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Torres v. McGee

United States District Court, D. Montana, Billings Division

September 4, 2019

FRANCO LEO TORRES, Petitioner,
v.
DEVON MCGEE; ATTORNEY GENERAL OF THE STATE OF MONTANA, Respondents.

          ORDER AND FINDINGS AND RECOMMENDATIONS OF UNITED STATES MAGISTRATE JUDGE

          Timothy J. Cavan, United States Magistrate Judge.

         This case comes before the Court on Petitioner Franco Leo Torres' application for writ of habeas corpus under 28 U.S.C. § 2254. Torres is a state prisoner proceeding pro se. As explained more fully below, Mr. Torres' petition should be denied because two of his claims are not cognizable in federal habeas, and his third claim does not survive deferential review.

         I. Motion to Appoint Counsel

         Torres requested that counsel be appointed to represent him. See, (Doc. 1 at 11.) Counsel must be appointed "when the case is so complex that due process violations will occur absent the presence of counsel," Bonin v. Vasquez, 999 F.2d 425, 428-29 (9th Cir. 1993) (discussing Chaney v. Lewis, 801 F.2d 1191, 1196 (9th Cir. 1986) (per curiam)), or when an evidentiary hearing is required, Rule 8(c), Rules Governing § 2254 Cases. Counsel may be appointed at any stage of the proceedings if "the interests of justice so require." 18 U.S.C. § 3006A(a)(2)(B). Under § 3006A, the Court must consider the likelihood of success on the merits, the complexity of the legal issues involved, and the petitioner's ability to articulate his claims pro se. Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 1983) (per curiam). Torres' case is not so complex that his right to due process will be violated if counsel is not appointed. The request for counsel will be denied.

         II. Motion to Expedite Mr. Torres filed a Motion to Expedite these proceedings. As Mr. Torres' claims are all addressed herein, the motion will be denied as moot.

         III. Background

         Following a jury trial in Montana's Thirteenth Judicial District, Yellowstone County, Torres was found guilty of felony Partner Family Member Assault. (Doc. 1 at 2-3.) On February 17, 2015, Torres entered into a sentencing agreement with the state, pursuant to Mont. Code Ann. § 46-12-211(1)(b), [1] wherein he agreed to be sentenced as a Persistent Felony Offender (PFO) to five years with the Montana Department of Corrections (DOC) and a recommendation that he complete the Boot Camp program. In exchange for his agreement, Torres agreed to waive his right to appeal and the ability to challenge the validity of his prior convictions out of Nevada. See, Id. at 3; see also, Torres v. State, 2018 MT 79N, ¶3.[2] That same day, Torres was sentenced in accordance with the terms contemplated in the sentencing agreement. Torres did not file a direct appeal. (Doc. 1 at 3, ¶6.)

         a. Postconviction Proceedings

         On February 8, 2016, Torres filed a petition for postconviction relief. Torres argued that both his trial attorney, Casey Moore, and sentencing attorney, Fred Snodgrass, provided ineffective assistance of counsel (IAC) in various ways. He also contended that the delay of time between the trial and sentencing violated his right to due process. The district court considered the merits of Torres' due process claim and determined Torres failed to demonstrate prejudice; thus, the record-based claim could not proceed in postconviction.[3] The district court also noted Torres sought to amend his original petition and include a claim challenging Montana's statutory scheme of initiating felony charges without a grand jury indictment or a determination of probable cause following a preliminary hearing. The court considered this claim and determined it lacked merit. Id. at 7-8. The district court ordered the State to respond to Torres' IAC-related claims. Id. at 6-7; 8.

         Following consideration of the State's response, the district court entered an order noting it was required to determine if Torres had identified all facts supporting relief with evidence establishing the existence of those facts. Torres v. State, DV-16-0192, Or. Dismissing Pet., at 3, (filed Sept. 23, 2016) (citing MCA § 46-21 -104(1)(c)).[4] The court found that while Torres provided several filings with exhibits attached, none tended to support his allegations. The documents provided by Torres, which included copies of text messages and an online report from the local newspaper, were not truly evidence, but rather were only connected to Torres' claims based upon conjecture and upon Torres' own conclusory allegations. Id. at 3. Because Torres failed to meet the statutory threshold for the court to consider the merits of his claims, Torres failed to present legally and factually sufficient claims and his petition was dismissed. Id. at 3-4.

         b. Postconviction Appellate Proceedings

         Torres timely appealed the denial of his postconviction petition. (Doc. 1 at 4, ¶ 10).[5] Torres' opening brief raised fourteen separate issues. See generally, Torres v. State, DA 16-0693, Br. Appellant at 6-43 (filed Feb. 6, 2017). Torres asked the Court to review his claims under the Plain Error Doctrine.[6] Id. at 24-25.

         In response, the State argued the only issue properly before the Court was whether or not the district court acted within its discretion when it dismissed Torres' petition for postconviction relief, as a matter of law, based upon Torres' failure to state a claim for relief. The State asserted the district court acted properly. See, Torres v. State, DA 16-0693, Br. Appellee, at 5-12 (filed Oct. 5, 2017).

