September 17, 2013
JOHN MATTHEW YZAGUIRRE, Petitioner,
SHERIFF ED LESTER, BUTTE SILVERBOW COUNTY PROBATION AND PAROLE, MONTANA DEPARTMENT OF CORRECTIONS, Respondents
John Matthew Yzaguirre (Yzaguirre) has filed an Emergency Motion for Action by MT (sic) Supreme Court (Emergency Motion). On September 11, 2013, Yzaguirre filed a Petition for a Writ of Habeas Corpus (Petition) in the above cause.
In the Emergency Motion, Yzaguirre alleges that the DOC and Butte Probation and Parole gave him notice of an onsite hearing on September 12, 2013 that is scheduled for tomorrow, September 18, 2013 at 10:00 a.m. in the Butte Silverbow Detention Center. By conducting the hearing, he claims the DOC and Probation and Parole intend to violate his due process rights and that this Court has exclusive jurisdiction over this matter based upon the petition for a writ of habeas corpus he has filed in this cause.
Yzaguirre claims in his Petition that he was arrested illegally on August 17, 2013 pursuant to a false report of violation of his parole. Yzaguirre contends that the Report of Violation dated September 12, 2013, which was served upon him, must be suppressed as evidence because it violates his due process rights and was not served upon him or the Sheriff within 12 hours of his arrest. Other than the jurisdictional argument Yzaguirre raises regarding his parole hearing on September 18, 2013, Yzaguirre raises essentially the same allegations in both his emergency motion and petition.
Yzaguirre was serving a five-year prison sentence for a 2009 robbery conviction when he was granted a parole. It appears that in his emergency motion, Yzaguirre is asking this Court to restrain regular proceedings that are being conducted as prescribed in statute. Having reviewed §§ 46-23-1023-1024, MCA, Yzaguirre has not persuaded us that he has interpreted the law correctly. Section 46-23-1023(2), MCA, references delivery of a written statement of the alleged parole violation within 12 hours of arrest when the arrest is without a warrant. Yzaguirre was arrested pursuant to a warrant issued by the district court and therefore the 12-hour provision referenced above is inapplicable. Further, § 46-23-1024, MCA, sets forth the procedures for Probation and Parole to satisfy the requirements of an on-site hearing. Yzaguirre has not established that the procedures contained in § 46-23-1024, MCA, have been violated.
We conclude, therefore, that both Yzaguirre's Emergency Motion and Petition should be denied. Based upon the foregoing, we find good cause for the following
IT IS ORDERED that the motion for emergency action by the Supreme Court is DENIED.
IT IS FURTHER ORDERED that the petition for a writ of habeas corpus is DISMISSED.
The Court is directed to notify and provide copy of this Order to each of the parties hereto by the most expeditious means.