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Montgomery v. Sisto

February 10, 2009


The opinion of the court was delivered by: James K. Singleton, Jr. United States District Judge


Petitioner Brian Keith Montgomery, a state prisoner proceeding pro se, has filed a petition for relief under 28 U.S.C. 2254. Montgomery is currently in the Custody of the California Department of Corrections and Rehabilitation (CDCR) incarcerated in the California State Prison, Solano. Respondent has answered the petition and Montgomery has filed his traverse.


Montgomery is currently serving an indeterminate sentence of 15 years to life upon his conviction for attempted premeditated murder.*fn1

Montgomery was issued a Rules Violation Report (RVR) charging a violation of California Code of Regulations, title 15, § 3006(c)(18), possession of contraband, to wit: tobacco. After a hearing in March 2007 before a Special Hearing Officer (SHO), Montgomery was found guilty. Montgomery exhausted his administrative remedies and filed a habeas corpus petition in the Solano County Superior Court, which denied his petition in a reasoned decision. Subsequent petitions were presented to the California Court of Appeal, First Appellate District, and the California Supreme Court. The California Court of Appeal and California Supreme Court summarily denied Montgomery's petitions without opinion or citation to authority on December 27, 2007, and February 15, 2008, respectively. Montgomery timely filed his petition for relief on February 20, 2008.


In his petition Montgomery raises two grounds for relief, alleging his due process rights were violated because: (1) there was no evidence that he possessed tobacco and (2) the offense does not rise to the level of a serious rules violation.

Respondent does not assert any affirmative defenses.*fn2


Because Montgomery filed his petition after April 24, 1996, it is governed by the standard of review set forth in the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), 28 U.S.C. § 2254(d). Consequently, this Court cannot grant relief unless the decision of the California Court of Appeal was "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States" at the time the state court renders its decision or "was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding."*fn3 The Supreme Court has explained that "clearly established Federal law" in § 2254(d)(1) "refers to the holdings, as opposed to the dicta, of [the Supreme Court] as of the time of the relevant state-court decision."*fn4

Thus, where holdings of the Supreme Court regarding the issue presented on habeas review are lacking, "it cannot be said that the state court 'unreasonabl[y] appli[ed] clearly established Federal law.'"*fn5 When a claim falls under the "unreasonable application" prong, a state court's application of the Supreme Court precedent must be "objectively unreasonable," "not just incorrect or erroneous."*fn6 The Supreme Court has made clear that the objectively unreasonable standard is a substantially higher threshold than simply believing the state court determination was incorrect.*fn7 Finally, in a federal habeas proceeding, the standard under which this Court must assess the prejudicial impact of constitutional error in a state-court criminal trial is whether the error had a substantial and injurious effect or influence in determining the jury's verdict.*fn8

In applying this standard, this Court reviews the last reasoned decision by the state court,*fn9 which in this case was that of the California Superior Court. Under AEDPA, the state court's findings of fact are presumed to be correct unless the petitioner rebuts this presumption by clear and convincing evidence.*fn10

To the extent that Montgomery raises issues of the proper application of State law, they are beyond the purview of this Court in a federal habeas proceeding. It is a fundamental precept of dual federalism that the States possess primary authority for defining and enforcing the criminal law.*fn11 A petitioner may not transform a state-law issue into a federal one by simply asserting a violation of due process.*fn12 Nor may a federal court issue a habeas writ based upon a perceived error of ...

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