         The Montana Supreme Court determined the district court correctly denied and dismissed Torres' petition. See, Torres v. State, 2018 MT 79N. Regarding Torres' assertion that the district court erroneously denied him a hearing on his IAC-related claims, the Court found Torres failed to demonstrate a hearing was necessary to develop non-record-based facts or to resolve genuine issues of material fact. Id. at ¶7. Additionally, the court noted a petitioner has a heavy burden of establishing counsel was constitutionally ineffective by establishing both prongs of the Strickland test: (1) counsel's performance was deficient, and (2) the deficient performance resulted in actual prejudice to the petitioner. Id. at ¶9, citing Strickland v. Washington, 466 U.S. at 668, 687 (1984) (additional citations omitted). Whether viewing Torres' claims individually or cumulatively, the Court determined they "are essentially no more than assertions as to various actions or inactions by counsel coupled with unsupported assertions that the actions or inactions were deficient and prejudicial." Id. at ¶ 11.

         The Court thus held Torres failed to establish either prong of Strickland. The Court found Torres' claims were "completely devoid" of any showing that counsel's performance fell below an objective standard of reasonableness under the totality of the circumstances and in consideration of prevailing professional norms. Id. Moreover, the IAC claims lacked "any supported, non-speculative showing of a reasonably probability that the outcome would have been different had counsel performed as Torres asserts they should have." Id. The Court determined Torres failed to make an affirmative factual and legal showing sufficient to overcome the presumption that he received constitutionally effective counsel.

         Upon review of the record, the Court found Torres failed to show that the district court dismissed his petition based upon a clearly erroneous finding of material fact, an erroneous conclusion of law, or an abuse of discretion. Id. at ¶12. Thus, the lower court properly denied and dismissed Torres' postconviction petition.

         c. Lewis and Clark County PFMA proceedings

         Prior to his 2015 Yellowstone County conviction, Torres pled guilty to and was sentenced for felony PFMA in 2008 in Lewis and Clark County.[7]

         On August 14, 2017, Torres filed a petition for postconviction relief challenging the 2008 judgment. Torres alleged the state did not have the correct number of predicate offenses, because the Nevada domestic violence statue was not "similar" to the Montana PFMA statue for stacking purposes. See, Torres v. State, DA 18-0286, Appellant's Br. at 2-3 (filed Aug. 27, 2018). The district court held the Nevada statue was sufficiently similar to the Montana statute, and accordingly, the prior convictions under Nevada law qualified for purposes of stacking in Montana. Id. at 3. The state district court dismissed Torres' petition.

         Torres appealed the decision, arguing the district court "abridged his due process rights" when it used the prior Nevada domestic violence convictions to charge his 2008 PFMA as a felony. See, Torres v. State, 2019 MT 32N, Or. At 4 (Mont, filed Feb. 5, 2019).[8] The Montana Supreme Court found Torres' claim lacked merit. The Court also noted Torres' claim was untimely and found the untimeliness was not excused by newly discovered evidence.

Torres has not presented newly discovered evidence showing he did not assault M.R. Rather, his argument on appeal is that his prior Nevada convictions were improperly stacked. Even if Torres' Nevada convictions were unlawfully stacked for Montana sentencing purposes, it would not prove his innocence of the assault of M.R., a condition for the [newly discovered evidence] exception to apply. Further, assuming Torres presented evidence demonstrating his actual innocence of felony PFMA, he has nevertheless been aware of the stacking issue for more than one year. Torres acknowledged the stacking issue when he pleaded guilty in 2008 and presented this exact argument when he appealed to this Court in 2016.

Id. at 4-5. The Court determined the district court properly denied Torres relief. Id. at 6.

         III. Claims

         In his pending petition, Torres advances three purported constitutional violations. First, Torres alleges the state committed a due process violation and reversible error when it "qualified two irrelevant out-of-state Nevada domestic violence convictions for stacking purposes to enhance the current conviction and sentence to a felony." (Doc. 1 at 4, ¶ 13(A)). Because all parties simply accepted the information contained in Torres' charging documents that the out-of-state convictions qualified under Montana law as prior convictions, Torres asserts his underlying case was improperly tried as a felony. Id.

         Torres next claims his right to due process was violated during sentencing when the prosecution and district court allowed him to enter into a post-trial sentencing agreement, in which he waived his right to appeal. (Doc. 1 at 5, ¶ 13(B)). Torres claims Montana law does not allow for such post-trial negotiations, and that he unsuccessfully attempted to withdraw from the agreement when he learned his case was incorrectly tried as a felony. Id.

         Finally, Torres argues he was denied effective assistance of counsel when both his trial and sentencing attorney failed to challenge the use of the prior Nevada convictions for stacking purposes. Id. at 7, ¶13(C). Torres contends the Nevada statute is not similar to the Montana statute, and his attorneys failed to provide reasonable assistance when they neglected to challenge the use of these convictions for stacking purposes. Torres maintains he suffered prejudice in the form of his enhanced felony sentence. Id.

         Torres asks this Court to permit him to withdraw from the sentencing agreement and remand the matter to the state court for consideration of his due process claim. Id. at 9, ¶ 16. Additionally, Torres requests this Court order his release from custody and relieve him of his obligation to register as a violent offender. Id.

         IV. ...


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