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Ogle v. McTighe

United States District Court, D. Montana, Missoula Division

January 11, 2019

SEAN DEAN OGLE, Petitioner,
v.
WARDEN MCTIGHE; ATTORNEY GENERAL OF THE STATE OF MONTANA, Respondents.

          FINDINGS AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

          Jeremiah C. Lynch United States Magistrate Judge.

         This 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.

         Rule 4 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.

         I. Ogle's Claims

         Ogle 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.

         Ogle 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.

         II. Background

         The 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 The next year, however, he was arrested for various parole violations, and his parole was revoked after his return to prison.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 not appeal.
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. 19, 2017).[1]

         The Montana Supreme Court denied Ogle's petition finding that he was not entitled to relief and was procedurally barred ...


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