United States District Court, D. Oregon
Michael McShane United States District Judge
Marco Montez was convicted in state court of aggravated
murder and subsequently sentenced to death. Pursuant to 28
U.S.C. § 2254, he now brings his First Amended Petition
for Writ of Habeas Corpus, raising 40 claims of
constitutional deficiency underlying the proceedings in state
court. In a scheduling order of November 3, 2015, this Court
requested briefing on exhaustion, procedural default, and any
exceptions to procedural default. ECF #22. As set forth
below, the Court finds that specific claims meet the
exhaustion requirement and are appropriately before this
court. The remaining claims are subject to procedural
found Petitioner guilty of aggravated murder on May 27,
1988. See ECF #6-31, 166-67. Following
the sentencing phase of the proceedings, the jury determined
petitioner should be sentenced to death. See ECF
sentences of death are subject to automatic direct review by
the Oregon Supreme Court. ORS § 163.150(1)(f). Following
review of the Petitioner's claims, the Oregon Supreme
Court affirmed his convictions, but vacated the sentence of
death and remanded for resentencing. See State v.
Montez, 309 Or. 564 (1990) (Montez I).
second penalty-phase trial concluded on September 18, 1992.
The jury returned a unanimous verdict, again sentencing
petitioner to death.. ECF #6-43, 174. On direct review the
Oregon Supreme Court affirmed the sentence. State v.
Montez, 324 Or. 343 (1995). Petitioner's request for
certiorari was denied by the United States Supreme Court on
May 19, 1997. Montez v. Oregon, 520 U.S. 1233
then filed for post-conviction relief (PCR) in a collateral
state proceeding. This phase of the litigation eventually
proceeded to trial on his Ninth Amended Petition for PCR. The
PCR court denied relief on September 27, 2005. ECF #12-24,
30-55. Petitioner was represented by attorney Marc Sussman in
the PCR trial. Id.
appealed the decision of the PCR court to the Oregon Court of
Appeals on October 27, 2005. ECF #12-83, 103. As explained
infra, petitioner attempted to file several opening
briefs to the Court of Appeals in excess of that court's
page-length rules. See Pet., ECF #27, 63-69. The
Oregon Court of Appeals eventually issued an opinion denying
petitioner relief on September 22, 2010. Montez v.
Czerniak, 237 Or.App. 276 (2010). Sussman served as PCR
appellate counsel in the proceeding.
appealed to the Oregon Supreme Court, which initially denied
review. Upon reconsideration, the court denied petitioner
relief on March 20, 2014. Montez v. Czerniak, 355
Or. 1 (2014). Upon a subsequent request for reconsideration,
the court issued a minor modification, but generally adhered
to its prior disposition. Montez v. Czerniak, 355
Or. 598 (2014). Sussman represented petitioner through the
Supreme Court's decision to grant review.
filed a Notice of Intent to File Capital Habeas Petition
before this Court on September 30, 2014. ECF #1. On August
19, 2015, petitioner filed his Petition for Writ of Habeas
Corpus. ECF #15. Petitioner filed his First Amended Petition
for Writ of Habeas Corpus on July 27, 2016. ECF #27.
OF CLAIMS AT ISSUE
brief on exhaustion and procedural default, respondent
identified the following claims as procedurally defaulted and
thus not subject to federal habeas review:
Claim 2: Due Process Clause violation based on
improper statements made in prosecution's closing
Claim 4: ineffective assistance of counsel for
failing to present evidence that petitioner's
co-defendant received a sentence of life imprisonment;
Claim 6: ineffective assistance of counsel for
failing to present evidence of petitioner's past suicide
Claim 7: ineffective assistance of counsel for
failing to present evidence of impact of death sentence on
Claim 13: ineffective assistance of counsel for
failing to present evidence that petitioner expressed remorse
to a corrections officer following his incarceration;
Claim 14: ineffective assistance of counsel for
failing to argue in closing remarks that petitioner had
Claim 15: ineffective assistance of counsel for
failing to request that the jury be apprised of
petitioner's prior consecutive sentences for lesser
Claim 17: ineffective assistance of counsel for
failing to appeal the trial court's refusal to appoint a
Claim 20: ineffective assistance of counsel for
failing to make a decision regarding whether to call death
row inmates as witnesses until after voir dire;
Claim 26: ineffective assistance of counsel for
failing to ensure comments by the trial court regarding an
“automatic life sentence” in the event the death
sentence was reversed were reduced to writing in the final
Claim 27: ineffective assistance of counsel for
failing to object to the second penalty-phase trial on Fifth
Amendment double jeopardy grounds;
Claim 28: double jeopardy violation under the Fifth
Claim 31: ineffective assistance of counsel for
failing to object to testimony regarding petitioner's
prior comments as reported by a witness;
Claim 32: ineffective assistance of appellate
counsel for failing to challenge court's admission of
petitioner's prior comments as reported by a witness;
Claim 40: cumulative constitutional error requiring
that sentence of death be vacated. These claims are the
subject of the discussion below.
respect to Claims 38 and 39, Respondent
indicates that he has waived any defense of procedural
default as to the issue of “cruel and unusual
punishment contrary to the evolving standards of
decency” under the Eighth and Fourteenth Amendments.
