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Montgomery v. Armstead

United States District Court, D. Maryland

April 9, 2019

DAVID MICHAEL MONTGOMERY, Petitioner
v.
ACTING WARDEN LAURA ARMSTEAD, and THE ATTORNEY GENERAL OF THE STATE OF MARYLAND Respondents[1]

          MEMORANDUM

          Ellen L. Hollander United States District Judge.

         David Michael Montgomery, who is self represented, filed a Petition for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254, challenging his Maryland convictions in 2013 for second-degree murder and armed robbery after he pleaded guilty in the Circuit Court for Carroll County, Maryland. ECF 1. He later supplemented the Petition (ECF 9), at the Court's direction. ECF 3. I shall refer to ECF 1 and ECF 9 collectively as the “Petition.”

         Respondents filed a Limited Answer seeking to dismiss the Petition as time-barred. ECF 22. Montgomery was provided an opportunity to explain why the Petition should not be dismissed as time-barred (ECF 24), and he filed a Reply. ECF 31.[2]

         Montgomery also has filed a Motion for Drug and Mental Health Evaluation (ECF 55), Motion to Appoint Counsel (ECF 56, 61), Motion to Grant a Suspended Sentence (ECF 57), Motion to Grant a Tracking Device and House Arrest (ECF 58), Motion to Grant Probation Having Back Up Time (ECF 59); Motion for a Hearing (ECF 60), Motion for Probation (ECF 92), Motion for Tracking Device (ECF 93), Motion to Suspend Sentence (ECF 94), and Motion for Drug and Mental Health Evaluation (ECF 95).

         After considering the pleadings, exhibits, and applicable law, I find a hearing is unnecessary to resolve the issues. See Local Rule 105.6 (D. Md. 2018); Rule 8, Rules Governing Section 2254 Proceedings in the United States District Courts; see also Fisher v. Lee, 215 F.3d 438, 455 (4th Cir. 2000) (stating a petitioner is not entitled to a hearing under 28 U.S.C. § 2254(e)(2)). For the reasons that follow, I will deny Petitioner's motions and dismiss the Petition as time-barred.

         I. PENDING MOTIONS

         An inmate in custody pursuant to a state judgment may file a § 2254 Petition “on the ground that he is in custody in violation of the Constitution or laws . . . of the United States.” 28 U.S.C. § 2254. Montgomery has filed several self-styled motions in this § 2254 proceeding, asking the court to order substance and mental health treatment, and to suspend his sentence, put him under “house arrest” with a tracking device, or place him on probation consequent to his entry and completion of treatment. ECF 55, 57, 58, 59, 92, 93, 95. None allege or pertain to a violation of a (requesting drug treatment); ECF 32 (requesting drug and mental health treatment); ECF 35 (requesting drug treatment); ECF 35 (asking to be transferred out of Patuxent Institution). constitutional or state law.[3] These motions are not appropriate for consideration pending threshold examination of the timeliness issue or appropriate for review in a federal habeas proceeding under § 2254. To the extent Montgomery may be requesting mandamus relief, federal district courts have no mandamus jurisdiction over State employees such as the Respondents. Gurley v. Superior Court of Mecklenburg County, 411 F.2d 586, 587 (4th Cir. 1969); see also Moye v. Clerk, DeKalb Cnty. Sup. Court, 474 F.2d 1275, 1275-76 (5th Cir. 1973) (noting federal courts do not have original jurisdiction over mandamus actions to compel an officer or employee of a state to perform a duty owed to the petitioner). Montgomery's motions are considered below.

         A. Motion for Drug and Mental Health Treatment

         Montgomery asks the court to order a “drug and mental health” evaluation and treatment under Md. Code, Health General Article §§ 8-505, 8-507. ECF 55; ECF 95. Section 8-505(a)(1) of the Health-General Article of the Maryland Code provides:

. . . the court may order the [Department of Health] to evaluate a defendant to determine whether, by reason of drug and alcohol abuse, the defendant is in need of and may benefit from treatment[.]

Md. Code, Health-General § 8-507(a) provides, in part:

If a court finds in a criminal case that a defendant has an alcohol or drug dependency, the court may commit the defendant as a condition of release, after conviction, or at any other time the defendant voluntarily agrees to treatment to the Department for inpatient, residential, or outpatient treatment.

         Under this section, whether a defendant is committed to treatment is within the discretion of the judge. Id. The relief Montgomery is requesting is not available by way of a federal habeas petition. The motions (ECF 55; ECF 95) will be denied, for the reasons stated above.

         B. Motions to Grant a Suspended Sentence

         Montgomery asks in two separate motions for a suspended sentence so that he can enter “a drug treatment program under #8-505 and #8-507.” ECF 57; ECF 95. These motions will be denied, for the reasons discussed above.

         C. Motions for Use of a Tracking Device

         Montgomery asks to be ordered to use a tracking device, presumably in lieu of incarceration. He asks the Court to place him under “house arrest” with a tracking device. ECF 58. In a second Motion, he asks for a tracking device, drug and mental health treatment, and a suspended sentence, claiming that he does not pose a flight risk. ECF 93. For the reasons discussed above, both motions (ECF 58; ECF 93) will be denied.

         D. ...


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