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26 ORDER – 1

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

AT SEATTLE

LESLIE K. MONTGOMERY,

Petitioner,

v.

BELINDA STEWART,

Respondent.

CASE NO. C05-1724-JCC

ORDER

This matter comes before the Court on Petitioner Leslie K. Montgomery’s petition for writ of

habeas corpus under 28 U.S.C. § 2254 (Dkt. No. 1), the Report and Recommendation of United States

Magistrate Judge Monica J. Benton (“R&R”) (Dkt. No. 16), and Petitioner’s Objections to the R&R

(Dkt. No. 17). Having reviewed the materials submitted by the parties and the complete record, and

finding that oral argument is not necessary, the Court hereby finds and rules as follows.

I. BACKGROUND

Petitioner is incarcerated at the Washington Correction Center for Women in Gig Harbor,

Washington. In 2000, a jury convicted Petitioner of first degree murder as an accomplice with a firearm

enhancement. (Record (“R.”) (Dkt. No. 13) Ex. 1 at 1.) Petitioner was sentenced to 300 months

confinement. (Id. at 3.)

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26 ORDER – 2

On direct appeal, the Washington State Court of Appeals affirmed Petitioner’s conviction. ®.

Ex. 3.) On April 1, 2003, the Washington State Supreme Court denied review. ®. Ex. 7.) On April 21,

2004, Petitioner signed and later filed a Personal Restraint Petition (“PRP”) in the Washington Court of

Appeals. ®. Ex. 8.) The court of appeals dismissed the petition on December 30, 2004. ®. Ex. 10.) 

Petitioner did not seek review in the Washington Supreme Court, and the court of appeals issued its

certificate of finality on March 14, 2005. ®. Ex. 11.) On October 7, 2005, Petitioner signed and filed

this federal habeas petition. (Dkt. No. 1.)

II. ANALYSIS 

This Court reviews the record de novo when considering objections to a magistrate judge’s R&R. 

See 28 U.S.C. § 636(b)(1). 

The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) imposes a one-year

statute of limitations on § 2254 habeas petitions. See 28 U.S.C. § 2244(d)(1). The statute of limitations

begins to run when direct review in state court concludes, or when the time for seeking such direct

review ends, whichever is later. Id. After entry of the state supreme court’s ruling, a petitioner has

ninety days to file a petition for a writ of certiorari in the United States Supreme Court. See U.S. SUP.

CT. R. 13.1, 13.3. The statute of limitations is tolled during a properly filed collateral state challenge to

the state conviction, such as a PRP. 28 U.S.C. § 2244(d)(2). The statute of limitations is also tolled any

day that an act or event in the proceedings occurs. FED. R. CIV. P. 6(a).

Here, the statute of limitations began to run, at the latest, on July 1, 2003. This date is ninety

days after the Washington Supreme Court denied review on April 1, 2003, and when Petitioner’s

opportunity for direct appeal to the U.S. Supreme Court expired. From July 1, 2003 to April 20, 2004,

295 days ran on the statute of limitations. On April 21, 2004, Petitioner signed and later filed her PRP in

the Washington Court of Appeals. The court of appeals dismissed the PRP on December 30, 2004 and

the statute of limitations clock restarted on December 31, 2004. The statute of limitations expired 70

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26 ORDER – 3

days later on March 10, 2005. Petitioner did not sign and file her federal habeas petition until October 7,

2005, several months after the statute of limitations expired. 

Petitioner claims that she was advised that she still had several months to file her federal habeas

petition before the statue of limitations expired. (Dkt. No. 17.) However, even if this Court for reasons

of equity considers Petitioner’s habeas petition timely, see Calderon v. United States District Court

(Beeler), 128 F.3d 1283, 1288 (9th Cir. 1997) (statute of limitations equitably tolled for “extraordinary

circumstances”), her claims would fail on the merits. 

Under the AEDPA, the Court must deny a habeas petition unless a state court reached a decision

that is (1) “contrary to, or involved an unreasonable application of, clearly established Federal law, as

determined by the Supreme Court of the United States”; or (2) based on an unreasonable determination

of the facts in light of the evidence at trial. 28 U.S.C. § 2254(d). 

Petitioner first contends that she was denied her Sixth Amendment right to effective counsel when

her defense counsel failed to call Michael Williams, the principal defendant, to testify on her behalf. To

establish ineffective assistance of counsel, Petitioner must demonstrate (1) that the attorney’s

representation fell below an objective standard of reasonableness, and (2) the deficiency resulted in

prejudice. See Strickland v. Washington, 466 U.S. 668, 687 (1984). This Court agrees with the

Washington Court of Appeals that, after interviewing Mr. Williams, Petitioner’s counsel made a

reasonable and strategic trial decision not to call him as a witness. (R. Ex. 10.) Indeed, a court must

indulge a strong presumption that counsel’s conduct falls within a wide range of reasonable professional

assistance. Edwards v. Lamarque, 439 F.3d 504, 511 (9th Cir. 2005). As the Washington Court of

Appeals reasoned, given Petitioner’s extensive statements to police regarding her role as an accomplice,

counsel could reasonably conclude that Williams’s additional testimony would not assist the defense. (R.

Ex. 10.) Petitioner does not cite, nor can this Court find, any federal law that requires counsel to call

certain witnesses, or any federal law that the state courts violated in reaching their conclusions.

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Petitioner next claims that the state trial court erred by presenting faulty jury instructions

regarding accomplice liability. However, the Washington Court of Appeals showed that this claim is

substantively incorrect. The jury instructions correctly tracked the relevant statutory language. 

(R. Ex. 10; see also WASH. REV. CODE § 9A.08.020.)

Petitioner’s final claim is that the trial court erred when it presented faulty jury instructions

regarding the firearm enhancement. This Court agrees with the Washington Court of Appeals that any

error that may have existed was harmless beyond a reasonable doubt because “the evidence was

uncontroverted that Williams was personally armed with a gun and used it to shoot [the victim].” (R. Ex.

10.) Under relevant Washington law, all accomplices are deemed to be armed even if only one firearm is

involved. (R. Ex. 10; see also WASH. PATTERN JURY INSTRUC. CRIM. 2.10.01.) Petitioner does not cite,

nor can this Court find, any federal law that the state courts violated in reaching their conclusions.

III. CONCLUSION 

For the foregoing reasons, the Court ADOPTS the Report and Recommendation and DENIES

the habeas petition. The Clerk is DIRECTED to send copies of this Order to Petitioner, Respondent, and

Magistrate Judge Benton. 

SO ORDERED this 17th day of August, 2006.A

John C. Coughenour

United States District Judge

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