                                                                                              07/12/2016


                                         DA 16-0021
                                                                                          Case Number: DA 16-0021


           IN THE SUPREME COURT OF THE STATE OF MONTANA

                                       2016 MT 169
                                    _________________


MATTHEW MONTGOMERY,

             Petitioner and Appellant,
                                                                   OPINION
                                                                     AND
      v.
                                                                    ORDER
STATE OF MONTANA,

             Respondent and Appellee.
                                _________________

¶1     Appearing as a self-represented litigant, Matthew Montgomery appeals a

November 10, 2015 Ravalli County District Court’s summary denial of his motion to

vacate his conviction and dismiss the charges. We affirm.

                  PROCEDURAL AND FACTUAL BACKGROUND

¶2     This Court is familiar with Montgomery’s criminal history.1 Montgomery entered

a no-contest plea to felony incest in Ravalli County District Court and received a twenty-

year suspended sentence in 2004.         In May 2006, Montgomery was charged with

numerous felony counts of sexual assault and sexual abuse of four children. Montgomery

pleaded guilty to two counts of felony sexual assault in exchange for the dismissal of the

remaining counts and withdrawal of a persistent felony offender notification. In January


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         Since 2009, Montgomery has filed three direct appeals, two of which were consolidated,
and four original proceedings for habeas corpus relief with this Court. He has also sought
rehearing on multiple occasions.
2007, the District Court sentenced Montgomery to twenty years in Montana State Prison

(MSP) with ten years suspended for each felony, to run consecutively. The court also

revoked Montgomery’s suspended sentence from his 2004 conviction and committed him

to MSP for twenty years with ten years suspended, to run consecutively with the sexual

assault convictions.

¶3     Montgomery filed motions to withdraw his pleas to all of the above-described

charges.   In October 2008, the District Court denied the motions in both cases.

Montgomery appealed. This Court affirmed the denial, concluding the motions were

time-barred. State v. Montgomery, 2010 MT 193, ¶¶ 14-19, 357 Mont. 348, 239 P.3d 929

(Montgomery I).

¶4     He subsequently filed a petition for a writ of habeas corpus, claiming his

incarceration was illegal and his three convictions for sexual offenses were invalid

because the court lacked the authority to accept a no-contest plea in a sex offense case.

Montgomery v. Law, No. OP 10-0489, 2010 Mont. LEXIS 605 (Dec. 7, 2010)

(Montgomery II). We rejected his petition, noting that Montgomery could have raised

these issues in an appeal “but elected not to do so and instead accepted the benefit of his

bargain.” Montgomery II, *3. We concluded he was therefore procedurally barred from

raising these issues via habeas corpus.

¶5     In May 2013, Montgomery again sought habeas corpus relief on the grounds that

“his convictions [were] ‘generally and/or facially invalid.’”     Montgomery v. Green,

No. OP 13-0279, 2013 Mont. LEXIS 294, 311 P.3d 444 (table) (May 29, 2013)

(Montgomery III). We reiterated that “Montgomery did not appeal from his 2004 or 2007

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convictions.” Montgomery III, *2. Citing § 46-22-101(2), MCA, we stated that “[t]he

writ of habeas corpus is not available to attack the validity of the conviction or sentence

of a person who has been adjudged guilty of an offense in a court of record and has

exhausted the remedy of appeal.” Montgomery III, *2 (citing Lott v. State, 2006 MT 279,

¶¶ 4, 19, 334 Mont. 270, 150 P.3d 337).

¶6     In October 2014, Montgomery, appearing pro se, filed a motion to vacate his

conviction and dismiss the charge. The District Court also denied this motion. He

appealed, claiming that the District Court erred in concluding that it had subject matter

jurisdiction over the State’s case against Montgomery. We affirmed the order of the

District Court. State v. Montgomery, 2015 MT 151, ¶ 2, 379 Mont. 353, 350 P.3d 77

(Montgomery IV). In August 2015, Montgomery filed another petition for habeas corpus

relief, challenging the May 2006 commencement of his prosecution in the Ravalli County

District Court. Montgomery v. Green, No. OP 15-0507, 2015 Mont. LEXIS 527, 381

Mont. 544, 357 P.3d 337 (table) (Sept. 1, 2015) (Montgomery V). In denying his petition,

we stated that “[h]e raises the same argument that this Court already rejected in his direct

appeal.” Montgomery V, *3.

¶7     On October 26, 2015, Montgomery filed a “Motion To Vacate Conviction and

Dismiss Charges” with the Ravalli County District Court. The court summarily denied

the motion with a hand-written notation on November 10, 2015. This appeal follows.




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                              STANDARD OF REVIEW

¶8     “We review a district court’s denial of a motion to dismiss in a criminal case de

novo for correctness.” State v. Maloney, 2015 MT 227, ¶ 12, 380 Mont. 244, 354 P.3d

611 (citing State v. Betterman, 2015 MT 39, ¶ 11, 378 Mont. 182, 342 P.3d 971).

