petition for a writ of habeas corpus, Gordon Sellner claims
that his confinement is illegal because he has not been
granted parole to serve his three-year consecutive federal
sentence. Sellner requests that this Court direct the Board
of Pardons and Parole (Board) to grant him an appearance
before the Board.
is serving a life sentence and a consecutive ten-year term in
Montana State Prison (MSP) for 1995 Lake County convictions
of attempted deliberate homicide and use of a dangerous
weapon. The offenses occurred in June 1992. Sellner is
eligible for good time under the law in effect at that time.
He became eligible for parole on October 15,, 2011, after
serving fifteen years. See § 46-23-201(4), MCA
(1991) ("A convict serving a life sentence may not be
paroled under this section until he has served 30 years, less
the good time allowance provided for in 53-30-105.").
Sellner also was convicted of a federal offense and has a
consecutive federal sentence that will commence upon his
parole from MSP.
states that the Board has twice denied him parole, in 2011
and in 2016, as demonstrated in his attached Case
Dispositions. Sellner contends that the Board is violating
Montana's statutes because it "has given excess and
inappropriate weight to the 'Law Enforcement
Objections' criteria in determining whether to grant or
deny parole." He further contends that the Board did not
follow various statutory requirements pursuant to
§§ 46-23-201, 46-23-208, and 46-23-218, MCA. He
states that he did not know he could seek an earlier review,
such as annual instead of every five years, and that no
documents given to him provided this information.
parole statutes applicable to Sellner's claims are the
1991 version of Montana Code Annotated. See Sage v.
Gamble, 279 Mont. 459, 464, 929 P.2d 822, 824 (1996)
(1981 version of § 46-23-201, MCA, applies to Sage's
1982 conviction and sentence), and McDermott v.
McDonald, 2001 MT 89, ¶ 8, 305 Mont. 166, 24 P.3d
200 (McDermott committed his offenses in 1985 and 1986, and
the 1985 parole statutes apply). We have stated before that
"[p]arole ... is a discretionary grant of freedom from
incarceration." McDermott, ¶ 24. Even
though many of these statutes have changed since 1991, their
application yields the same result. Sellner has no statutory
entitlement to parole to the federal detainer. And this Court
has no authority to order an appearance for Sellner again
before the Board.
starting place, as Sellner references, is § 46-23-201,
MCA, which concerns prisoners eligible for nonmedical parole.
Section 46-23-201(5), MCA (1991), reads that:
A parole may be ordered under this section only for the best
interests of society and not as an award of clemency or a
reduction of sentence or pardon. A prisoner may be placed on
parole only when the board believes that he is able and
willing to fulfill the obligations of a law-abiding citizen.
46-23-202, MCA (1991), provides that the Board may
investigate the inmate prior to his parole hearing. This
section specifically states:
(1) Within the 2 months prior to his official parole
eligibility date, the board shall consider all pertinent
information regarding each prisoner, including the
circumstances of his offense, his previous social history and
criminal record, his conduct, employment, and attitude in
prison, and the reports of any physical and mental
examinations which have been made.
(2) Before ordering the parole of any prisoner the board
shall interview him.
Sellner cites 46-23-208, MCA (2017), which did not exist in
1991. Section 46-23-218, MCA (1991), governs the Board's
authority to adopt rules. "The board may adopt any other
rules it considers proper or necessary with respect to the
eligibility of prisoners for parole, the conduct of parole
hearings, and conditions to be imposed upon parolees."
Section 46-23-218, MCA (1991).
attached Case Dispositions show that in both its 2011 and
2016 denials the Board based its conclusions on the nature
and severity of offenses, multiple offenses, and strong
objection from criminal justice authorities and/or citizenry.
Each time, the Board noted that if Sellner were to be
released, it would affect the community because of "the
severity of the offense . . . ." The Board's reasons
in these dispositions reflect relevant statutory language.
See, e.g., "the circumstances of his
offense," under §46-23-201(1), MCA (1991), and
"only for the best interests of society" pursuant
to § 46-23-20 l(5)(b), MCA (1991). The Board may
consider these aspects along with "his previous social
history and criminal record, his conduct, employment, and
attitude in prison, and the reports of any physical and
mental examinations ..." under § 46-23-202(1), MCA
(1991). The Board both times commended Sellner on his
positive institutional conduct. The statute prescribes the
standards for release on parole, but "the Board retains
extremely broad discretion to determine when the statutory
criteria for early release have been met."
McDermott, ¶ 25.
pertinent Administrative Rules of Montana reiterate the
Board's discretion and set forth a process concerning a
request for earlier review. Admin. R. M. 20.25.402(6) (2012)
provides in part:
(6) Whenever the scheduled administrative review is over one
year away, the offender may submit to board staff a request
for early administrative review if the offender can show new
information or a change in ...