United States District Court, N.D. Alabama, Middle Division
ALFRED P. MONTGOMERY, Petitioner,
WARDEN KAREN CARTER and the ATTORNEY GENERAL OF THE STATE OF ALABAMA, Respondents.
MADELINE HUGHES HAIKALA UNITED STATES DISTRICT JUDGE
a 28 U.S.C. § 2254 habeas corpus case. Petitioner Alfred
P. Montgomery, a former Alabama state prisoner proceeding
pro se, challenges his December 11, 2015 probation
revocation by the Circuit Court of St. Clair County, Alabama.
(Doc. 1). In particular, Mr. Montgomery alleges that his
probation was illegally revoked because (1) he unlawfully was
required to pay $22, 000 in restitution or be remanded to
custody, (2) his counsel was ineffective in that he did not
adequately contest the allegations, and (3) his due process
rights were violated when his probation was revoked while he
was not present and he had not waived his right to be at the
hearing. (Doc. 1, pp. 5-9). The respondents argue that Mr.
Montgomery's petition is barred by the one-year statute
of limitations, is procedurally defaulted, and is without
merit. (Doc. 5, pp. 4-8).
November 30, 2017, the magistrate judge entered a report in
which he recommended that the Court dismiss this action
because Mr. Montgomery's claims are procedurally
defaulted. (Doc. 14). The magistrate judge notified the
parties of their right to object within 14 days. (Doc. 14,
pp. 10-11). On December 12, 2017, Mr. Montgomery filed
objections to the report and recommendation. (Doc. 16).
party objects to a report and recommendation, the district
court must “make a de novo determination of those
portions of the report or specified proposed findings or
recommendations to which objection is made.” 28 U.S.C.
§ 636(b)(1)(B)-(C). The Court reviews de novo legal
conclusions in a report and reviews for clear error factual
findings to which no objection is made. Garvey v.
Vaughn, 993 F.2d 776, 779 n.9 (11th Cir. 1993); see
also LoConte v. Dugger, 847 F.2d 745, 749 (11th Cir.
1988); Macort v. Prem, Inc., 208 Fed.Appx. 781, 784
(11th Cir. 2006). A district court “may accept, reject,
or modify, in whole or part, the findings or recommendations
made by the magistrate judge.” 28 U.S.C. §
Montgomery objects to the magistrate judge's finding that
he (Mr. Montgomery) did not exhaust his state court remedies
before he filed his federal habeas petition. Mr. Montgomery
states that the “Attorney General wrongly asserted that
[he] did not file a Rule 32 petition addressing his issues in
the St. Clair County Circuit Court, ” he has filed an
attorney malpractice action regarding his counsel's
failure to file an appeal from his probation revocation, and
he has filed a malicious prosecution claim against the St.
Clair County District Attorney. (Doc. 16, pp. 1-2). According
to Mr. Montgomery, these efforts satisfy the exhaustion
Montgomery has not met the exhaustion requirement. He did not
present his constitutional challenges to his probation
revocation through one complete round of state court
post-conviction proceedings, and he did not appeal his
revocation. See O'Sullivan v. Boerckel, 526 U.S.
838, 845 (1999); Mauk v. Lanier, 484 F.3d 1352, 1357
(11th Cir. 2007). When a claimant does not exhaust his state
court remedies before he files a federal habeas petition and
the time in which to pursue those state remedies has expired,
as is the situation in this case, the claim is procedurally
defaulted, and a federal court may not review the claim.
See Coleman v. Thompson, 501 U.S. 722, 735 n.1
(1991); McNair v. Campbell, 416 F.3d 1291, 1305
(11th Cir. 2005). Accordingly, the Court overrules Mr.
reviewed and considered the materials in the docket in this
case and state court records not contained in the docket in
this case, the Court adopts the magistrate judge's report
and accepts his recommendation.
Court will enter a separate order consistent with this
 The Court notes that if Mr. Montgomery
were able to establish that he was placed in jail solely
because he could not afford to make his restitution payments,
then, as Mr. Montgomery pointed out in his objection, he
might indeed have a valid constitutional challenge to his
incarceration under Bearden v. Georgia, 461 U.S. 660
(1983), and Tate v. Short, 401 U.S. 395 (1971). Had
Mr. Montgomery presented that constitutional challenge to the
revocation of his probation through one complete round of
state court proceedings, then he would be in a better
position to ask this Court to consider the merits of his
challenge. This Court may not consider the constitutional