United States District Court, D. Montana, Missoula Division
FINDINGS AND RECOMMENDATION OF UNITED STATES
Jeremiah C. Lynch United States Magistrate Judge.
17, 2017, Petitioner Randy Allen Dennison filed an action
under 28 U.S.C. § 2254. Dennison is a state prisoner
proceeding pro se.
challenges a judgment against him from the Eleventh Judicial
District, Flathead County, on December 10, 2015, following a
revocation of his 2005 felony Driving Under the Influence
sentence. (Doc. 1 at 2.)
events leading up to the December 2015 judgment which
Dennison challenges are somewhat convoluted, but important to
understanding the claims Dennison raises in the instant
petition. The Montana Supreme Court summarized the procedural
history as follows:
On May 18, 2000, Dennison pled guilty to burglary, a felony,
and was sentenced to 15 years with the Department of
Corrections (DOC) with 10 years suspended. That suspended
sentence was revoked on May 26, 2005, for probation
violations. On June 9, 2005, Dennison pled guilty to felony
Driving Under the Influence (2005 DUI). On July 14, 2005,
Dennison was sentenced to 10 years at Montana State Prison
with 5 years suspended for the 1999 burglary, and 13 months
with the DOC followed by 5 years suspended for the 2005 DUI.
The District Court vacated the July 14, 2005, sentence, and
on May 17, 2006, the District Court held a dispositional
hearing for both the 1999 burglary and the 2005 DUI. On June
22, 2006, the District Court filed a written judgment
sentencing Dennison to consecutive sentences of 10 years with
the DOC with 5 years suspended for the 1999 burglary, and a
13-month DOC commitment followed by a 5-year suspended term
for the 2005 DUI. On September 8, 2010, the State filed
petitions to revoke both of Dennison's suspended
sentences. On February 24, 2001, the District Court granted
the State's motion to dismiss the petition to revoke
Dennison's suspended sentence for his 2005 DUI because
Dennison's sentences were to run consecutively, and his
sentence for the 2005 DUI had not yet begun.
On May 5, 2011, the District Court held a revocation hearing
on Dennison's suspended sentence for the 1999 burglary,
at which Dennison admitted to violating conditions of his
suspended sentence. The District Court revoked the suspended
sentence and sentenced Dennison to a 5-year commitment to the
DOC. In the judgment and sentence dated June 6, 2011,
Dennison was granted 234 days credit for time served pending
the revocation of his suspended sentence, from September 14,
2010 to May 5, 2011, but denied credit for time served on
Dennison filed a Petition for Amended Judgment, Request for
Credit Time Served dated August 26, 2013. Dennison argued to
the District Court that he should receive credit for time
served while he was on probation for his 1999 burglary and
credit for time served for his 2005 DUI. On January 28, 2014,
the District Court denied Dennison's petition, citing the
June 6, 2011 judgment which expressly denied Dennison credit
for time served while on probation. The January 28, 2014
order did not specifically address Dennison's 2005 DUI.
State v. Dennison, 2015 MT 49N, ¶¶3-5,
(Mont. Feb. 17, 2015).
appealed from the January 2014 order, arguing he should have
been credited for time served while on probation for the
burglary, as well as credited for time in custody against the
DUI sentence. Id. at ¶6. The Court determined
Dennison was not entitled to time served on the 2005 DUI
offense because that sentence was not revoked. Id.
at ¶8. Because the district court had granted the
State's motion to dismiss the petition to revoke the DUI
sentence, thus the May 2011 revocation hearing dealt solely
with the 1999 burglary conviction. Id. And because
the 234 days Dennison spent incarcerated pending the
revocation hearing were properly credited toward his 1999
burglary sentence, the court concluded he was not entitled to
credit for the same time against his 2005 DUI conviction.
September 12, 2015, Dennison began serving his suspended time
on the 2005 DUI sentence. (Doc. 14-3 at 4.) On October 8,
2015, the Flathead County Attorney's Office filed a
Petition for Revocation of Dennison's suspended sentence.
(Doc. 14-2.) A hearing was held on November 19, 2015, during
which Dennison, appearing pro se, admitted to two of the
violations but denied the remainder. See e.g., (Doc.
14-7 at 18-19; 20-22.) The district court determined Dennison
was in violation of the probationary terms of his sentence
and revoked his sentence. See generally, (Docs.
14-4; 14-7 at 23-24.) A dispositional hearing was scheduled
for December 3, 2015.
the scheduled hearing, the parties could not agree on the
amount of credit for time served or on a recommended
disposition. See generally, (Doc. 14-8.) The hearing
was continued for one week. (Docs. 14-5; 14-8.) At the
disposition hearing, Dennison was committed to the Department
of Corrections for five years and the parties were informed
the Court would calculate the amount of credit for time
served due to Dennison and include it in the written
judgment. (Doc. 14-9 at 32-33.) The judgment credited
Dennison for 61 days served in custody pending the final
disposition of the revocation and also noted that Dennison
had previously received credit for 442 days from March 2,
2005 to May 17, 2006. (Doc. 14-10 at 2.)
filed a petition for habeas corpus relief in the Montana
Supreme Court. Dennison v. State, OP 16-0020, Pet.
