United States District Court, D. Montana, Billings Division
ORDER ADOPTING FINDINGS AND RECOMMENDATIONS OF UNITED
STATES MAGISTRATE JUDGE AND DISMISSING PETITION
P. WATTERS UNITED STATES DISTRICT JUDGE
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.)
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.)
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.)
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 ¶
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.)
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.)
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.)
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
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). He believes the statute's language
creates a liberty interest enforceable under the Due Process
Torres's Nevada Domestic Violence Convictions
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 ...