Opinion
1:17-cr-00060
07-18-2023
UNITED STATES OF AMERICA, Plaintiff, v. MARC A. MONTGOMERY, Defendant.
ORDER
[RESOLVING DOCS. 151 & 152]
JAMES S. GWIN, UNITED STATES DISTRICT COURT JUDGE:
Inmate Marc Montgomery moves pro se for relief from his armed-robbery conviction and 140-month prison sentence. Specifically, Montgomery asks for a new trial, relief from judgment, and a hearing to decide whether co-conspirator statements were admissible. Montgomery also asks for a court-appointed attorney.
Because Montgomery's motion collaterally attacks his conviction and sentence, the Court construes the motion as a second-or-successive motion under 28 U.S.C. § 2255(h) and TRANSFERS the motion to the Sixth Circuit for certification. And because Montgomery's mental-health issues may impede his ability to represent himself, the Court GRANTS Montgomery's motion for an attorney.
Since his 2017 conviction for conspiring to rob a bank with a firearm, Montgomery has attacked his conviction and sentence several times.Montgomery's postconviction efforts included an unsuccessful collateral attack under 28 U.S.C. § 2255.
Docs. 44 (new trial); 46 (new trial); 54 (reconsider new-trial denial); 76 (direct-appeal notice); 100 (§ 2255 collateral attack); 133 (§ 2255 denial appeal notice).
Doc. 100.
Now, Montgomery asks for a new trial under Federal Civil Rule 59(e), relief from this Court's judgment under Federal Civil Rule 60(b)(6), and a Jame hearing (in this Circuit, called an Enright hearing). Broadly speaking, Montgomery renews arguments that insufficient evidence supported his role in the conspiracy. Montgomery also suggests that the Court miscalculated his sentence and makes some judicial-bias arguments.
United States v. James, 590 F.2d 575 (5th Cir. 1979).
United States v. Enright, 579 F.2d 980 (6th Cir. 1978); see also United States v. Tomes, 3:16-CR-00113-TBR, 2018 WL 616146, *7 (W.D. Ky. Jan. 29, 2018) (“[A] pretrial hearing ‘to determine the admissibility of any alleged co-conspirator statements'... is known as a James hearing or, in the Sixth Circuit, an Enright hearing.”).
Because Montgomery files pro se, the Court liberally construes his motions.
Boag v. MacDougall, 454 U.S. 364, 365 (1982) (per curiam)
First, the Federal Civil Procedure Rules do not apply to criminal proceedings. So, the relief available to civil litigants under Rules 59 and 60 are unavailable to criminal defendants. Similarly, an Enright hearing gives only a pretrial procedure to decide whether the Court will admit certain conspiracy evidence-not a postconviction-relief procedure.
Instead, a criminal defendant like Montgomery, who asks the Court to “vacate ... or correct his sentence”based on errors in the proceedings, seeks relief under § 2255. The Court therefore construes Montgomery's motion as a new § 2255 motion.
Doc. 151 at 20 (PageID 1652) (Montgomery's Motion). Montgomery also quotes at length the § 2255 standard. See Id. (quoting Pough v. United States, 442 F.3d 959 (6th Cir. 2006)).
Montgomery has filed one § 2255 motion already. This Court therefore cannot consider any second-or-successive motion unless the Sixth Circuit certifies that the new motion contains newly discovered, qualifying evidence or a new constitutional rule. So, the Court transfers this motion to the Sixth Circuit.
See 28 U.S.C. § 2255(h).
The Court will grant Montgomery's motion for an attorney. Montgomery has been diagnosed with a litany of mental-health conditions that may make it difficult for Montgomery to pursue this collateral attack pro se.
See Doc. 68 ¶¶ 69-70 (PageID 434) (Presentence Investigation Report).
For the above reasons, the Court GRANTS Montgomery's motion for an attorney and TRANSFERS the second-or-successive § 2255 motion to the Sixth Circuit for certification.
IT IS SO ORDERED.