State of Louisiana v. Gregg Montgomery

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT
P.O. Box 16577
Lake Charles LA 70616
(337) 433-9403

NOT DESIGNATED FOR PUBLICATION
Gregg Montgomery
E. Hunt C.C. Fox - 3B Bed 41
P.O. Box 174
St. Gabriel LA 70776

REHEARING ACTION: February 5, 2014

Docket Number: 13 00819-KH

STATE OF LOUISIANA
VERSUS
GREGG MONTGOMERY

Writ Application from Calcasieu Parish Case No. 96-15288

BEFORE JUDGES:

Hon. Sylvia R. Cooks
Hon. Marc T. Amy
Hon. James T. Genovese

As counsel of record in the captioned case, you are hereby notified that the application

for rehearing filed by Gregg Montgomery has this day been

DENIED.
Amy, J., concurs in the denial of the application for rehearing for the following
reasons:

Martinez v. Ryan, ___ U.S. ___, 132 S.Ct. 1309 (2012), decided whether a federal
court was required to follow the State of Arizona's procedural guidelines in an
instance where Arizona law prohibited ineffective assistance of counsel claims from
being presented on appeal and allowed only one opportunity thereafter to raise the
claim. Martinez held that, where justice requires, federal courts are not bound
to State procedural prohibitions. In Louisiana, ineffective assistance of trial counsel
claims may be raised on appeal but can be relegated to post-conviction relief if they
are not resolvable upon the appellate record; additionally, ineffective assistance of
counsel claims are reviewable on post-conviction if not previously raised in an
appeal. La.Code Crim.P. art. 930.3; State v. Runnels, 12-167 (La.App. 3 Cir.
11/7/12), 101 So.3d 1046, writ denied, 13-498 (La. 7/31/13), 118 So.3d 1121.
Therefore, the Martinez ruling does not fit within the time limitation exception set
forth by La.Code Crim.P. art. 930.8(A)(2) because it does not apply to any failure on
Relator's behalf to avail himself of the opportunities provided by this State to assert
ineffective assistance of counsel claims in the State courts of Louisiana.

Moreover, Relator’s application for rehearing was not filed timely, and he is not
entitled to rehearing in this matter because his writ application was denied by this
court. Uniform Rules—Courts of Appeal, Rules 2-18.2, 2-18.4, 2-18.7, 4-9.

cc: John Foster DeRosier, Counsel for the Respondent