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Montague v. Kellum

Court of Appeals of Tennessee, Knoxville

June 22, 2018

CHARLES MONTAGUE
v.
MICHAEL D. KELLUM

          Assigned on Briefs May 1, 2018

          Appeal from the Circuit Court for Washington County No. 7877 James E. Lauderback, Judge

         A man convicted of multiple criminal offenses sued his former criminal defense attorney for legal malpractice, and the trial court granted the defendant's motion for summary judgment. On appeal, the plaintiff argues that the trial court erred in dismissing his legal malpractice action. Because the plaintiff failed to establish a necessary element of his claim for criminal legal malpractice-namely, exoneration-we affirm the trial court's decision.

         Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed

          Charles Montague, Mountain City, Tennessee, Pro Se.

          Christopher Cahill Field and Darryl Gene Lowe, Knoxville, Tennessee, for the appellee, Michael D. Kellum.

          Andy D. Bennett, J., delivered the opinion of the Court, in which J. Steven Stafford, P.J., W.S., and John W. McClarty, J., joined.

          OPINION

          ANDY D. BENNETT, JUDGE

         Factual and Procedural Background

         In 1990, Charles Montague was convicted by a jury of possession of cocaine for resale, possession of marijuana, and possession of drug paraphernalia. The following year, the Tennessee Court of Criminal Appeals reversed Mr. Montague's drug convictions based upon ineffective counsel and remanded the case for retrial. State v. Montague, No. 03C01-9105CR134, 1991 WL 236724, at *2-3 (Tenn. Crim. App. Nov. 15, 1991). Prior to his retrial on the drug offenses, Mr. Montague was convicted of first degree murder and sentenced to life imprisonment; the Court of Criminal Appeals affirmed the conviction and sentence. State v. Montague, No. 03C01-9306-CR-00192, 1994 WL 652186, at *10 (Tenn. Crim. App. Nov. 21, 1994). Then, in 1993, he was retried on the drug offenses and convicted again. The criminal court sentenced Mr. Montague to six years for the cocaine offense and to a shorter time for the misdemeanor offenses; all of the sentences were to be served consecutively to one another and to the life sentence for first degree murder. The Court of Criminal Appeals affirmed the judgment of the criminal court in 1995. State v. Montague, No. 03C01-9406-CR-00233, 1995WL 509426, at *5 (Tenn. Crim. App. Aug. 29, 1995).

         On August 6, 1996, Mr. Montague filed a petition for post-conviction relief in the Washington County criminal court. After this initial filing, attorney Michael D. Kellum began to represent him and filed an amended petition for post-conviction relief. The criminal court dismissed the post-conviction petition on April 15, 1999, in an order in which the court cited a number of reasons, including the following:

1. The Court finds the petition's Writ and Amended Writ for Post Conviction Relief are improper in form, in that the petition and amended petition, do not state facts within these petitions to support the allegations that would require setting this action for hearing and is therefore dismissed.
2. The Court finds that the issue of revealing the confidential informant in the underlying case has been previously determined not to be applicable to this case by the Court of Appeals. The issue is not subject to Post Conviction relief. . . .
3. As to the issue of ineffective assistance of counsel, the court finds that there are no facts in the documents before the court to show this court that counsel was deficient in any way, and secondly, that based on the same reasoning, there was no showing of prejudice. Therefore, this issue is dismissed.
4. Also, the petitioner claims that there was a selective discriminatory selection of jurors by the State in the grand jury and petit jury that heard his case. The Court finds that there are no facts in the petition or amended petition to support such allegations and petitioner's claim on this issue is dismissed.
5. The next issue, whether the underlying conviction and sentence, is unconstitutional due to perjured testimony by the State, this issue was raised on appeal. Therefore, because this issue has previously been heard by the Court of Appeals, it is found that this issue is ...

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