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Dennison v. Fletcher

United States District Court, D. Montana, Missoula Division

August 20, 2018

RANDY ALLEN DENNISON, Petitioner,
v.
M ICHAEL FLETCHER, ATTORNEY GENERAL OF THE STATE OF MONTANA, Respondents.

          FINDINGS AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

          Jeremiah C. Lynch United States Magistrate Judge.

         On July 17, 2017, Petitioner Randy Allen Dennison filed an action under 28 U.S.C. § 2254. Dennison is a state prisoner proceeding pro se.

         Dennison 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.)

         I. Procedural History

         The 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 That suspended sentence was revoked on May 26, 2005, for probation violations.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 probation.
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).

         Dennison 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. Id.

         On 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.[1]

         During 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.)

         Dennison filed a petition for habeas corpus relief in the Montana Supreme Court. Dennison v. State, OP 16-0020, Pet. (filed Jan. 11, 2016).[2] 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.

         In 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.

         Additionally, 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.

         Dennison 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.

         The 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.

         Dennison 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.

         II. Dennison's Claims

         Dennison 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. at 26-27).

         III. Analysis

         A. Deferential ...


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