Montgomery, Shelton Wade

Opinion

WR-83,375-01 COURT OF CRIMINAL APPEALS AUSTIN, TEXAS Transmitted 11/17/2015 3:59:57 PM Accepted 11/17/2015 4:11:03 PM NO. WR-83,375-01 ABEL ACOSTA CLERK WRIT NO. 4762-A RECEIVED COURT OF CRIMINAL APPEALS EX PARTE § IN THE TEXAS11/17/2015 § ABEL ACOSTA, CLERK

§ COURT OF § SHELTON MONTGOMERY § CRIMINAL APPEALS

OBJECTIONS TO THE DISTRICT COURT’S FINDINGS OF FACT AND CONCLUSIONS OF LAW

COMES NOW Shelton Wade Montgomery, Applicant, and files

these objections to the district court’s order recommending relief be de-

nied, filed August 31, 2015. In support thereof, Montgomery would show

the following:

I. Not all decisions are strategic

In rejecting Montgomery’s application for a writ of habeas corpus,

in which he alleged his trial attorney rendered ineffective assistance of

by not presenting available character and expert testimony, the district

court simply adopted trial counsel’s affirmation that those failures were

in fact strategy decisions. To be sure, there is a strong presumption that

trial counsel’s conduct fell within the wide range of reasonable profes-

sional assistance. Strickland, 466 U.S. at 689). The Supreme Court has

made clear that “strategic choices made after thorough investigation of

1 law and facts relevant to plausible options are virtually unchallengea-

ble.” Id. at 690-91. But when choices are made after less than complete

investigation, they are reasonable only “to the extent that reasonable pro-

fessional judgments support the limitations on investigation.” Id. at 690-

91. And decisions made out of inattention are not strategic and afforded

no deference at all. See Wiggins v. Smith, 539 U.S. 510, 526 (2003) (“The

record of the actual sentencing proceedings underscores the unreasona-

bleness of counsel’s conduct by suggesting that their failure to investigate

thoroughly resulted from inattention, not reasoned strategic judgment.”);

Kimmelman v. Morrison, 477 U.S. 365, 385-86 (1986) (decision based on

“mistaken beliefs” was not based on “strategic considerations”); Rompilla

v. Beard, 545 U.S. 374 (2005) (defense counsel’s failure to examine state’s

file on defendant’s prior convictions “was the result of inattention, not

reasoned strategic judgment”). Justice Stevens, dissenting in Wood, sum-

marized the principle:

A decision cannot be fairly characterized as “strategic” unless it is a conscious choice between two legitimate and rational alternatives. It must be borne of deliberation and not happen- stance, inattention, or neglect. Moreover, a cursory investiga- tion does not automatically justify a tactical decision with re- spect to sentencing strategy. Although we afford deference to counsel’s strategic decisions, for this deference to apply there

2 must be some evidence that the decision was just that: strate- gic.

Id. at 307-08 (Stevens, J., dissenting) (internal quotations and citations

omitted).

That was the crucial issue in this case. Not whether Montgomery’s

counsel’s decision not to present available character and expert testi-

mony “itself was a reasonable exercise of professional judgment under

Strickland”—that “is a different question.” Id. at 304. Instead, whether

counsel made a strategic decision at all.

The Supreme Court’s fullest examination of that issue was in Wig-

gins. In that case, Wiggins argued in Maryland state court “that his at-

torneys’ failure to investigate his background and present mitigating ev-

idence of his unfortunate life history at his capital sentencing proceed-

ings violated his Sixth Amendment right to counsel.” Wiggins, 539 U.S.

