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Moment v. Malagar

United States District Court, D. Maryland

August 25, 2016

MICHAEL MOMENT, #16-02335 Petitioner,
v.
SUSAN K. MALAGAR, Warden Respondent MICHAEL MOMENT, #16-02335 Plaintiff,
v.
SUSAN K. MALAGAR, Warden Defendant

          MEMORANDUM OPINION

          Paul W. Grimm United States District Judge

         On July 11, 2016, Michael Moment filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. S 2241 and a Complaint pursuant to 42 U.S.C. S 1983, presenting claims arising from his detention on a bench warrant for violating his probation in case 117643C in the Circuit Court of Maryland for Montgomery County. The warrant was authorized by the Honorable Dwight D. Jackson, Associate Judge for the Circuit Court of Maryland for Prince Georgess County. See http://msa.maryland.gov/msa/mdmanual/31cc/html/msal3475.html (listing Judge Jackson as an Associate Judge for Prince Georgess County Circuit Court). Momentss 28 U.S.C. S 2241 Petition was docketed in Civil Action No. PWG-16-2535 and the Complaint under 42 U.S.C. S 1983 was docketed Civil Action No. PWG-16-2536. Moment also filed a Motion to Proceed in Forma Pauperis in each case, which I will grant.

         Moment asserts that the bench warrant is invalid because Judge Jackson has "no legal authority to issue any warrant out of the political subdivision of Montgomery County, " given that he is a Prince George's County Circuit Court judge.[1] Compl. 4; see Pet. 8. Moment submitted a copy of the bench warrant authorized by Judge Jackson in the Circuit Court for Montgomery County on March 7, 2016. See Warrant, Att. 1, ECF No. 1-1 in PWG-16-2535. Additionally, Moment complains that more than 122 days have passed without holding a hearing on the charges. Pet. 8; Compl. 4-5. In his habeas petition, Moment asks for a hearing or immediate release. Pet. 8. In his S 1983 Complaint, Moment seeks his immediate release and $250, 000. Compl. 4.

         On August 11, 2016, Moment notified the Court that he "ha[s] been released from the Montgomery County Jail for some reason, " and he provided his current address, 1109 Montrose Ave., Laurel, MD 20707. ECF No.5 in PWG-16-2536. He also filed a Certificate of Service of his Complaint. ECF No.6 in PWG-16-2536.

         I take notice of the state electronic docket which shows that the Montgomery County Circuit Court held a violation of probation hearing on August 2, 2016 and found Moment in violation of probation. See http://casesearch.courts.state.md.us/casesearch/inquiryDetail.jis? caseI117643C&loc=68&detailLoc=MCCR. Judge Jackson set Momentss sentencing for December 8, 2016. Moment was not released on bond, but then on August 3, 2016, he was released on his own recognizance.[2] He filed an application for leave to appeal.

         Release from Custody

         Judge Jackson's authority as a Prince Georgess County Circuit Court judge to issue a warrant in Montgomery County Circuit Court is unclear. Nonetheless, insofar as Moment seeks "immediate release" in his § 1983 Complaint, "[h]abeas corpus, and not §1983, is the exclusive federal remedy for state prisoners seeking actual release from confinement." Griffin v. Bait. Police Dep't, 804 F.3d 692, 694-95 (4th Cir. 2015) (citing Preiser v. Rodriguez, 411 U.S. 475, 487-90 (1973)). And, "habeas petitioners must exhaust available state remedies before seeking relief in federal court." Cone v. Bell. 556 U.S. 449. 465 (2009); see Pringle v. Johnson, No. GJH-14-3041, 2016 WL 1752755, at *4 (D. Md. May 2, 2016) (same). For a person convicted of a criminal offense in Maryland this may be accomplished either on direct appeal or in postconviction proceedings. See Matthews v. Evatt, 105 F.3d 907, 911 (4th Cir. 1997) ("To satisfy the exhaustion requiremen,, a habeas petitioner must fairly present his claim to the state's highest court."), overruled on other grounds by United States v. Barnette, 644 F.3d 192 (4th Cir. 2011); Bradley v. Davis, 551 F.Supp. 479, 481 (D. Md. 1982) ("[A] failure to appeal from a denial of relief in a state post-conviction proceeding constitutes a failure to exhaust state remedies, " unless "at the time of filing the federal habeas corpus petition, it appears that petitioner has no remaining available state remedies."). The petitioner must show, not only that he sought review of his claim but also that he has "been denied relief in the state courts, if a state remedy is available and adequate."). Preiser, 411 U.S. at 477, 491; 28 U.S.C. § 2254(b) and (c). Moment has not shown that he has exhausted his state court remedies. Therefore, I will dismiss his habeas petition without prejudice to refiling as a § 2254 petition after exhaustion of state court remedies. See Preiser, 411 U.S. at 477, 491. Moment will be sent a § 2254 form and information packet to assist him should he desire to file for federal habeas relief after he exhausts his remedies in state court.

         Certificate of Appealability

         When a district court dismisses a habeas petition, a certificate of appealability may issue "only if the applicant has made a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). An inmate satisfies this standard by demonstrating "that reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong, " Tennard v. Dretke, 542 U.S. 274, 282 (2004) (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)), or that "the issues presented were 'adequate to deserve encouragement to proceed further.' " Miller-el v. Cockrell, 537 U.S. 322, 335-36 (2003) (quoting Barefoot v. Estelle, 463 U.S. 880, 893 n.4 (1983)). Moment does not satisfy this standard, and the court declines to issue a certificate of appealability.

         Damages Claim

         Because Moment has been found to be in violation of probation[3] but his state criminal proceeding still is ongoing, with his appeal and sentencing both pending, his ~ 1983 claim for damages is premature. The Supreme Court has held "(w]here success in a prisoner's § 1983 damages action would implicitly question the validity of conviction or duration of sentence, the litigant must first achieve favorable termination of his available state, or federal habeas, opportunities to challenge the underlying conviction or sentence." Muhammad v. Close, 540 U.S. 749, 751. (2004) (citing Heck v. Humphrey, 512 U.S. 477 (1994)). "In order to recover damages for an allegedly unconstitutional conviction or imprisonment or for other harm whose unlawfulness would render a conviction or sentence invalid, a S 1983 plaintiff must demonstrate that the conviction or sentence has been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such a determination, or called into question by a federal court's issuance of a writ of habeas corpus pursuant to 28 U.S.C. S 2254." Heck, 512 U.S. at 486-87. In this case, it appears that Moment has appealed his conviction, but Moment provides no evidence that his conviction, sentence, or violation of probation was invalidated. Consequently, this claim must be dismissed.

         Therefore, I will dismiss both cases without prejudice by separate Order to follow.

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