United States District Court, D. Montana, Butte Division
FINDINGS AND RECOMMENDATION OF UNITED STATES
JEREMIAH C. LYNCH UNITED STATES MAGISTRATE JUDGE.
case comes before the Court on state pro se petitioner Cyle
Keith Kokot's application for writ of habeas corpus under
28 U.S.C. § 2254.
a conviction for Sexual Assault in Montana's Eighteenth
Judicial District, Gallatin County, Kokot was sentenced to
the Montana State Prison for 25-years, with 10 of those years
suspended. (Doc. 1 at l.) In 2018, Kokot became parole eligible
and made his initial appearance before the Montana Parole
Board ("the Board"). Id. Kokot's
parole was denied. Id. The Board advised Kokot to
obtain victim impact programming and complete any additional
programs available to him at the prison; Kokot was scheduled
to reappear before the Board in August of 2020.
same time Kokot filed his petition in this Court, he also
filed a nearly identical habeas petition in the Montana
Supreme Court. Cf, (Doc. 1) with, Kokot v. State, OP
18-0620, Pet. (filed Oct. 31, 2018). In both matters, Kokot
argued that his right to due process was violated when
Gallatin County Attorney Marty Lambert was allowed to make
"confidential" statements to the Board to which
Kokot was not given the opportunity to respond or defend
himself and that he has a reasonable expectation of parole
due to his compliance with administrative rules and
procedures. See e.g., (Doc. 1 at 1-2.) Kokot requests that he
be provided a new parole hearing and that the Gallatin County
Attorney's Office be prevented from continuing its
purportedly malicious activities. Id. at 2.
denying his petition, the Montana Supreme Court held Kokot
had neither a liberty interest nor a reasonable expectation
of parole because his crimes were committed after 1989.
Kokot v. State, OP 18-0620, Or. at 3 (Mont. Nov. 13,
2018) (citing Worden v. Board of Pardons and Parole,
1998 MT 168, ¶42, 289 Mont. 459, 962 P.2d 1157).
Court also determined Kokot had been provided a fair hearing.
Id. at 2. Under Montana law, the Board has broad
discretion to consider any relevant information regarding
each prisoner. This information includes: "the
circumstances of his offense, his previous social history and
criminal record, his conduct, employment and attitude in
prison, and the reports of any physical and mental
examination that have been made." Id. at 2
(citing McDermott v. McDonald, 2001 MT 89, ¶20,
305 Mont. 166, 24 P.3d 200, quoting §46-23-202, MCA
(1985)). The Court observed, under this broad grant of
authority, the Board was free to consider information from
any interested person, including criminal justice
authorities, a group to which County Attorney Lambert
belonged. Id. at 2. While Kokot may have not been
provided an opportunity to specifically rebut Lambert's
statements, Kokot was provided the opportunity to be heard
and provided with a written copy of the Board's decision
denying his parole. Id. at 2-3. Thus, due process
was not offended. Id. at 2.
the Court noted that the Board also has sole authority and
discretion to schedule parole hearings. Id. at 3.
Kokot's scheduled reappearance in 2020 did not affect the
length of the net 15-year sentence he was serving. In sum,
Kokot failed to demonstrate his incarceration was illegal.
explained below, because Kokot's claims do not survive
deferential review under the Antiterrorism and Effective
Death Penalty Act ("AEDPA"), his petition should be
Application of AEDPA
Kokot filed his federal habeas petition after April 24, 1996,
his petition is governed by the AEDPA, 28 U.S.C. §2254.
Woodford v. Garceau, 538 U.S. 202, 204 (2003). Under
§2254(d)(1), a federal court must deny habeas relief
with respect to any claim adjudicated on the merits in a
state court proceeding unless the proceeding "resulted
in a decision that was contrary to, or involved an
unreasonable application of, clearly established Federal law,
as determined by the Supreme Court of the United
federal review, there is a highly deferential standard for
state court rulings which "demands that state-court
decisions be given the benefit of the doubt." Renico
v. Lett, 559 U.S. 776, 773 (2010). The petitioner
carries the burden of proof under this standard, and it is
"difficult to meet." Cullen v. Pinholster,
563 U.S. 170, 182 (2011). For relief to be granted, "a
state court merits ruling must be so lacking in justification
that there was an error... beyond any possibility for fair
minded disagreement." Bemore v. Chappell, 788
F.3d 1151, 1160 (9th Cir. 2015).
the state and federal habeas petitions were filed
simultaneously, Kokot did not explain upon what basis he
found the Montana Supreme Court decision to be contrary to or
involving an unreasonable application of federal law. But, a
review of the federal standards at ...