Bert Montgomery v. United States
689 F. App'x 388
5th Cir.2017Background
- Bert Douglas Montgomery, a federal prisoner, was convicted by a jury in the District of the Northern Mariana Islands on fraud-related charges and exhausted direct appeal and multiple postconviction motions.
- Montgomery filed a 28 U.S.C. § 2241 habeas petition in the Western District of Texas (El Paso Division), where he is detained, alleging eight claims challenging his convictions and sentence.
- The district court applied the Reyes-Requena standard for § 2241 relief via the § 2255 savings clause and concluded six claims lacked a retroactively applicable Supreme Court decision showing conviction for a nonexistent offense.
- The court found Montgomery’s Santos-based claim had been dismissed by the Ninth Circuit for untimeliness in a successive § 2255 filing, and his Skilling-based claim should have been raised in a successive § 2255 motion but was time-barred.
- The district court concluded Montgomery failed to show § 2255 was inadequate or ineffective, denied the § 2241 petition, and dismissed the case; Montgomery appealed but did not address the Reyes-Requena criteria on appeal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Montgomery can use § 2241 via the § 2255 savings clause to attack his sentence | Montgomery sought to relitigate convictions and raise claims including Santos and Skilling through § 2241 | The government/district court argued he must satisfy Reyes-Requena: show a retroactive Supreme Court decision that he was convicted of a nonexistent offense and that circuit law foreclosed the claim earlier | Court held Montgomery failed to show § 2255 was inadequate or ineffective; § 2241 relief denied |
| Whether Santos-based claim could be considered in § 2241 after Ninth Circuit dismissal of successive § 2255 | Montgomery attempted to pursue Santos claim via § 2241 | The dismissal by Ninth Circuit for untimeliness meant claim was not properly preserved for § 2241 savings relief | Court affirmed that the Santos claim was correctly dismissed and not available via § 2241 |
| Whether Skilling provides a basis for § 2241 relief | Montgomery raised a Skilling claim in his § 2241 petition | The district court argued Skilling should have been raised in a successive § 2255 and was time-barred when § 2241 was filed | Court held Skilling-based relief was not available under § 2241 because it was time-barred as a successive § 2255 |
| Whether pro se appellant preserved arguments on appeal | Montgomery challenged prosecution, sufficiency of evidence, and jurisdiction but did not address Reyes-Requena rationale | Respondent argued failure to brief the § 2241 criteria constitutes abandonment of those claims | Court held Montgomery abandoned any § 2241 entitlement by failing to address the district court’s reasoning and criteria on appeal |
Key Cases Cited
- Reyes-Requena v. United States, 243 F.3d 893 (5th Cir. 2001) (sets criteria for § 2241 relief via the § 2255 savings clause)
- Pack v. Yusuff, 218 F.3d 448 (5th Cir. 2000) (standard of review for § 2241 dismissal is de novo)
- Yohey v. Collins, 985 F.2d 222 (5th Cir. 1993) (pro se appellants must brief arguments to preserve them)
- Brinkmann v. Dallas Cty. Deputy Sheriff Abner, 813 F.2d 744 (5th Cir. 1987) (failure to address merits is treated as not appealing the judgment)
- United States v. Santos, 553 U.S. 507 (2008) (interprets elements of certain federal offenses; raised but untimely in successive § 2255)
- Skilling v. United States, 561 U.S. 358 (2010) (addresses honest-services fraud; claimant attempted to rely on it but was time-barred)