United States District Court, D. Montana, Missoula Division
FINDINGS AND RECOMMENDATION OF UNITED STATES
Jeremiah C. Lynch United States Magistrate Judge.
matter comes before the Court on Sen Dean Ogle's habeas
petition filed pursuant to 28 U.S.C. § 2254. (Doc. 1.).
Ogle is a state prisoner proceeding pro se.
of the Rules Governing Section 2254 Cases in the United
States District Courts requires courts to examine the
petition before ordering the Respondent to file an answer or
any other pleading. The petition must be summarily dismissed
"[i]f it plainly appears from the face of the petition
and any attached exhibits that the petitioner is not entitled
to relief in the district court." For the reasons set
forth herein, Ogle's petition should be denied.
generally alleges that the Montana Supreme Court erred in
finding that the Persistent Felony Offender (PFO) statute, as
amended in 2017, did not retroactively apply to his 1991
conviction and sentence. (Doc. 1 at 4-6.) He also contends
the Montana Supreme Court erred by finding that Nichols
v. U.S., U.S.__, __, 136 S.Ct. 1113 (2016), did not
apply to the condition of his state sentence requiring him to
register as a sex offender.. Id. at 7-8.
asks this Court to order his "full release from
custody," including any probation/parole or monetary
requirements, relative to both of his active state sentences.
Id. at 10, If 16.
Montana Supreme Court summarized Ogle's state court
procedural history as follows:
In 1991, a jury found Ogle guilty of sexual assault in the
Twentieth Judicial District Court, Lake County. The District
Court designated him a PFO and sentenced him to the Montana
State Prison for sixty years with twenty years suspended. He
appealed, and this Court affirmed. State v. Ogle,
255 Mont. 246, 247, 841 P.2d 1133, 1133 (1992).
Ogle was granted parole in 2009. The next year, however, he
was arrested for various parole violations, and his parole
was revoked after his return to prison. Ogle discharged his
prison term on September 17, 2012, and began serving his
suspended term. On June 9, 2016, the Lake County District
Court revoked Ogle's 1991 sentence for felony sexual
assault because Ogle had violated his probationary
conditions. Ogle received a fifteen-year commitment to the
Department of Corrections with ten years suspended. He did
While Ogle is correct that the 2017 Montana Legislature
repealed § 46-18-501, MCA, which defines PFO, he is
mistaken about his immediate release. 2017 Mont. Laws, Ch.
321, Sec. 40. The definition of PFO still exists and is found
in § 46-1-202(18), MCA. We remind Ogle that he was
designated as a PFO and sentenced under the 1989 version of
Montana's statutes. "Ogle was tried by a jury and
convicted of sexual assault, a felony, pursuant to §
45-5-502, MCA (1989)[.]" Ogle, 255 Mont, at
247, 841 P.2d at 1133. "We have consistently held that a
person has the right to be sentenced under the statutes which
are in effect at the time of the offense." State v.
Tracy, 2005 MT 128, ¶ 16, 327 Mont. 220, 113 P.3d
297 (citations omitted). The 1989 statutes, not the 2017
statutes apply to Ogle because Ogle committed the offense in
1990. Tracy, ¶ 16.
Ogle has not demonstrate that his constitutional rights have
been violated either. The Nichols case refers to the
application of federal law to a registered sex offender.
Nichols, __U.S. at__, 136 S.Ct. at 115. Along with
the federal government, every state has enacted its version
of a sex offender registry and applicable statutes.
Nichols, __U.S. at__, 136 S.Ct. at 116 (citations
omitted). The Nichols holding therefore does not apply to
Ogle who was sentenced under state law.
Ogle v. Fender, OP 17-0716, Or. at 1-2 (Mont. Dec.
Montana Supreme Court denied Ogle's petition finding that
he was not entitled to relief and was procedurally barred