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Montgomery v. United States

United States District Court, S.D. Alabama, Southern Division

October 25, 2017

CAMERON C. MONTGOMERY, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          REPORT AND RECOMMENDATION

          WILLIAM E. CASSADY UNITED STATES MAGISTRATE JUDGE

         Petitioner, Cameron C. Montgomery, has filed a motion to vacate, set aside or correct his sentence pursuant to 28 U.S.C. § 2255 (Doc. 77).[1] This action has been referred to the undersigned for entry of a report and recommendation pursuant to 28 U.S.C. § 636(b)(1)(B) and General Local Rule 72(a)(2)(R). Following consideration of all relevant pleadings in this case and the evidence presented during the evidentiary hearing held on April 13, 2017, it is recommended that Montgomery's § 2255 motion be DENIED.

         FACTUAL AND PROCEDURAL BACKGROUND

         On December 30, 2013, Montgomery was charged in a two-count indictment with possession of a 9mm pistol and 30 9mm jacketed hollow point bullets after having been convicted of a felony offense in 2009, in violation of 18 U.S.C. § 922(g)(1) (Count One) and possessing a stolen firearm in violation of 18 U.S.C. § 922(j) (Count Two). Montgomery filed written notice of intent to plead guilty to Count One of the superseding indictment on February 6, 2014 (Doc. 15) and entered a plea of guilty to this charge on February 18, 2014. His decision to plead guilty was in concert with a written plea agreement that was executed on February 7, 2014 (Doc. 17). The plea agreement, signed by Montgomery and his attorney on February 7, 2014, contains an appeal waiver. (Id. at ¶¶ 24-27.) Therein, he waived his right to “file any direct appeal or any collateral attack, including a motion to vacate, set aside, or correct sentence under 28 U.S.C. § 2255.” The three exceptions to this waiver were if his sentence included a term of imprisonment in excess of the statutory maximum, if the sentence imposed should constitute an upward departure from the advisory guideline range, or if he desired to pursue a claim of ineffective assistance of counsel. (Id.)

         After the first sentencing hearing on May 19, 2014, Montgomery was sentenced to one hundred and eighty (180) months imprisonment. (Doc. 26.) At the end of that hearing, Judge Granade advised Petitioner of his right to appeal:

Now, Mr. Montgomery, you can appeal your conviction if you believe your guilty plea was unlawful or involuntary or if there is some other fundamental defect in the proceeding that was not waived by your guilty plea.
You also have a statutory right to appeal the sentence itself in certain circumstances, although you entered into a plea agreement which waives certain of those rights.
If you do decide to appeal, you must do so within 14 days of entry of judgment in this case and Ms. Colvin could file that notice for you.

(Transcript of Sentencing Hearing, Doc. 33 at 7.)[2]

         Petitioner did not file an appeal but filed a Motion Under 28 U.S.C. § 2255, (Doc. 28), that was granted by the Court (Doc. 44), due to error in applying the Armed Career Criminal Act's (“ACCA”) sentencing enhancement (see Doc. 36). Petitioner's sentence was vacated and scheduled for a resentencing hearing. (Doc. 44.) Petitioner was resentenced without the ACCA enhancement to seventy-one (71) months imprisonment on August 28, 2015. (Doc. 58.) The pre-sentence investigation report (“PSR”) that was prepared for Petitioner's resentencing hearing (“second PSR”) included in the criminal history section a burglary, second degree, conviction, which added three (3) points to Petitioner's criminal history points. (Doc. 49, at ¶ 33.) He was sentenced on this state conviction on May 22, 2014, three days after his first federal sentencing hearing. The PSR prepared for Petitioner's original sentencing hearing (“first PSR”) showed the burglary, second degree, as a pending charge and assigned no points for it. (Doc. 23, at ¶ 40.)

         This second motion pursuant to 28 U.S.C. § 2255 falls within the third exception to the appeal waiver since Petitioner bases his motion solely on an ineffective assistance of counsel claim alleging that his attorney did not file a notice of appeal as instructed after the resentencing hearing. (Doc. 77.) Petitioner contends “he specifically expressed to his counsel that [he] wanted to appeal his sentence of 71 months vs. a possible 24 to 30 month or lesser sentence.” (Id. at 2.)

         An evidentiary hearing was held on this sole issue on April 13, 2017; the witnesses called were Petitioner, Cameron C. Montgomery, and his attorney, Richard Shields, Esquire. Montgomery testified that immediately after resentencing, he specifically asked Shields to file an appeal because he thought the trial judge was wrong when she established an advisory guideline range at 70 to 87 months as opposed to a range of 57 to 71 months.[3] Petitioner's testimony was that this request was made as he was being escorted to a holding cell by deputy marshals. Montgomery estimated that the conversation with his attorney lasted approximately two minutes. According to Montgomery, Shields responded by telling him that he should be happy with the 71-month sentence since it constituted a significant reduction from 180 months that was originally imposed. On cross, Montgomery confirmed that Shields had given him a dedicated phone number that would allow him to call his attorney directly and avoid the attorney/client communication problems normally associated with being held in a detention facility. He also testified that he used the number to call Shields on one occasion after the sentencing hearing, not to ask him to appeal the sentence but to inquire if he had filed the appeal. He was unable to reach Shields on that single occasion and did not state that he left a message for a return call. Montgomery was also adamant about never signing a Notice-Of-No-Appeal Form (Doc. 77, Exh. 4)[4] or ever telling Shields that he did not want to appeal his sentence.

