United States District Court, D. Montana, Helena Division
GARY L. QUIGG, Petitioner,
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
Johnston United States Magistrate Judge
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.
Motion to Strike
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.
28 U.S.C. § 2254 Petition
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.
explained more fully below, Quigg's claims should be
dismissed as moot.
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. Quigg now seeks
to challenge the 2017 revocation of his parole.
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).
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)
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 ...