United States District Court, D. Montana, Helena Division
ORDER AND FINDINGS AND RECOMMENDATION OF UNITED
STATES MAGISTRATE JUDGE
Johnston United States Magistrate Judge.
matter comes before the Court on Mr. Buehl's habeas
petition filed pursuant to 28 U.S.C. § 2254. (Doc.
Buehl is a state prisoner proceeding pro se.
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,
Motion to Proceed in Forma Pauperis
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.
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 ...