the Court find that Petitioner has demonstrated that his attorney rendered ineffective assistance. In conjunction with this finding, it is recommended that Montgomery be retried on the charge of robbery first degree within ninety days of this Court's judgment becoming final and that judgment be entered in favor of Petitioner Jimmy Lee Montgomery and against Respondent Charles Jones. It is further recommended that Petitioner be detained pending his retrial.