Bert Montgomery v. United States

Case: 16-50222 Document: 00514003972 Page: 1 Date Filed: 05/23/2017
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 16-50222 FILED
Summary Calendar May 23, 2017
Lyle W. Cayce
Clerk
BERT DOUGLAS MONTGOMERY,
Petitioner–Appellant,
v.
UNITED STATES OF AMERICA,
Respondent–Appellee.
Appeal from the United States District Court
for the Western District of Texas
USDC No. 3:15-CV-373
Before REAVLEY, OWEN, and ELROD, Circuit Judges.
PER CURIAM: *
After a jury in the District of the Northern Mariana Islands convicted
Bert Douglas Montgomery, federal prisoner # 00388-005, of various fraud-
related charges, he unsuccessfully sought to vacate his convictions and
sentence on direct appeal and in multiple postconviction motions before the
convicting court and the Ninth Circuit Court of Appeals. Thereafter,
Montgomery filed a 28 U.S.C. § 2241 petition for a writ of habeas corpus in the
El Paso Division of the United States District Court for the Western District of
* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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No. 16-50222
Texas, which encompasses the correctional facility where Montgomery is
presently detained. See 28 U.S.C. § 124(d)(3).
The district court liberally construed Montgomery’s petition to allege
eight separate claims. After setting forth the requirements for obtaining
§ 2241 relief adopted by this court in Reyes-Requena v. United States, 243 F.3d
893, 903-04 (5th Cir. 2001), the district court concluded that six of
Montgomery’s claims failed to cite a retroactively applicable Supreme Court
decision that established that Montgomery was convicted of a nonexistent
offense. The district court then determined that Montgomery’s claim based on
United States v. Santos, 553 U.S. 507 (2008), raised in an application to file a
successive § 2255 motion before the Ninth Circuit, had been correctly
dismissed by that court for failure to timely raise it in his initial § 2255 motion.
The district court also concluded that his final claim under Skilling v. United
States, 561 U.S. 358 (2010), should have been brought in a successive § 2255
motion, but that the time for filing such a motion had already passed when
Montgomery filed his § 2241 petition. Concluding that Montgomery failed to
show the §2255 remedy was inadequate or ineffective, the district court denied
habeas relief and dismissed the case. Montgomery appeals.
We review the dismissal of Montgomery’s § 2241 petition de novo. Pack
v. Yusuff, 218 F.3d 448, 451 (5th Cir. 2000). A § 2241 petition that attacks
custody resulting from a federally imposed sentence may be entertained under
the savings clause of § 2255 if the petitioner establishes that the remedy
provided under § 2255 is “inadequate or ineffective” to test the legality of his
detention. § 2255(e); see Reyes-Requena 243 F.3d at 901. To make the required
showing, Montgomery must establish that his claims are based on a
retroactively applicable Supreme Court decision that establishes that he may
have been convicted of a nonexistent offense, and that his claims were
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No. 16-50222
foreclosed by circuit law at the time the claim should have been raised in his
trial, direct appeal, or first § 2255 motion. See id. at 904.
On appeal, Montgomery fails to address the district court’s reasons for
denying his claims and dismissing his § 2241 petition. Moreover, he makes no
effort to demonstrate that he satisfies the criteria for § 2241 relief set forth in
Reyes-Requena; instead, he attacks the integrity of the prosecution and trial,
the sufficiency of the evidence to sustain his convictions, and the jurisdiction
of the trial court. Accordingly, he has abandoned any claim that he is entitled
to § 2241 relief. Yohey v. Collins, 985 F.2d 222, 224-25 (5th Cir. 1993) (stating
that pro se appellants must brief arguments in order to preserve them);
Brinkmann v. Dallas Cty. Deputy Sheriff Abner, 813 F.2d 744, 748 (5th Cir.
1987) (holding that an appellant’s failure to address the merits of a district
court’s decision or to identify any error in its legal analysis was “the same as if
he had not appealed that judgment”).
The judgment of the district court is AFFIRMED. All outstanding
motions are DENIED.
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