Pet., ECF #27, 405-56; Resp.'s Br., ECF
#31, at 32-33. As such, the parties will address the merits
of these claims in subsequent briefing.
parties agree that the following claims are exhausted:
Claims 1, 3, 5, 8,
9, 10, 11, 12,
16, 18, 19, 21,
22, 23, 24, 25,
29, and 30. Id., 10-11. The
parties will address the merits of these claims in subsequent
parties further agree that the following claims are not yet
ripe for litigation because no death warrant has been issued:
Claim 33, 34, 35, 36, and
37. Id.; Resp.'s Resp. Br.,
ECF #31, 29-32; Pet.'s Resp., ECF #38, 5-6.
Petitioner continues to assert the claims in order to
preserve them in the event that a death warrant is issued.
Pet.'s Resp., ECF #38, 6.
threshold matter, in order to seek a writ of habeas corpus in
federal court, a state prisoner must first exhaust all
available state remedies. 28 U.S.C. § 2254(b)(1).
Exhaustion is established when a petitioner “fairly
presents” the legal basis of each of his federal claims
to each presiding state court, referencing both the specific
federal constitutional guarantee at issue and the facts that
support the petitioner's request for relief. Baldwin
v. Reese, 541 U.S. 27, 29 (2004) (citing Duncan v.
Henry, 513 U.S. 364, 365 (1995)); see also Gray v.
Netherland, 518 U.S. 152, 162-63 (1996). Generally, when
a petitioner fails to exhaust state remedies, “and the
court to which the petition would be required to present his
claims in order to meet the exhaustion requirement would now
find the claims procedurally barred, ” then the claim
is considered procedurally defaulted. Coleman v.
Thompson, 501 U.S. 722, 735 n.1 (1991) (citations
petitioner may still be eligible for federal habeas relief
despite the fact that his claim has been procedurally
defaulted if the petitioner “can demonstrate
cause for the default and actual prejudice
as a result of the alleged violation of federal law, or
demonstrate that failure to consider the claims will result
in a fundamental miscarriage of justice.” Id.
at 750 (emphasis added). “Cause for a procedural
default on appeal ordinarily requires a showing of some
external impediment preventing counsel from constructing or
raising [a] claim.” Id. (quoting Murray v.
Carrier, 477 U.S. 478, 492 (1986) (internal brackets
omitted)). Although Coleman held a post-conviction
attorney's negligence did not constitute cause, the United
States Supreme Court subsequently carved out a narrow
exception in Martinez v. Ryan, 566 U.S. 1 (2012).
The Martinez Court held:
Where, under state law, claims of ineffective assistance of
counsel must be raised in an initial-review collateral
proceeding, a procedural default will not bar a federal
habeas court from hearing a substantial claim of ineffective
assistance at trial if, in the initial-review collateral
proceeding, there was no counsel or counsel in that
proceeding was ineffective.
Id. at 17; see also Trevino v. Thaler, 569
U.S. 413, 414 (2013).
order to establish causation under Martinez, the
Ninth Circuit requires: (1) PCR counsel for the prisoner was
ineffective under the standards set forth in Strickland
v. Washington, 466 U.S. 668 (1984); (2) trial counsel
was ineffective under Strickland; and (3) the
underlying ineffective assistance of trial counsel claim was
substantial, i.e., the claim had “some merit.”
Apelt v. Ryan, 878 F.3d 800, 825-26 (9th Cir. 2017)
(quoting Martinez, 566 U.S. At 14). Unpacking these
standards, a petitioner must first show first that his
post-conviction relief counsel was so deficient that,
pursuant to Strickland, there was a reasonable
probability that, absent the deficient performance, the
result of the post-conviction relief proceedings would have
been different. Apelt, 878 F.3d at 825 (citation
omitted). Next, the same showing of ineffective assistance of
counsel under Strickland applied to the underlying
trial court. Finally, a petitioner must demonstrate the claim
is “substantial” to the extent it meets the
standard for issuing a certificate of appealability, to wit,
“a petitioner must show that reasonable jurists could
debate whether the issue should have been resolved in a
different manner or that the claim was adequate to deserve
encouragement” to proceed. Id. at 828 (citing
Miller-El v. Cockrell, 537 U.S. 322, 336 (2003)).
requests an evidentiary hearing in order to present evidence
that would “further demonstrate that any procedural
default should be excused[.]” Pet., ECF #27,
429; Pet.'s Resp., ECF #38, 1-2. Specifically,
he asks the Court to allow petitioner's PCR attorney,
Marc Sussman, to explain why he did not allege certain
claims regarding ineffective assistance by
petitioner's trial counsel during the 1992 penalty phase
of petitioner's murder trial.
has filed an 36-page affidavit by Mr. Sussman in which
Sussman explains, claim by claim, that he was aware of the
claim's potential import, that there was no strategic
reason not to raise the claim, and that the failure to do so
was inexcusable. He therefore concludes that his performance
constituted prejudicial ineffective assistance of counsel.
See, e.g., Sussman Aff., ECF #27-3, 7-8.
Mr. Sussman further explains that he also failed to preserve
several claims due to page-length limitations imposed by ...