at 514. The Maryland Court of Appeals affirmed the trial court’s denial

of relief, though, “concluding that trial counsel had made ‘a deliberate,

tactical decision to concentrate their effort at convincing the jury’ that

appellant was not directly responsible for the murder.” Id. at 518. Upon

granting certiorari, the Court noted that in that case, like in Strickland,

counsel “attempt[ed] to justify their limited investigation as reflecting a

3 tactical judgment.” Id at 521. Pointing to Strickland and Williams v. Tay-

lor, 529 U.S. 362 (2000), the Court then determined that its “principal

concern in deciding whether [the attorneys] exercised reasonable profes-

sional judgment [was] not whether [they] should have presented a miti-

gation case.” Wiggins, 539 U.S. at 522-23. And understandably so—“[t]o

avoid the inevitable temptation to evaluate a lawyer’s performance

through the distorting lens of hindsight, Strickland establishes a defer-

ential presumption that strategic judgments made by defense counsel are

reasonable.” Mosley v. Atchison, 689 F.3d 838, 848 (7th Cir. 2012) (citing

Strickland, 466 U.S. at 690–91). “Rather, [the Court] focus[ed] on

whether the investigation supporting counsel’s decision not to introduce

mitigating evidence of Wiggins’ background was itself reasonable.” Wig-

gins, 539 U.S. at 523 (emphasis added).

As to that question, “Strickland does not establish that a cursory

investigation automatically justifies a tactical decision with respect to

sentencing strategy. Rather, a reviewing court must consider the reason-

ableness of the investigation said to support that strategy.” Id. at 527

(citing Strickland, 466 U.S., at 691). In making such an assessment, the

court was required to “conduct an objective review of their performance,

4 measured for ‘reasonableness under prevailing professional norms,

which includes a context-dependent consideration of the challenged con-

duct as seen ‘from counsel’s perspective at the time.’” Id. at 523 (citing

Strickland, 466 U.S. at 689). The Supreme Court then concluded that

counsel’s investigation was unreasonably incomplete due to counsel’s “in-

attention,” and that, accordingly, their decision not to present a mitiga-

tion case was not “strategic” and thus owed no deference. Id. at 524-26.

And the Court held that the Maryland Court of Appeals’s failure to ex-

amine as much—instead “merely assum[ing] that the investigation was

adequate”—was “objectively unreasonable.” Id. at 527-28. “As a result,

the [Maryland] court’s subsequent deference to counsel’s strategic deci-

sion… despite the fact that counsel based this alleged choice on what we

have made clear was an unreasonable investigation, was also objectively

reasonable.” Id. at 528 (citing Strickland, 466 U.S. at 690-91 (“strategic

choices made after less than complete investigation are reasonable pre-

cisely to the extent that reasonable professional judgments support the

limitations on investigation.”)).

In light of the Supreme Court’s pronouncements, seemingly every

federal court to consider the question has, unsurprisingly, recognized

5 that a “strategic decision” is only as sound as the factual basis upon which

it is made. See, e.g., Pavel v. Hollins, 261 F.3d 210, 218 (2nd Cir. 2001)

(where a habeas petitioner establishes that counsel’s choices were not the

result of a “conscious, reasonably informed decision made by an attorney

with an eye to benefitting his client,” courts may question such choices);

Moore v. Johnson, 194 F.3d 586, 610 (5th Cir. 1999) (holding that a par-

ticular decision could not be labeled “strategic” where, inter alia, the at-

torney had “no idea” why the decision had been taken); Loyd v. Whitley,

977 F.2d 149, 158 & n. 22 (5th Cir. 1992) (distinguishing between “stra-

tegic judgment calls” and “plain omissions”); United States v. Gray, 878

F.2d 702, 712 (3d Cir. 1989) (“counsel’s behavior was not colorably based

on tactical considerations but merely upon a lack of diligence”); Smith v.

Stewart, 189 F.3d 1004, 1010 (9th Cir. 1999) (holding that an attorney’s

decision not to pursue certain evidence was not “strategic” where, inter

alia, it was based on a lack of understanding of what constituted such

evidence); Williams v. Washington, 59 F.3d 673, 680 (7th Cir. 1995)

(“[b]ecause of his ignorance, counsel was… unable… to make any strate-

gic decision[ ]”); Battenfield v. Gibson, 236 F.3d 1215, 1229 (10th Cir.

6 2001) (“counsel made no strategic decision at all because [he] was igno-

rant of various other… strategies he could have employed.”); White v.

