Montgomery v. USA

Filing 22

ORDER granting 19 Motion to Supplement; finding as moot 20 Motion for Leave to Proceed in forma pauperis and denying 21 Motion for Bond. The Court allows the government up to and including July 13, 2011 to file a response to the supplment. See Order for details. Signed by Chief Judge David R. Herndon on 6/13/2011. (klh, )

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
CALVIN C. MONTGOMERY,
Plaintiff,
v.
UNITED STATES OF AMERICA,
Defendant.

No. 10-0356-DRH
MEMORANDUM and ORDER

HERNDON, Chief Judge:
Pending before the Court are several motions filed by Montgomery: motion
requesting permission to supplement original 28 U.S.C. § 2255 motion (Doc. 19);
motion to proceed in forma pauperis (Doc. 20); and motion for bond pending appeal
(Doc. 21). Based on the following, the Court rules as follows.
As to the motion to supplement, the Court grants the motion. The Court
deems document number 19 filed on June 2, 2011 as a supplement to Montgomery’s
original 28 U.S.C. § 2255 petition. Thus, the Court ALLOWS the government up to
and including July 13, 2011 to file its response to the supplement.
Next, the Court denies as moot, Montgomery’s motion to proceed in forma
pauperis as there is no filing fee for a 28 U.S.C. § 2255 petition.
Lastly, the Court denies Montgomery’s motion for bond pending appeal, which
the Court construes as a motion for bond pending decision on the § 2255 petition.
“[F]ederal district judges in habeas corpus and section 2255 proceedings have
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inherent power to admit applicants to bail pending the decision of their cases, but
a power to be exercised very sparingly.” Cherek v. United States, 767 F.2d 335, 337
(7th Cir.1985). The Seventh Circuit explained:
The reasons for this parsimonious exercise of the power should be
obvious. A defendant whose conviction has been affirmed on appeal (or
who waived his right to appeal, as by pleading guilty, or by foregoing
appeal after being convicted following a trial) is unlikely to have been
convicted unjustly; hence the case for bail pending resolution of his
postconviction proceeding is even weaker than the case for bail pending
appeal. And the interest in the finality of criminal proceedings is poorly
served by deferring execution of sentence till long after the defendant
has been convicted.

Cherek, 767 F.2d at 337.
Bail pending post-conviction habeas corpus review is therefore available “only
when the petitioner has raised substantial constitutional claims upon which he has
a high probability of success, and also when extraordinary or exceptional
circumstances exist which make the grant of bail necessary to make the habeas
remedy effective.” Landano v. Rafferty, 970 F.2d 1230, 1239 (3d Cir.1992). The
Court finds that petitioner has not met his burden to establish that he is entitled to
the extraordinary relief sought. Montgomery has not alleged anything in his motion
for bond that, even if true, would convince the Court that bail would be appropriate
in this case. Thus, the relief is not warranted.
Accordingly, the Court GRANTS the motion requesting permission to
supplement original 28 U.S.C. § 2255 motion (Doc. 19); DENIES as moot the motion
to proceed in forma pauperis (Doc. 20); and DENIES the motion for bond pending
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appeal (Doc. 21).
IT IS SO ORDERED.
Signed this 13th day of June, 2011.
Digitally signed by David R.
Herndon
Date: 2011.06.13 11:23:58
-05'00'

Chief Judge
United States District Court

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