July 22, 2014
BILL GENE THOMAS, Petitioner,
LEROY KIRKEGARD, Warden, Montana State Prison, et al. Respondents.
Self-represented Petitioner Bill Gene Thomas has filed a petition for writ of habeas corpus, seeking relief from his parole eligibility restriction. In compliance with our Order dated May 19, 2014, the Attorney General has filed a response.
Thomas pleaded guilty to deliberate homicide on March 10, 1993. The Thirteenth Judicial District, Yellowstone County, sentenced him to 100 years in the Montana State Prison and added ten years for the use of a dangerous weapon. The District Court also imposed a parole eligibility restriction, which required Thomas to serve thirty years before he was eligible for parole.
Thomas argues that he is due a parole hearing, pursuant to § 46-18-202(2), MCA. Relying on this statute, Thomas states that his parole hearing should have happened at the seventeen and a half year mark, or before June, 2013. He claims that he has a vested interest in a parole hearing, and without this hearing, his due process and equal protection rights have been violated. Further, he argues that the District Court does not have the authority to impose a parole eligibility requirement.
The State responds that Thomas's petition should be denied because he received a valid sentence with the partial parole eligibility restriction. The State refers to Thomas's appeal where he challenged his parole restriction. State v. Thomas, 285 Mont. 112, 121-23, 946 P.2d 140, 145-47 (1997). The State maintains that a partial parole restriction is discretionary and that Thomas's thirty-year parole eligibility restriction does not make his sentence facially invalid. See State v. Kirkbride, 2008 MT 178, ¶¶17-19, 343 Mont. 409, 185 P.3d 340; State v. Rickman, 2008 MT 142, ¶¶31-33, 343 Mont. 120, 183 P.3d 49 and State v. Bullman, 2009 MT 37, ¶34, 349 Mont. 228, 203 P.3d 768. Further, the State maintains that a habeas proceeding is not available to attack the validity of a sentence when Thomas has exhausted the remedy of appeal. Section 46-22-101(2), MCA.
We agree that Thomas has not demonstrated a prima facie case for habeas corpus relief. Thomas received a valid sentence with a partial parole eligibility restriction, as we held in his previous appeal. He must serve the term of thirty years before he is eligible for parole. Consequently, Thomas is not incarcerated illegally. Therefore,
IT IS ORDERED that the petition for writ of habeas corpus is DENIED.
The Clerk is directed to provide copies of this Order to counsel of record and to Bill Gene Thomas, personally