Roper, 416 F.3d 728, 732 (8th Cir. 2005) (“presumption of sound trial

strategy… founders on the rocks of ignorance”); United States v. Bur-

roughs, 613 F.3d 233, 238 (D.C. Cir. 2010) (if their failure to seek funding

under the CJA “reflected ignorance of the law, rather than a reasonable

strategic decision… then the [attorneys’] performance must be deemed

deficient.”); Bean v. Calderon, 163 F.3d 1073, 1079 (9th Cir. 1998) (noting

that a decision cannot be characterized as “strategic” where it was a re-

sult only of “confusion”). Texas courts, too, have recognized that igno-

rance provides no basis upon which to make a strategic decision. See, e.g.,

Ex Parte Briggs, 187 S.W.3d 458, 467 (Tex. Crim. App. 2005) (where coun-

sel’s decision not to fully investigate or consult with experts was due to

the appellant’s failure to pay an additional fee, counsel’s “was not a ‘stra-

tegic’ decision”); Wright v. State, 223 S.W.3d 36, 42-43 (Tex. App.—Hou-

ston [1st Dist.] 2006, pet. ref’d) (trial counsel was ineffective in deciding

not to retain an expert because he “had no legitimate strategy” in doing

so in light of his “ignorance of the literature” indicating “an expert might

be of assistance”); Ex parte Bowman, 01-13-01045-CR, 2014 WL 2535326

7 (Tex. App.—Houston [1st] 2014) (trial counsel’s defensive strategy was

not owed deference where it “was not informed by a reasonable investi-

gation”). In Montgomery’s case, though, the district court rejected his ap-

plication for writ of habeas corpus simply because his counsel character-

ized his failure as a strategic decision. The court blindly accepted coun-

sel’s “strategic decision” without any examination of the basis upon which

it was made.

Indeed, this case is much like Wiggins. In that case, like this one

(and Strickland), counsel contended that their complained-of decision

was a matter of trial strategy. Wiggins, 539 U.S. at 517. The Supreme

Court examined that contention, though, and determined that counsel’s

decision not to present a mitigation case was not strategic at all, because

they made it while unaware of the mitigation evidence available to them.

Montgomery’s case is just the same. His counsel contended his fail-

ure to call additional witnesses at punishment was a strategic decision,

while Montgomery contended his counsel made that decision while igno-

rant of what an expert might have testified. And yet here, the district

court determined counsel’s decision was due deference simply because he

announced it was strategic. “The consequences of inattention rather than

8 reasoned strategic decisions are not entitled to the presumption of rea-

sonableness.” Mosley, 689 F.3d at 848 (citing Rompilla, 545 U.S. at 395–

96; Wiggins, 539 U.S. at 533–34). The district court’s blind acceptance of

counsel’s justification was wrong, and this Court should remand this case

to that court to consider whether counsel’s failure to investigate potential

witnesses was reasonable.

II. This Court should require the issue be resolved via a hear- ing, not on affidavits alone

It is inappropriate to resolve controverted facts without an eviden-

tiary hearing where witnesses are subject to cross-examination. In Ex

parte Byars, 176 S.W.3d 841 (Tex. Crim. App. 2005), Presiding Judge Kel-

ler noted that the most effective way of determining the reliability of wit-

ness testimony is through the “crucible of cross-examination.” Id. at 842

(concurring opinion). Similarly, in Charles v. State, 146 S.W.3d 204 (Tex.

Crim. App. 2004), this Court stated:

Affidavits . . . are widely and appropriately used in criminal and civil proceedings to determine if there are material dis- puted facts and to define exactly which facts are disputed. They are not always well-suited for resolving disputed facts.

Id. at 210 (footnotes omitted).

9 Accordingly, in this case, upon remand the district should not de-

cide whether counsel’s failure was reasonable solely based on affidavits.