                                     DISCUSSION

¶9     Montgomery filed a motion in the District Court to vacate his conviction and

dismiss the charges against him, which the court summarily denied. He now appeals

because of “a new rule of law . . . .” Montgomery complains that “the lower court

side-stepped the constitutionally mandated procedure (vehicle) for making [a probable

cause] determination.” (Emphasis in original.) He further complains that as a pro se

litigant he should have meaningful access to the courts.

¶10    The Attorney General for the State of Montana counters “that there must be an end

to litigation at some point.” State v. Perry, 232 Mont. 455, 464, 758 P.2d 268, 273

(1988) (internal citation omitted), overruled in part on other grounds, State v. Clark,

2005 MT 330, ¶¶ 30-32, 330 Mont. 8, 125 P.3d 1099. It argues that meaningful access to

the courts is not a “license to relitigate a cause or to burden the resources of the court

with successive claims which could have been brought in one action.” Perry, 232 Mont.

at 463, 758 P.2d at 273. The State maintains that Montgomery’s appeal is barred by the

doctrine of res judicata, and argues that Montgomery’s successive appeals and petitions

must come to an end. Montgomery replies that res judicata does not apply here.

¶11    Before we resolve the arguments presented, we address why we have referenced

Montgomery’s petitions for habeas corpus relief with this Court. This Court recognizes

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“the familiar principle that res judicata is inapplicable in habeas proceedings.” Sanders v.

United States, 373 U.S. 1, 8, 83 S. Ct. 1068, 1073 (1963) (citing Fay v. Noia, 372 U.S.

391, 423, 83 S. Ct. 822, 840 (1963)). See also Coleman v. State, 194 Mont. 428, 438,

633 P.2d 624, 630 (1981) (“Historically the principle of res judicata was not seen to

apply to writs of habeas corpus or petitions for relief under [the Federal Act, 22 U. S. C.]

§ 2255.”) However, when viewed in the aggregate, all of Montgomery’s challenges

constitute collateral attacks against his convictions. We have stated that “[r]es judicata

cannot be applied in such a manner as to deprive [a petitioner] of the right to file a

post-conviction procedure. However, res judicata can be used to bar the rehearing of

issues already litigated under the rule in Sanders.” Coleman, 194 Mont. at 438, 633 P.2d

at 630 (citing Sanders, 373 U.S. at 15, 83 S. Ct. at 1077). See Dawson v. State, 2000 MT

219, ¶ 162, 301 Mont. 135, 10 P.3d 49 (“The doctrine of res judicata may also pose a

procedural bar to postconviction relief.”).

¶12    The doctrine of res judicata bars relitigation of issues in criminal cases if three

criteria are met:

       (1) the same ground presented in the subsequent application was
           determined adversely to the applicant on the prior application,
       (2) the prior determination was on the merits, and
       (3) the ends of justice would not be served by reaching the merits of the
           subsequent application.

Kills on Top v. State, 279 Mont. 384, 399, 928 P.2d 182, 192 (1996) (citing State v.
Baker, 272 Mont. 273, 282, 901 P.2d 54, 59 (1995)). See also State v. Southwick, 2007
MT 257, ¶ 17, 339 Mont. 281, 169 P.3d 698.




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¶13    The doctrine of res judicata (claim preclusion) applies squarely to the instant

appeal.    McDaniel v. State, 2009 MT 159, n.2, 350 Mont. 422, 208 P.3d 817.

Montgomery has previously raised the same arguments he now raises as to the legality of

his convictions and sentences. “‘[C]laim preclusion’ refers to the preclusive effect of a

judgment . . .” and forecloses litigation of matters that should have been raised in earlier,

timely proceedings. Perry, 232 Mont. at 464, 758 P.2d at 274. This Court denied his two

prior appeals on the merits, determining they were time-barred and invalid, respectively.

Montgomery I; Montgomery IV. This Court also denied his habeas corpus petitions as

procedurally barred. Montgomery II; Montgomery III; Montgomery V. He now raises

the same arguments we have previously rejected. The ends of justice will not be served

by reaching the merits of Montgomery’s latest appeal.

                                     CONCLUSION

¶14    Based upon the foregoing, this Court affirms the Ravalli County District Court’s

summary denial of Montgomery’s motion to dismiss his conviction and vacate the

charges.

¶15    IT IS HEREBY ORDERED that, prior to filing any pleading or original petition

with this Court regarding his prior convictions or sentences as imposed in the Ravalli

County District Court in 2004 and 2007, Montgomery must file with this Court a motion

for leave to file the pleading or petition. The motion must be sworn under oath before a

notary public, must not exceed three pages in length, and must make a preliminary

showing that the motion has merit and is not barred under the foregoing criteria. Only

when this Court has reviewed the motion and issued an order granting leave to file may

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the Clerk of Court file the pleading or petition.   The Clerk shall reject any non-

conforming pleading or petition that Montgomery seeks to file and shall so inform

Montgomery.

      DATED this 12th day of July, 2016.


                                               /S/ PATRICIA COTTER

We Concur:

/S/ MICHAEL E WHEAT
/S/ JAMES JEREMIAH SHEA
/S/ BETH BAKER
/S/ JIM RICE




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