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Montalto v. Mississippi Department of Corrections

United States Court of Appeals, Fifth Circuit

September 11, 2019

STEPHEN DANIEL MONTALTO, Petitioner - Appellee
v.
MISSISSIPPI DEPARTMENT OF CORRECTIONS; PELICIA HALL, COMMISSIONER, MISSISSIPPI DEPARTMENT OF CORRECTIONS, Respondents - Appellants

          Appeal from the United States District Court for the Southern District of Mississippi

          Before DAVIS, HIGGINSON, and WILLETT, Circuit Judges.

          STEPHEN A. HIGGINSON, CIRCUIT JUDGE:

         Mississippi inmate Stephen Montalto filed a § 2254 petition for habeas relief seeking reinstatement of his earned-release supervision (ERS) and trusty time. Montalto alleged that the Mississippi Department of Corrections (MDOC) had groundlessly revoked his ERS and trusty time in violation of due process. The district court ordered respondents MDOC and Commissioner Marshall Fisher to produce transcripts relevant to MDOC's revocation of Montalto's ERS and trusty time. Respondents, through the Mississippi Attorney General's Office, informed the district court that no such transcripts existed. Eventually, respondents clarified that the relevant proceedings had been recorded, but that the audio recordings were lost or destroyed.

         The district court dismissed the petition for failure to exhaust state remedies and denied Montalto's unopposed motions for sanctions and contempt. Nevertheless, the district court criticized MDOC and its counsel for disregarding orders for production and not properly investigating the circumstances of Montalto's revocations. Respondents filed a motion to amend, arguing that the district court's criticism was unfounded and requesting the district court to amend its order under Rules 52(b) and 59(e). The district court denied the motion. Respondents timely filed a notice of appeal as to portions of the district court's order that criticized counsel, as well as the district court's denial of their motion to amend.

         Our court has held that judicial criticism amounting to an actual finding of attorney misconduct is directly appealable. In this case, we are unable to determine whether the district court made actual findings of professional misconduct. Mindful that "one's professional reputation is a lawyer's most important and valuable asset," Walker v. City of Mesquite, Tex., 129 F.3d 831, 832 (5th Cir. 1997), we remand and instruct the district court to clarify its findings, if any, as to counsel's professional misconduct.

         I.

         In September 2008, Montalto pleaded guilty to aggravated assault and kidnapping and was sentenced to serve twenty years in MDOC's custody. See Montalto v. State, 119 So.3d 1087, 1092 (Miss. Ct. App. 2013). Montalto's kidnapping offense was based on his abduction of a two-year-old child and was therefore a sex offense under Mississippi law. Miss. Code Ann. § 45-33-23(h)(i).

         On December 20, 2014, MDOC released Montalto from incarceration on earned-release supervision. Miss. Code. Ann. § 47-5-138. ERS is a program under which inmates may secure an early release but "retain inmate status and remain under jurisdiction of the department" until their sentences expire. Id. Inmates who violate a condition of ERS may be subject to revocation and re-incarceration. Id. In anticipation of being released on ERS, on December 4, 2014, Montalto had signed a sex offender registration form. On December 5, 2014, MDOC had issued Montalto a "Certificate of Earned Release Supervision" indicating that Montalto was approved to live with his mother in Brandon, Mississippi.

         On December 22, 2014, Montalto attempted to register as a sex offender in Rankin County but was informed that he could not stay at his mother's residence. Rankin County notified MDOC that Montalto's proposed address failed to comply with sex offender guidelines. Assisted by Hinds County officers, Montalto secured housing that same day at the Billy Brumfield House and on January 7, 2015, moved to the Exodus House. However, on January 9, MDOC issued an arrest warrant and a Rule Violation Report (RVR) based on the fact that Montalto's initial "[r]esidence was denied by Rankin County Sheriff's Office on the law of Sex Offender Registry." Montalto was reincarcerated that day.

         On January 23, Montalto learned that his "trusty status" had been revoked. Trusty status is a classification that allows offenders to receive sentence reductions for participating in approved programs such as classes or work projects. Miss. Code. Ann. § 47-5-138.1. Montalto had accumulated several years of trusty time, for instance, by working as a library orderly and taking classes.[1] On January 29, Montalto attended a revocation hearing where he was found guilty of the housing violation alleged in his RVR. Montalto appealed to MDOC's Administrative Remedy Program, which informed him that his kidnapping offense was a sex offense that rendered him ineligible for ERS or his years of previously accumulated trusty time.[2] See Miss. Code. Ann. § 47-5-139 (providing that an inmate "convicted of a sex crime" is not eligible for ERS); Miss. Code. Ann. § 47-5-138.1 (providing that an inmate "convicted of a sex crime" is not eligible for reduction of sentence based on trusty status).

         II.

         In April 2015, proceeding pro se, Montalto filed suit under 42 U.S.C. § 1983 alleging that MDOC's actions violated due process and seeking, among other relief, reinstatement of his trusty time and ERS. Montalto's complaint was liberally construed as a petition for habeas relief under 28 U.S.C. § 2254, and a new case was opened in June 2015 to address the habeas claims separate from Montalto's § 1983 claims. Only Montalto's habeas petition is before us in this appeal.

         A. The magistrate's production order

         On September 23, 2015, the magistrate issued an order requiring respondents to file a responsive pleading within twenty days. The order directed respondents to file "full and complete transcripts of all proceedings arising from the charge of violation of Earned Release Supervision against Petitioner, as well as the revocation of Petitioner's earned time credits."

         Respondents, through the Mississippi Attorney General's Office, timely filed a motion to dismiss, arguing that federal due process does not protect an inmate's interest in trusty status and ERS, and that Montalto had failed to exhaust state remedies. The motion to dismiss did not assert that because Montalto was a sex offender, he was never entitled to trusty status or ERS. Montalto's traverse argued that the transcript of his revocation hearing would lend support to his due process claims. Montalto explained that his revocation hearing had been "taped and logged under CNQ side B," and asked the magistrate to "hold the Respondents in contempt of Court for willful failure to comply with its order" to produce transcripts.

         On August 3, 2016, the magistrate issued a report and recommendation. The magistrate recommended granting respondents' motion to dismiss because Montalto had failed to state a constitutional claim and had not exhausted state remedies. "Likewise, Petitioner's Motion for Adjudication of Contempt . . . should be denied." Montalto timely filed objections to the R&R, again arguing that transcripts were relevant because they would show that "the finding of guilt had no factual basis" and "that [Montalto's] housing was not even considered in finding him guilty" of a rule violation.

         B. The district court's October 2016 production order

         On October 19, 2016, the district court issued its first order in the case. The district court noted that respondents "did not comply" with the magistrate's order to file "full and complete transcripts." "Therefore, it is ordered that defendants file full and complete transcripts of all proceedings arising from the charge of violation of Earned Release Supervision against Petitioner, as well as the revocation of ...


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