This is an inappropriate way to make a credibility determination. Gallego

v. United States, 174 F.3d 1196 (11th Cir. 1999), is particularly instruc-

tive on this issue. In Gallego, the court stated:

It is perfectly legitimate for the district court to find, based on all the evidence in the record, that a defendant’s testimony about his participation in a drug scheme is not credible. The magistrate judge here, however, based the decision on the fact that the defendant’s allegations were unsubstantiated and in- correctly found as a matter of law that defendant could not carry his burden without presenting some evidence in addi- tion to his own word, which is contrary to that of counsel’s. The magistrate says nothing about the internal consistency of the defendant’s testimony, or his candor or demeanor on the stand. Indeed, the magistrate does not even state simply why the defendant’s lawyer is the more credible witness in this case. There is nothing in the report to indicate the magistrate weighed defendant’s credibility. Compare United States v. Camacho, 49 F.3d 349 (11th Cir. 1994) (court made specific findings of fact after an evidentiary hearing regarding defend- ant’s credibility), cert. denied, 514 U.S. 1090, 115 S.Ct. 1810, 131 L.Ed.2d 735 (1995). The fact that defendant’s testimony is uncorroborated is not enough standing alone to support a credibility finding. Counsel’s testimony was also unsubstanti- ated by other evidence.

While we appreciate the concerns enunciated in Underwood, we cannot adopt a per se "credit counsel in case of conflict rule," which allows that in any case where the issue comes down to the "bare bones testimony" of the defendant against

10 the contradictory testimony of counsel, defendant is going to lose every time. We therefore remand for a new evidentiary hearing. Because of the intervening death of District Judge C. Clyde Atkins, the case will necessarily come before a different district judge. We suggest that in view of the nature of the case, if the matter is referred to a magistrate, it be sent to a different magistrate judge.

Id. at 1198-99.

Indeed, the federal courts have routinely favored live witness testi-

mony. This is because an evidentiary hearing allows the trier of fact to

observe the witnesses and judge their credibility. See, Webster v. Offshore

Food Service, Inc., 434 F.2d 1191, 1193 (5th Cir. 1970) (trier of fact is

entitled to weigh the credibility of witnesses and value his testimony in

light of his demeanor on the stand); First National Bank v. Martin, 963

F.2d 809, 814 (5th Cir. 1992) (bankruptcy judge had occasion to observe

Martin and listen to his testimony, which necessarily includes the oppor-

tunity to study any changes in both his demeanor and tone of voice); Port

Arthur Towing Company v. John W. Towing, Inc., 42 F.3d 312, 318 (5th

Cir. 1995) (witness’ manner and demeanor on the witness stand weighed

against credibility); United States v. Thomas, 12 F.3d 1350 (5th Cir. 1994)

(appellate court must give due deference to the credibility determinations

11 of the district court who has the opportunity to observe the demeanor of

the witnesses).

Valid judgments about credibility cannot be made from a review of

a paper record alone. Thus, concurrent with a remand order, this Court

should order a live evidentiary hearing. See, e.g., Perillo v. Johnson, 79

F.3d 441, 444 (5th Cir. 1996) (petitioner entitled to discovery when there

is factual dispute which, if resolved in petitioner’s favor, would entitle

petitioner to relief, and the State has not afforded petitioner a full and

fair evidentiary hearing).

III. Conclusion

In response to Montgomery’s allegations that his trial attorney

failed to render effective assistance of counsel by not presenting available

character and expert testimony, the district court simply denied the writ

without meaningful consideration. The court blindly accepted counsel’s

attestation that his failures were strategic. Because this analysis was in-

complete, Montgomery objects to the district court’s resulting recommen-

dation and requests this Court to remand this case to that court to con-

duct a hearing on the issue of whether counsel’s failure to investigate

potential witnesses was reasonable.

12 Prayer

WHEREFORE, PREMISES CONSIDERED, Applicant prays that

this court will remand this case for a hearing wherein the live testimony

of the witnesses may be presented.

Respectfully submitted,

/s/ Bruce E. Anton BRUCE E. ANTON State Bar No. 01274700

SORRELS, UDASHEN & ANTON 2311 Cedar Springs Road, Suite 250 Dallas, Texas 75201 214-468-8100 214-468-8104 - fax

Attorney for Applicant Montgomery

13 CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the above and fore- going Objections to Findings of Fact and Conclusions of Law was mailed United States Mail, Proper Postage Affixed, to Luke M. Inman, District Attorney, 100th Judicial District Attorney's Office, 800 West Avenue, Box 1, Wellington, Texas 79095 on November 17, 2015.

/s/ Bruce E. Anton BRUCE E. ANTON