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Buehl v. Fox

United States District Court, D. Montana, Helena Division

January 9, 2019

LANNY WADE BUEHL, Petitioner,
v.
TIM FOX; ATTORNEY GENERAL OF THE STATE OF MONTANA, Respondents.

          ORDER AND FINDINGS AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

          John Johnston United States Magistrate Judge.

         This matter comes before the Court on Mr. Buehl's habeas petition filed pursuant to 28 U.S.C. § 2254. (Doc. 1.).[1] Buehl is a state prisoner proceeding pro se.

         Buehl generally alleges that his right to Due Process was violated during his state revocation proceedings. Id. at 4, ⁋ 13 (A)(i). Buehl asserts he was unlawfully transported from Polson, Montana, where he was supervised, to Kalispell, Montana, where his preliminary on-site hearing was held. Id. Due to this transfer, Buehl's supervising parole officer did not attend the preliminary hearing and Buehl was unable to confront him regarding one of the purported violations. Id. Buehl asks this Court to order his immediate release to parole. Id. at 7, ¶ 16.

         I. Motion to Proceed in Forma Pauperis

         Buehl has applied to proceed in forma pauperis. After reviewing the motion and supporting account statement, it appears Buehl has sufficiently shown he cannot afford to pay all costs that may be associated with this action. The motion to proceed in forma pauperis (Doc. 2) will be granted.

         II. Procedural History

         The Montana Supreme Court summarized Buehl's state court history as follows:

[O]n May 9, 2011, Buehl entered a plea of nolo contendere to felony assault with a weapon in the Ninth Judicial District Court, Glacier County. The District Court imposed a ten-year prison term with all of the time suspended. A few months later, the State filed a petition to revoke because of violations of several probationary terms. Buehl denied all violations, and the court held an evidentiary hearing on September 8, 2011. The court found that Buehl had violated two of his conditions. The court subsequently revoked his suspended sentence and sentenced him to a ten-year prison term. The court noted that Buehl was entitled to 301 days of credit for time served.
Citing to Morrissey v. Brewer, Buehl now argues that his due process rights have been violated for his initial hearing after arrest as a parolee. 408 U.S. 471, 92 S.Ct. 2593 (1972). He asserts that he was arrested and detained on February 1, 2018, and that his preliminary hearing occurred on February 7, 2018 in the Flathead County Jail, which was not where “the alleged violations occurred” in Polson, Montana. He maintains constitutional rights' violations for these reasons: (1) his Probation and Parole Officer was not present at the hearing for him to confront and cross-examine, and (2) he was not given an on-site hearing in Polson within five days of his arrest and detention, pursuant to § 46-23-1024(2), MCA.
Parole revocation involves certain due process requirements. The United States Supreme Court has held that following arrest, a parolee has a right to an administrative on-site hearing at “the state institution” to determine if reasonable grounds for revocation exist. Morrissey, 408 U.S. at 485, 92 S.Ct. at 2602. If the state institution is too far, the court noted that “due process would seem to require that some minimal inquiry be conducted at or reasonably near the place of the alleged parole violation or arrest and as promptly as convenient after arrest while information is fresh and sources are available.” Morrissey, 408 U.S. at 485, 92 S.Ct. at 2602. The high court specifically stated that parole revocation “is a narrow inquiry; the process should be flexible enough…” Morrissey, 408 U.S. at 489, 92 S.Ct. at 2604. The Supreme Court emphasized that a parole revocation does not equate to a criminal prosecution. Morrissey, 408 U.S. at 489, 92 S.Ct. at 2604.
In Montana, the parole revocation process has been codified in both statues and administrative rules. Sections 46-23-1021, 46-23-1023, and 46-23-1025, MCA; Admin. R. Mont. 20.25.801 (2016). Pertinent here is § 46-23-1024(2), MCA, which sets forth the process for the on-site hearing to establish probable cause.
The initial hearing is an onsite hearing but may be conducted via interactive videoconference and must be held to determine whether there is probable cause or reasonable grounds to believe that the arrested parolee has committed acts that would constitute a violation of parole conditions. An independent officer, who need not be a judicial officer, shall preside over the hearing. The hearing must be conducted at or reasonably near the place of the alleged parole violation or arrest and within 5 days after arrest. The parolee must be given notice of the hearing and must be allowed to appear and speak in the parolee's own behalf and introduce relevant information to the hearings officer. Section 46-23-1024(2), MCA.
Upon review, Buehl is not entitled to habeas corpus relief or his release because his due process rights have not been violated. Montana's statutes only provide that a parolee may have witnesses, not that the parolee may confront his Probation and Parole Officer since the basis for the arrest is in a written report. Sections 46-23-1023(2) and 46-23-1024(3), MCA; see also Morrissey, 408 U.S. at 489, 92 S.Ct. at 2604. Section 46-23-1024(2), MCA reads that “[t]he hearing must be conducted at or reasonably near the place of the alleged ...

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