GARY L. QUIGG, Petitioner,
JIM SALMONSEN, Acting Warden of the Montana State Prison; the MONTANA BOARD OF PARDONS & PAROLE; and the STATE OF MONTANA, Respondents.
Quigg petitions for habeas corpus relief from his alleged
unlawful imprisonment and restraint because of a 2017 parole
revocation by the Board of Pardons and Parole (Board). He
includes a memorandum and supporting documents.
1969, a jury found Quigg guilty of murder in the first
degree, and the Thirteenth Judicial District Court sentenced
him to life imprisonment. State v. Quigg, 155 Mont,
119, 121-22, 467 P.2d 692, 693-94 (1970). Quigg has been
granted parole several times, including a release from Montana
State Prison (MSP) in 1993, followed by revocation of his
parole in 1996, and his parole in May 2006, Quigg contends
that his rights under the Montana and United States
Constitutions were violated during his on-site and parole
revocation hearings leading to his 2017 revocation. Quigg
first contends that the on-site hearing was improper because
he could not present his witnesses due to the hearing's
location in the jail. He explains that following his arrest
on September 15, 2015, he received from his Probation and
Parole Officer (P.O.) a copy of the Report of Violations
(ROV), which listed the alleged parole violations,
specifically, Rule 8 (Laws and Conduct) and Rule 9 (Illegal
Drug Use). Quigg states that, in response, he "completed
a form specifying the names of witnesses he wished to call in
his behalf and gave [the] same to [his] P.O....." He was
later informed that the on-site hearing would be held at the
Yellowstone County Detention Facility, and learned at the
hearing that the facility's commander had refused
attendance to his witnesses. Quigg asserts that this denial
was "in direct disobedience of clearly established
United States Supreme Court law on subject as outlined in
Morissey v. Brewer.''' 408 U.S. 471, 92
S.Ct. 2593 (1972). He further challenges the underlying basis
of the ROV, and he asserts various anomalies with this
set forth the nature of the process that is due in a parole
revocation proceeding, which has been codified in statute by
many states. Recognizing that "the liberty [of a
parolee] is valuable and must be seen as within the
protection of the Fourteenth Amendment[, ] [i]ts termination
calls for some orderly process, however informal."
Morissey, 408 U.S. at 482, 92 S.Ct. at 2601. In one
of Quigg's prior proceedings, we explained that this
Court has followed the requirements of Morissey:
In Sage [v. Gamble, 279 Mont. 459, 465, 929
P.2d 822, 825 (1996)], we adopted the United States Supreme
Court's reasoning that "due process in the context
of parole does not require 'repeated adversary hearings.
. . .'" Moreover, we explained "at minimum, ...
the prisoner be provided an opportunity to be heard and a
written statement explaining why he was denied parole."
Quigg v. Slaughter, 2007 MT 76, ¶ 45, 336 Mont.
474, 154 P.3d 1217 (citations omitted); see also
McDermott v. Mahoney, 2001 MT 89, ¶¶ 10-11,
305 Mont. 166, 24 P.3d 200 (noting the flexible nature of due
Morissey held that the process required, first, a
finding of a parole violation based on verified facts to
support the revocation. "What is needed is an [initial]
informal hearing structured to assure that the finding of a
parole violation will be based on verified facts and that the
exercise of discretion will be informed by an accurate
knowledge of the parolee's behavior."
Morissey, 408 U.S. at 484, 92 S.Ct. at 2601. This
process has been codified in Montana statutes. Sections
46-23-1001 through 46-23-1032, MCA (2015). About the
subsequent parole revocation hearing, Morissey held
that "[t]he parolee must have an opportunity to be heard
and to show, if he can, that he did not violate the
conditions, " but that the inquiry is a narrow one.
Morissey, 408 U.S. at 488-89, 92 S.Ct. at 2603-04.
46-23-1024(2), MCA (2015), provides that an initial hearing
after an arrest "is an on-site hearing and must be held
to determine whether there is probable cause or reasonable
grounds . . . ." Further, the parolee "must be
given notice of the hearing and must be allowed to appear and
speak in the parolee's own behalf and introduce relevant
information to the hearings officer." Section
46-23-1024(2), MCA (2015). Quigg was informed of the reasons
for his arrest and was also provided a copy of the ROV. He
admits that he was aware of the on-site hearing, and that he
had the opportunity to appear and speak for himself. Quigg
also received a copy of the Summary of On-Site Hearing as
prepared by the Hearings Officer. Section 46-23-1024(3), MCA
(2015). Quigg was thus given proper notice of the proceeding
and the opportunity to participate.
argues that the denial of the attendance of his witnesses
violated Morissey, Although not expressly addressed
in statute, witness participation is addressed in Montana by
The parolee may have witnesses attend the on-site hearing,
but only //they witnesses have relevant testimony to
present concerning whether the parolee did or did not violate
the conditions of release on parole, and only if the
witnesses can qualify to enter the correctional facility if
the hearing is held in a secure facility.
R. M. 20.25.801(6) (2012) (emphasis added). The Hearings
Officer noted that the attendance of Quigg's witnesses,
who were likewise detained at the facility, was denied by the
detention facility commander for security concerns, which is
an exception to witness attendance stated in Rule 801(6).
Consequently, the hearing officer contacted Quigg's
witnesses in person and offered to take their recorded or
written statements to be presented at the hearing. One
written statement from a witness was received and read during
the proceeding. Quigg appeared at the on-site hearing with
counsel. After consideration of the process given to Quigg,
we conclude that his complaints about on-site hearing lack
merit. The hearing officer properly found that probable cause
had been established and recommended "to hold the
parolee for the final decision of the board . . .."
Section 46-23-1024(3), MCA (2015).
Parole Revocation Hearing
was placed in MSP on October 8, 2015, pending a hearing
before the Board. The initial hearing was scheduled for
October 30, 2015, but was continued to November 24, 2015. At
that time, the Board granted his request for counsel, and
continued the hearing. Later, on September 19, 2017, the Board
rescinded its order appointing counsel for Quigg.
questions the delay of his hearing from October to November
2015. Quigg argues the Board's decision to rescind its
earlier order appointing counsel was "an indication of
bad faith, malice and ill will directed toward [him] as a
result of having filed previous successful litigation against
the Board." He contends that his subsequent parole
denial after his appearance before the Board was a waste of
taxpayer money, and that he should have been
"re-paroled" despite his federal ...