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Montez v. Premo

United States District Court, D. Oregon

October 15, 2018

MARCO MONTEZ, Petitioner,
v.
JEFF PREMO, Superintendent, Oregon State Penitentiary, Respondent.

          ORDER

          Michael McShane United States District Judge

         Petitioner 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 default.

         HISTORY OF PROCEEDINGS

         A jury found Petitioner guilty of aggravated murder on May 27, 1988.[1] See ECF #6-31, 166-67. Following the sentencing phase of the proceedings, the jury determined petitioner should be sentenced to death. See ECF #6-34, 191-92.

         All 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).

         Petitioner's 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 (1997).

         Petitioner 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.

         Petitioner 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.

         Petitioner 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.

         Petitioner 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.

         SUMMARY OF CLAIMS AT ISSUE

         In his 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 argument;
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 attempts;
Claim 7: ineffective assistance of counsel for failing to present evidence of impact of death sentence on petitioner's daughter;
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 expressed remorse;
Claim 15: ineffective assistance of counsel for failing to request that the jury be apprised of petitioner's prior consecutive sentences for lesser crimes;
Claim 17: ineffective assistance of counsel for failing to appeal the trial court's refusal to appoint a mitigation expert;
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 judgment;
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 Amendment;
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.

         With 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[2]; Resp.'s Br., ECF #31, at 32-33. As such, the parties will address the merits of these claims in subsequent briefing.

         The 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 briefing.

         The 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.

         LEGAL STANDARDS

         As a 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 omitted).

         A 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[3] 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).

         In 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)).

         REQUEST FOR HEARING

         Petitioner 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[4] regarding ineffective assistance by petitioner's trial counsel during the 1992 penalty phase of petitioner's murder trial.[5]

         Petitioner 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 ...


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