United States v. Montgomery

• Court: District Court, District of Columbia
• Decided: December 4, 2013
• Docket: Criminal No. 2005-0067
• Status: Published

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

) UNITED STATES OF AMERICA, ) ) v. ) Criminal Case No. 05-67 (RWR) ) VERNON MONTGOMERY, ) ) Defendant. ) )

MEMORANDUM ORDER

Defendant Vernon Montgomery has filed a pro se motion

titled “Notice of Appeal Pursuant to Habeas Corpus in a Pro Se

Motion Forma Pauperis for Ineffective Counsel Representation to

Petitioner, Violation of Constitutional Right and Due Process

Clause for Speedy Trial Act Exceeding 30 Day Countdown Procedure

USC 18 3161(b).” Because Montgomery challenges the legality of

his underlying conviction, rather than the execution of his

sentence, his filing is properly construed as a motion to

vacate, set aside, or correct the sentence under 28 U.S.C.

§ 2255. However, before the Court can formally recharacterize

Montgomery’s filing as a motion under § 2255, the Court must

first comply with the holding in Castro v. United States, 540

U.S. 375 (2003), and inform Montgomery of the consequences that

may result from the filing of a motion under § 2255. See

Castro, 540 U.S. at 382-83 (“[A] district court may not

recharacterize a pro se litigant’s motion as a request for - 2 -

relief under § 2255 -- unless the court first warns the pro se

litigant about the consequences of the recharacterization,

thereby giving the litigant an opportunity to contest the

recharacterization, or to withdraw or amend the motion.”);

United States v. Palmer, 296 F.3d 1135, 1145-47 (D.C. Cir.

2002).

Under the Supreme Court’s directive, Montgomery is hereby

advised of the following:

First, if the Court characterizes Montgomery’s claim

concerning the legality of his conviction as a § 2255 motion,

Montgomery will not be able to file any further motions

challenging his conviction or sentence unless the U.S. Court of

Appeals for the District of Columbia Circuit authorizes him to

file such a motion. In this regard, Montgomery is advised that

the Court of Appeals will not authorize him to file a second or

successive § 2255 motion unless the motion contains: (1) newly

discovered evidence that would establish, by clear and

convincing evidence, that Montgomery is not guilty of the

offenses of which he was convicted; or (2) a new rule of

constitutional law that the Supreme Court makes applicable to

cases on collateral review and that was previously unavailable.

See 28 U.S.C. § 2255(h).

Second, if the Court recharacterizes Montgomery’s motion as

a § 2255 motion, the motion will be subject to a one-year period - 3 -

of limitations. This period of limitations requires a court to

dismiss a § 2255 motion unless it is filed within one year of

the latest of the following dates: (1) the date on which the

judgment of conviction becomes final; (2) the date on which any

governmental interference preventing defendant from filing such

a motion is removed; (3) the date on which the right asserted

was initially recognized by the Supreme Court, if that right has

been newly recognized by the Supreme Court and made applicable

to cases on collateral review; or (4) the date on which the

facts supporting defendant’s claims could have been discovered

through the exercise of due diligence. See 28 U.S.C. § 2255(f).

Third, because of the consequences that may result if the

Court characterizes this claim as a § 2255 motion, the Court

will afford Montgomery the opportunity to withdraw his claim

regarding the legality of his conviction, or amend it so that it

contains all the claims he believes he has to challenge his

conviction or sentence, before the Court characterizes his claim

as a § 2255 motion. In the event that Montgomery decides to

withdraw this claim and file another motion in its place,

Montgomery is advised that any motion attacking his conviction

or sentence will be subject to the restrictions on § 2255

motions described in the above paragraphs.

Accordingly, it is hereby - 4 -

ORDERED that Montgomery shall have up to and including

sixty days from the date of this Order to withdraw the motion or

amend it so that it contains all the § 2255 claims he thinks he

may have.1 If the Court receives no timely response from

Montgomery, the Court will recharacterize his motion as a motion

filed under § 2255.

SIGNED this 4th day of December, 2013.

_________/s/_________________ RICHARD W. ROBERTS Chief Judge

1 Of course, Montgomery need not add any claims if he believes that his only claims are those which are described in Docket No. 125. In that instance, Montgomery need merely file a short notice stating that he wishes to proceed with his pro se motion as it was filed with the Court.