Montgomery v. State of Alabama et al

Filing 19

MEMORANDUM OPINION AND ORDER that the court REJECTS the magistrate judge's recommendation that Montgomery's 2254 petition be denied as time-barred and his motion to amend be denied as futile; therefore the motion to amend is GRANTED; the mo tion seeking a ruling on petition is DENIED; and the court refers this action to the magistrate judge for further proceedings consistent with this memorandum opinion and order as more fully set out in order. Signed by Judge C Lynwood Smith, Jr on 3/30/2016. (AHI )

FILED
2016 Mar-30 AM 10:52
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
LYLE DAN MONTGOMERY,
Petitioner,
vs.
STATE OF ALABAMA and
KARLA JONES,
Respondents.

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MEMORANDUM OPINION AND ORDER
This action is before the court on a petition for a writ of habeas corpus filed
pursuant to 28 U.S.C. § 2254 by Lyle Dan Montgomery, a state prisoner proceeding
pro se. (Doc. 1). The magistrate judge entered a report and recommendation on
February 25, 2016, recommending that Montgomery’s § 2254 petition be denied as
barred by the statute of limitations set forth in 28 U.S.C. § 2244(d)(1)(A). (Doc. 17).
The magistrate judge further recommended that Montgomery’s motion seeking to
amend his petition be denied as futile, and his motion seeking a ruling on his petition
be denied as moot. (Id.). Finally, in accordance with Rule 11 of the Rules Governing
Section 2254 Cases, the magistrate judge recommended that no certificate of
appealability be issued. (Id.).
Montgomery has filed objections to the magistrate judge’s report and

recommendation.

(Doc. 18).

He primarily argues that the magistrate judge

incorrectly concluded that the limitations period applicable to his petition began to
run on the date his conviction became final through the conclusion of direct review
or expiration of time to seek that review, pursuant to § 2244(d)(1)(A), rather than on
the date he discovered the factual predicate of his claims through the exercise of due
diligence, pursuant to § 2244(d)(1)(D). (Id.). He claims that he did not discover the
facts underlying his claims until July 6, 2010, when his brother contacted the trial
court and discovered that the Alabama Court of Criminal Appeals had affirmed his
conviction in November of 2009. (Id.). He claims that he could not have discovered
the factual predicate of his claims before that date, because his appellate counsel
failed to respond to his repeated attempts to communicate with her. (Id.).
In his original petition, Montgomery challenges his state sodomy conviction
on four grounds: the prosecution withheld favorable evidence; his trial counsel
rendered constitutionally defective assistance in a variety of ways; there was an
illegal search and seizure of his property; and the trial court lacked jurisdiction on
account of a defective indictment. (Doc. 1-1 at 5, 7-31). In his motion to amend,
Montgomery seeks to add claims that his appellate counsel rendered constitutionally
defective assistance by failing to raise any valid claims on appeal, including that the
prosecution withheld favorable evidence, and that his trial counsel rendered
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constitutionally defective assistance. (Doc. 12). There is no basis for a finding that
Montgomery could not have discovered the factual predicate of the four claims raised
in his original petition before July 6, 2010, through the exercise of due diligence.
Even so, Montgomery’s argument that the limitations period should commence on
July 6, 2010, pursuant to § 2244(d)(1)(D), may be meritorious as to his ineffectiveassistance-of-appellate-counsel claims, at least some of which Montgomery appears
to have raised in his Rule 32 proceedings.
For the foregoing reasons, and after careful consideration of the record in this
case and the magistrate judge’s report, the court REJECTS the magistrate judge’s
recommendation that Montgomery’s § 2254 petition be denied as time-barred and his
motion to amend be denied as futile. The court GRANTS Montgomery’s motion to
amend (Doc. 12), to the extent that the magistrate judge will consider whether the
claims he seeks to add through the motion are timely, and, if they are timely and not
otherwise barred, whether they are meritorious.

Finally, the court DENIES

Montgomery’s motion seeking a ruling on his petition. (Doc. 13). The court refers
this action to the magistrate judge for further proceedings consistent with this
Memorandum Opinion and Order. The magistrate judge will enter another report and
recommendation addressing the issues presented by this action in due course.

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DONE and ORDERED this 30th day of March, 2016,

______________________________
United States District Judge

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