JAMES MONTGOMERY v. DAVID SHINN, STATE OF ARIZONA
Annotate this Case
Download PDF
IN THE ARIZONA COURT OF APPEALS DIVISION TWO JAMES T. MONTGOMERY, Petitioner/Appellant, v. DAVID SHINN, DIRECTOR, ARIZONA DEPARTMENT OF CORRECTIONS, Respondent/Appellee. No. 2 CA-HC 2020-0008 Filed January 22, 2021 THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES. NOT FOR PUBLICATION See Ariz. R. Sup. Ct. 111(c)(1); Ariz. R. Civ. App. P. 28(a)(1), (f). Appeal from the Superior Court in Pinal County No. S1100CV202001109 The Honorable Barbara A. Hazel, Judge Pro Tempore AFFIRMED James T. Montgomery, Florence In Propria Persona MONTGOMERY v. SHINN Decision of the Court MEMORANDUM DECISION Judge Brearcliffe authored the decision of the Court, in which Presiding Judge Eppich and Chief Judge Vásquez concurred. B R E A R C L I F F E, Judge: ¶1 Appellant James Montgomery challenges the trial court’s order denying his petition for a writ of habeas corpus. We affirm. ¶2 Montgomery, an inmate with the Arizona Department of Corrections, filed a petition for a writ of habeas corpus in August 2020. He argued that he was “illegally confined and restrained of his liberty” because his indictment had stated he was “charged with being ‘in violation of A.R.S. § 13-604.01,’” which had been “recognized as unconstitutional” and “repealed in 2008.” Montgomery reasoned that “if a statute under which [he] was indicted [is] repugnant to the constitution,” the proceeding against him is “void for want of jurisdiction” and “a nullity.” In an August 6, 2020 order, the trial court denied the petition, explaining that it had found “no legal basis . . . to grant the requested relief.” This appeal followed.1 ¶3 On appeal, Montgomery reasserts his claim. He contends that, because his indictment referred to § 13-604.01, an “unconstitutional” statute, the trial court exceeded its jurisdiction and his confinement is illegal. He also points out that, in its order, the court “did not dispute the fact that . . . § 13-604.01 was recognized as unconstitutional and repealed.” Montgomery’s notice of appeal was not file stamped until September 22, 2020. See Ariz. R. Civ. App. P. 9(a) (notice of appeal must be filed no later than thirty days after judgment). However, he attempted to file it earlier—in a timely fashion—but the clerk of the court returned it to him for failing to pay a filing fee. See State v. Goracke, 210 Ariz. 20, ¶ 5 (App. 2005) (under prisoner mailbox rule, pro se prisoner deemed to have filed notice of appeal when properly addressed and delivered to proper prison authorities for mailing); see also Tahtinen v. Superior Court, 130 Ariz. 513, 515 (1981) (“Filing fees must be waived when an indigent prisoner seeks to file . . . an appeal from . . . a habeas corpus petition concerning the reason for incarceration.”). 1 2 MONTGOMERY v. SHINN Decision of the Court ¶4 Generally, “[i]n Arizona, the writ of habeas corpus may be used only to review matters affecting a court’s jurisdiction.” In re Oppenheimer, 95 Ariz. 292, 297 (1964). Even assuming Montgomery is correct that his indictment was flawed, however, a deficient charging instrument does not deprive a court of subject-matter jurisdiction. See State v. Maldonado, 223 Ariz. 309, ¶ 13 (2010). The trial court therefore did not err in concluding Montgomery was not entitled to relief. See State v. Cowles, 207 Ariz. 8, ¶ 3 (App. 2004) (appellate court reviews denial of petition for writ of habeas corpus for abuse of discretion). ¶5 Accordingly, we affirm the order denying Montgomery’s petition for writ of habeas corpus. 3
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