         Shields testified that he has practiced law for thirty-six years and has been a member of the Bar of this Court for thirty-two years. His criminal practice comprises 30 to 40% of his total practice and he has filed and argued numerous appeals in the Eleventh Circuit. He is very familiar with appellate rights and his duty to discuss the advantages and disadvantages of filing an appeal with his clients. The attorney/client relationship in this case was established by court appointment after Montgomery successfully had his original 180-month sentence vacated. (Doc. 44.) After appointment, Shields met with Montgomery in the detention facility two or three times prior to the sentencing hearing. During these meetings, he discussed the Sentencing Guidelines calculations with Montgomery and stated his opinion that Judge Granade would find the applicable range to be 70 to 87 months which would mean that she would most likely sentence him to 70 months pursuant to the plea agreement which called for a sentence at the low end of the Guidelines. They also discussed filing objections to that portion of the second PSR calculating the Guidelines range to be 70 to 87 months instead of 57 to 71 months. The argument was that the lower range should have been used because Montgomery had not been convicted on the charge of burglary, second degree, until after his first sentencing hearing. See United States v. Ticchiarelli, 171 F.3d 24, 35 (1st Cir. 1999) (“[T]he most sensible reading is that the guidelines' reference to ‘prior sentence' means, in this context, a sentence which is prior to the original sentence which was vacated and remanded only for resentencing.”). Shields candidly informed his client that in his professional opinion the objection would be overruled since the law in the Eleventh Circuit did not support their argument. Shields' opinion that an appellate attack on this anticipated ruling by Judge Granade as to the sentencing range would lack merit was enhanced during sentencing when Judge Granade made a specific finding as to the appropriateness of the sentence regardless of the advisory sentencing range: “I find the 71-month sentence is an appropriate sentence in this case whether or not my guideline calculations are correct.” (Doc. 66, at 9.) This statement, consistent with authority in the Supreme Court and the Eleventh Circuit, effectively rendered any appeal of her decision as to the appropriate sentence range meritless. United States v. Keene, 470 F.3d 1347, 1349 (11th Cir. 2006)(“'[t]he Supreme Court and this Court have long recognized that it is not necessary to decide guidelines issues or remand cases for new sentence proceedings where the guidelines error, if any, did not affect the sentence.'” (quoting United States v. Williams, 431 F.3d 767, 775 (11th Cir. 2005) (Carnes, J., concurring))).

         Shields confirmed that a brief discussion was held with his client after resentencing but denied that Montgomery asked him to file an appeal during that conversation. His testimony was that he instructed Montgomery to call him by using the dedicated phone number if he wanted to file an appeal or discuss his appellate options. Montgomery confirmed that he had Shields' phone number and actually used it after resentencing, but prior to the expiration of his time to file an appeal, in order to confirm that Shields had carried out his instructions to file an appeal. He did not reach his attorney on that one occasion and did not leave a message or attempt a second call.

         Shields, a respected member of the Criminal Justice Act Panel of Attorneys established by this Court, testified that conferences with his clients to discuss any desire to appeal a sentence immediately after the sentencing hearings are many times frustrated by the raw emotions of clients when they do not receive an expected sentence and the Marshal's need to immediately place remanded defendants into a holding cell within the courthouse or have them transported to a detention facility offsite.[5] To deal with this problem, he developed a practice to cover the two scenarios that occur after sentencing. First, when a client requests that he file an appeal during their brief time to talk immediately after sentencing, he mechanically follows the expressed wish of his client and files an appeal. He then follows up by engaging in a post-filing discussion of the advantages and disadvantages of taking an appeal. In the second scenario, where there is little time to talk and a specific request to appeal is not made, the client is directed to call using a dedicated phone number if she or he wanted him to file an appeal. At that point, he would be able to thoroughly discuss appellate rights with his client and better determine the informed wishes of his client regarding an appeal. According to Shields, in this case, Montgomery did not ask that he file an appeal during their brief discussion after sentencing and was instructed to call the dedicated number if he wanted to appeal. He also denies that either he or a member of his staff was called by Montgomery to request that an appeal be filed.

         This case also involves the added element that Shields was able to talk with Montgomery's family members who attended the sentencing hearing. The unchallenged testimony of Shields is that he told the members of Montgomery's family that it was his opinion that any appeal of the 71-month sentence would have no merit[6]and that the family should make certain that if Montgomery wanted to appeal, he should call Shields using the dedicated phone number so that a discussion regarding the merits of taking an appeal could occur. Shields said that he did not receive a call from Montgomery even ...


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