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Quigg v. Salmonsen

United States District Court, D. Montana, Helena Division

January 7, 2019

GARY L. QUIGG, Petitioner,
v.
JIM SALMONSEN, MONTANA BOARD OF PARDONS AND PAROLE, STATE OF MONTANA, ATTORNEY GENERAL OF THE STATE OF MONTANA, Respondents.

          ORDER AND FINDINGS AND RECOMMENDATIONS OF UNITED STATES MAGISTRATE JUDGE

          John Johnston United States Magistrate Judge

         This case comes before the Court on Petitioner Gary L. Quigg's application for writ of habeas corpus under 28 U.S.C. § 2254. Quigg is a state prisoner proceeding pro se.

         I. Motion to Strike

         On November 9, 2018, the Respondents' filed a "Notice of Change in Custody," (Doc. 15), advising that Court that in January of this year, Mr. Quigg would be released on parole to his federal detainer to begin serving his federal sentence. See, (Doc. 15-1.) In response, Quigg filed a Motion to Strike the filing, arguing that it was non-responsive and irrelevant. (Doc. 16.) As discussed below, Quigg's custodial status is entirely relevant to this Court's review of its own jurisdiction, as well as to the overall resolution of the present habeas petition. Accordingly, Quigg's motion to strike will be denied.

         II. 28 U.S.C. § 2254 Petition

         In the instant petition, Quigg challenges his 2017 parole revocation. He contends he was denied a fair hearing in the state court system and that the Montana Supreme Court's denial of his state habeas petition challenging the 2017 revocation and underlying proceedings "was contrary to, or involved an unreasonable application of, clearly established federal law, as determined by the Supreme Court of the United States." (Doc. 1 at 2.) Quigg alleges constitutional irregularities occurred during his initial on-site hearing, id. at 3-7, as well as during subsequent revocation proceedings held at the Montana State Prison in 2015 and in 2017. Id. at 7-10.

         As explained more fully below, Quigg's claims should be dismissed as moot.

         A. Procedural History

         In 1969, following a jury trial in Montana's Thirteenth Judicial District, Quigg was found guilty of first degree murder. See, State v. Quigg, 155 Mont. 119, 121-22, 467 P.2d 692, 693-94 (1970). Quigg was granted parole several different times. This Court is familiar with Quigg and has previously addressed challenges made to his prior revocations of sentence by the Montana Parole Board.[1] Quigg now seeks to challenge the 2017 revocation of his parole.

         In a state habeas action, the Montana Supreme Court summarized Quigg's preliminary proceedings follows:

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 v. Salmonsen, OP 18-0098, Or. at 1-2 (Mont. Mar. 13, 2018).

         Following Quigg's onsite hearing at the Yellowstone County Detention Center, a finding of probable cause was made. On October 8, 2015, Quigg was then transferred to the Montana State Prison for his revocation hearing. Id. at 4. The revocation hearing was scheduled for October 30, 2015, but was subsequently continued to November 24, 2015. Id. The Board then granted Quigg's request for counsel and the hearing was continued a second time. See e.g., (Doc. 1 at 7-8; Doc. 1-1 at 6)

         On December 3, 2015, an indictment was filed in this Court, charging Quigg and two others with: Conspiracy to Possess with Intent to Distribute Methamphetamine, Possession with Intent to Distribute Methamphetamine, and Distribution of Methamphetamine. See, USA v. Quigg, CR 15-147-BLG-SPW. Quigg was taken out of state ...


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