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Torres v. McGee

United States District Court, D. Montana, Billings Division

November 8, 2019

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

          ORDER ADOPTING FINDINGS AND RECOMMENDATIONS OF UNITED STATES MAGISTRATE JUDGE AND DISMISSING PETITION

          SUSAN P. WATTERS UNITED STATES DISTRICT JUDGE

         Petitioner Franco Leo Torres, appearing pro se, seeks habeas corpus relief under 28 U.S.C. § 2254. Before the Court are the United States Magistrate Judge's Findings and Recommendations. (Doc. 5.) The Magistrate recommended the Court dismiss Torres's Petition for Writ of Habeas Corpus (Doc. 1) because his due process claims are not cognizable in federal habeas and his ineffective assistance of counsel claim does not survive deferential review. (Doc. 5 at 23.) The Magistrate further recommended the Court deny Torres a certificate of appealability. (Id.) Torres subsequently filed objections to the Magistrate's Findings and Recommendations. (Doc. 6.)

         I. Background

         The State charged Torres with felony partner-family member assault (PFMA) under Mont. Code Ann. § 45-5-206 in the Thirteenth Judicial District Court, Yellowstone County. (Doc. 1 at 2.) Torres had two prior Nevada domestic violence convictions, so the State charged him with his third or subsequent conviction for PFMA, which substantially increased his potential penalties. (Id. at 4.) Torres was convicted following a trial. (Id. at 2-3.) After trial, Torres entered into a sentencing agreement with the State and agreed to be sentenced as a persistent felony offender to five years with the Montana Department of Corrections. The district court sentenced Torres accordingly. Torres did not file an appeal. (Id. at 3.)

         Torres filed a petition for postconviction relief with the state district court in February 2016. (Doc. 5-2 at 1.) He alleged various claims for ineffective assistance of counsel (IAC) and prejudicial delay between his trial and sentencing. x (Doc. 5-1 at 2-3.) The district court determined Torres failed to submit sufficient evidence supporting his IAC claims, and the court primarily attributed the delay between trial and sentencing to Torres. (Id. at 3; Doc. 5-2 at 3.) Because Torres failed to meet the statutory threshold for the court to consider the merits of his claims, the court dismissed his petition. (Doc. 5-2 at 3.)

         Torres appealed the dismissal to the Montana Supreme Court. Torres v. State, 2018 MT 79N. In a memorandum opinion, the Court affirmed the dismissal. It found, "Torres' I AC claims 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. Moreover, Torres failed to show the District Court dismissed his petition based on "a clearly erroneous finding of material fact, an erroneous conclusion of law, or abuse of discretion." Id. at ¶ 12.

         Torres subsequently filed the pending petition for writ of habeas corpus. (Doc. 1.) First, Torres alleged the State violated his due process rights 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." (Id. at 4.) Second, he claimed the district court violated his due process rights when it allowed him to enter into a post-trial sentencing agreement in which he waived his right to appeal. (Id. at 5.) Third, he alleged ineffective assistance of counsel because both his trial attorney and sentencing attorney failed to challenge the use of his prior Nevada convictions for stacking purposes. (Id. at 7.)

         In his Findings and Recommendations, the Magistrate determined that whether Torres's Nevada domestic violence convictions could qualify for stacking purposes under Montana's PFMA statute was a matter of state law-an improper basis for federal habeas relief. (Doc. 5 at 11). Similarly, the Magistrate determined Torres's due process claims relating to his post-trial sentencing agreement were rooted in state law and not cognizable under federal habeas relief. (Id. at 14.)

         Finally, the Magistrate noted the doubly deferential review of I AC claims for federal habeas relief. Strickland v. Washington, 466 U.S. 668 (1984) requires state courts to give deference to counsel's decisions, and the Antiterrorism and Effective Death Penalty Act of 1996, in turn, requires federal courts to defer to state court decisions on the merits. (Doc. 5 at 16 (citing Harrington v. Richter, 562 U.S. 86, 105 (2011).) Under this standard, the Magistrate found Torres's I AC claims did not survive doubly deferential review. (Id. at 20.) Having rejected each of Torres's arguments, the Magistrate recommended this Court dismiss his petition. (Id. at 23.)

         II. Discussion

         Mont. Code Ann. § 45-5-206(3) imposes enhanced penalties for PFMA where a defendant has one or more prior PFMA convictions. Its definition of conviction includes "a conviction for a violation of a statute similar to this section in another state." Section 45-5-206(3)(b)(iii).

         Torres's central objection is that he "was denied a state-created liberty interest that is provided for in Mont. Code Ann. § 45-5-206(3)(b)(iii)." He seeks remand under his due process rights so that the Montana Supreme Court may resolve whether the Nevada statute for domestic violence is sufficiently similar to Montana's PFMA statute to qualify as a conviction for stacking purposes under § 45-5- 206(3)(b)(iii).[1] He believes the statute's language creates a liberty interest enforceable under the Due Process Clause.

         A. Torres's Nevada Domestic Violence Convictions

         Whether an out-of-state domestic violence conviction is similar enough to Montana's PFMA statute to qualify for stacking purposes is a matter of state law; "it is only noncompliance with federal law that renders a State's criminal judgment susceptible to collateral attack in the federal courts." Wilson v. Corcoran,562 U.S. 1, 5 (2010) (emphasis in original). Habeas relief is available to a state prisoner only on the ground that he "is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a); Wilson, 562 U.S. at 5 ("[W]e have repeatedly held that federal habeas corpus relief does not lie for errors of state law." (internal citations and quotations omitted)). An alleged error in the application of state sentencing laws generally is not an error subject to habeas relief. See Miller v. Vasquez,868 F.2d 1116, 1119 ...


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