United States District Court, D. Montana, Billings Division
ORDER AND FINDINGS AND RECOMMENDATIONS OF UNITED
STATES MAGISTRATE JUDGE
Timothy J. Cavan, United States Magistrate Judge.
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
Motion to Appoint Counsel
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.
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.
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),
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. 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.)
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. 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.
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)). 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.
Postconviction Appellate Proceedings
timely appealed the denial of his postconviction petition.
(Doc. 1 at 4, ¶ 10). 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. Id. at 24-25.
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.
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
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.
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.
Lewis and Clark County PFMA proceedings
to his 2015 Yellowstone County conviction, Torres pled guilty
to and was sentenced for felony PFMA in 2008 in Lewis and
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.
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). 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.
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
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.
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
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.