(filed Jan. 11, 2016). Dennison argued he was entitled to
credit for time he spent on probation for the preceding
decade. Dennison apparently based this argument on his belief
that the Court's 2008 decision which purportedly
acknowledged Dennison's 1999 and 2005 conditions were
combined and the suspension of each was revoked in 2005.
Id. at 4-10. Dennison also advanced a double
jeopardy claim and argued that the trial court had mishandled
his revocation. Id. at 11-16. Additionally, Dennison
claimed the district court violated various judicial
standards, as well as his constitutional rights, during the
revocation proceedings. Id. at 17-28.
denying Dennison's petition, the Montana Supreme Court
determined Dennison was mistaken in his arguments and
specifically that he was "not entitled to any more time
served in any capacity since 2005." Dennison v.
State, OP 16-0020, Or. at 2 (Mont. Jan. 19, 2016). The
Court again reiterated that Dennison was not entitled to
credit against his DUI sentence because it was not, in fact,
revoked in 2011 and that the 2011 revocation dealt solely
with the 1999 burglary charge. Id. at 2-3. The Court
noted that the 234 days with which Dennison took issue were
properly credited against Dennison's 1999 Burglary
sentence. Id. at 3.
the Court determined Dennison's other claims were lacking
in merit because he had previously waived all constitutional
challenges when he pled guilty to the offenses in 2000 and
2005, respectively. Id. at 3. The Court also
concluded habeas was not the proper vehicle to challenge any
alleged mishandling of his case by the trial court.
Id. at 4.
also filed a direct appeal from the December 2015 order of
revocation, raising 30 separate issues. The Montana Supreme
Court noted that Dennison did not contend that the revocation
of the suspended DUI sentence itself was illegal or improper,
but that Dennison continued to question the denial of credit
for time served. State v. Dennison, 2017 MT 87N, Or.
at 2 (Mont. April 11, 2017). The Court, citing prior orders,
stated that it had clearly concluded Dennison "is not
entitled to any more time served in any capacity since
2005." Id., citing Dennison v. State, No. OP
16-0020, Or. (Mont. Jan. 19, 2016); State v.
Dennison, 2008 MT 344, 346 Mont. 295, 194 P.3d 704. The
court stated it would not decide issues that had previously
been decided in the past and flatly rejected Dennison's
contention that MCA §46-18-403, Montana's statute
dealing with credit for time served, was unconstitutional.
Id. at 2-3.
Court determined relative to the claims against the district
court, including alleged clerical errors in the revocation
order, a purported abuse of discretion by appointing stand-by
counsel for Dennison during the revocation proceedings, and
abuse of discretion by not providing Dennison with requested
copies of various documents, that Dennison had failed to
establish his substantial rights were affected. Accordingly,
Dennison was denied relief. Id. at 3.
claimed that he actually had discharged his 2005 DUI sentence
prior to the 2015 revocation proceedings. But the court held
it "was clear" that the burglary and DUI sentences
ran consecutively to one another, therefore, Dennison did not
discharge the DUI sentence prior to the 2015 revocation. The
district court properly sentenced Dennison, properly imposed
conditions upon him, and properly revoked the suspended
sentence. Id. at 3, citing Dennison v. Law,
No. OP 09- 0432, 2009 Mont. LEXIS 726 (Sept. 29, 2009). The
Court rejected any additional claims as waived, unsupported,
or previously decided.
alleges: (1) Mont. Code Ann. §46-18-403 is
unconstitutional and violates of the Fifth and Fourteenth
Amendments (Doc. 1 at 5-11); (1B) The 11th
Judicial District Court violated the Fifth and Fourteenth
Amendments and Montana Constitution Article 2, Sec. 17
(id. at 11); (2) The trial court judgment is illegal
because it does not contain credit for time served that was
granted in the Court's oral pronouncement of sentence on
December 10, 2015, in violation of Dennison's right to
due process (id. at 12); (3) the district
court's order of January 14, 2016, is illegal because it
does not contain credits for time served on a bailable
offense, where a judgment of imprisonment has been imposed in
violation of Dennison's right to due process
(id. at 12-13); (4) the district court entered an
illegal order dismissing the State's petition to revoke
on the DUI case on February 25, 2011, thus denying Dennison
jail credit, in violation of his right to due process
(id. at 14-15); (5) the district court violated
Montana law and the Judicial Code by ignoring Dennison's
repeated requests for file copies and full discovery in
violation of Dennison's right to due process
(id. at 15-16); (6) the district court violated
Dennison's right to due process by denying him the
opportunity to present evidence on his own behalf, including
mitigation evidence (id. at 17-20); (7) the written
judgment of January 14, 2016, is illegal by imposing
conditions of parole (id. at 21); (8) the written
judgment is illegal because it grants only 61 days served in
custody, but Dennison should be granted time served from
September 23, 2015, to December 10, 2015 (id. at
21); (9) the district court violated Dennison's right to
due process by using probation violations against him when he
had never been found guilty of said violations (id.
at 22); (10) Probation Officer McKee arrested Dennison
without probable cause or reasonable suspicion, in violation
of the Fourteenth Amendment, Fourth Amendment, and the
Montana Constitution (id. at 23-25); and, (11) The
Flathead County Attorney retaliated against Dennison because
he had successfully petitioned both the district court and
the Montana Supreme Court; this retaliation violated
Dennison's First and Fourteenth Amendment rights and
attempted to strip him of his right to appeal (id.