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Smith v. Guyer

Supreme Court of Montana

March 12, 2019

JACOB SMITH, Petitioner,
v.
LYNN GUYER, Respondent.

          ORDER

         Jacob Smith has petitioned for a writ of habeas corpus, primarily challenging his recent denial of parole by the Board of Pardons and Parole (Board) in light of Admin. R. M. 20.25.101 (2) (2016), concerning conflict of interest. We directed the Attorney General or counsel for the Department of Corrections to address the sole issue of whether two members of the Board violated Admin. R. M. 20.25.101(2), by not identifying and disclosing, prior to Smith's hearing, a conflict of interest that would warrant these members' recusal. Special Assistant Attorney General for the Department of Corrections (DOC or Department) has filed a response arguing that Smith's petition be denied because recusal was not warranted here. Smith has filed a motion requesting that he be allowed to file a reply to the Department's response.

         Smith is incarcerated in Montana State Prison, and is currently serving two sentences upon revocation and two 2017 sentences arising from three district courts. On March 24, 2016, the Butte-Silver Bow County District Court revoked Smith's ten-year suspended sentence from 2009 and imposed a five-year commitment to the DOC for criminal possession of dangerous drugs (Butte-Silver Bow County sentence upon revocation). On October 26, 2016, the Jefferson County District Court revoked Smith's sentences for theft, criminal endangerment, and criminal possession of dangerous drugs and imposed a five-year DOC term to run concurrently with his Butte-Silver Bow County sentence upon revocation (Jefferson County sentence upon revocation). On February 14, 2017, the Lewis and Clark County District Court sentenced Smith to a five-year DOC term with one year suspended for criminal possession of dangerous drugs, to run consecutively to the Butte-Silver Bow County sentence upon revocation and Jefferson County sentence upon revocation. On the same day, the Lewis and Clark County District Court also sentenced Smith for bail jumping and imposed a ten-year suspended sentence to run consecutively to all other sentences.

         Smith appeared before the Board a second time on October 10, 2018, and he contends two Board members sat on his hearing in violation of Admin. R. M. 20.25.101 (2), because they knew him from previous contacts. Board member and former District Court Judge Brad Newman was Smith's sentencing judge for his original sentence and for the Butte-Silver Bow County sentence upon revocation. Smith also notes that Judge Newman presided over two dependent-neglect cases involving Smith. The other Board member was Annette Carter, who Smith contends was his supervising Probation and Parole Officer in Lewis and Clark County regarding his two 2017 convictions. Admin. R. M. 20.25.101(2) provides, in part:

Individual board members shall, prior to hearing a case, disclose any conflict of interest and recuse themselves in cases in which it has been determined that a conflict of interest is clearly identified.

         The Department argues Admin. R. M. 20.25.101(2) was not violated and that Smith had a fair and impartial hearing. Noting the absence of precedent specifically applying the Rule, the Department cites to similar cases addressing the issue. First, the United States Supreme Court has articulated the "extrajudicial source" doctrine, holding that "[t]he alleged bias and prejudice to be disqualifying must stem from an extrajudicial source and result in an opinion on the merits on some basis other than what the judge learned from his participation in the case." United States v. Grinnell Corp., 384 U.S. 563, 583, 86 S.Ct. 1698, 1710 (1966) (internal citation omitted). Further,

[O]pinions formed by the judge on the basis of facts introduced or events occurring in the course of the current proceedings, or of prior proceedings, do not constitute a basis for a bias or partiality motion unless they display a deep-seated favoritism or antagonism that would make fair judgment impossible.

Liteky v. United States, 510 U.S. 540, 555, 114 S.Ct. 1147, 1157 (1994) (emphasis added). The Department thus argues that Judge Newman did not have a disqualifying conflict because the alleged bias and prejudice do not stem from an extrajudicial source.

         Under Montana law, the Department notes the Montana Code of Judicial Conduct governs judicial disqualification issues, citing State v. Dunsmore, 2015 MT 108, ¶ 12, 378 Mont. 514, 347 P.3d 1220. As with federal precedent, the Department argues Smith's claim of bias cannot stand under state law because any knowledge Judge Newman gained arose from Smith's legal proceedings and not from an extrajudicial source:

Knowledge about matters in a proceeding that has been obtained by a judge within the proceeding itself or within another legal proceeding is permissible and does not call for disqualification. Therefore, presiding over a civil case does not disqualify the judge from presiding over the criminal case even if it is the same matter.

State v. Strang, 2017 MT 217, ¶ 26, 388 Mont. 428, 401 P.3d 690 (citing Charles Gardner Geyh et al., Judicial Conduct and Ethics § 4.10, 4-42 (5th ed. 2013)) (emphasis added) (citations omitted). The Department further distinguishes a parole proceeding from the heightened concerns in a judicial proceeding, citing McDermott v. McDonald, 2001 MT 89, ¶ 11, 305 Mont. 166, 24 P.3d 200 (A parole release decision is not subject to the same due process protections that are required to convict or confine a person).

         Regarding Board member Annette Carter, the Department disputes Smith's factual contentions. Contrary to his argument, the Department explains Carter did not participate substantially and personally in Smith's supervision because she was never his supervising officer, and provides a listing showing that Smith's Probation Officers were Melissa Lesmeister, Marc Kittleson, Trevor Newman and Michelle Jenicek. Therefore, the Department submits that Carter did not have a disqualifying conflict.

         Admin. R. M. 20.25.101(2) states that a member "shall. . . disclose any conflict of interest and recuse themselves ..." where "it has been determined that a conflict of interest is clearly identified." Within the framework provided by judicial rulings, we agree with the Department that Smith has not here demonstrated a "clearly identified" conflict of interest based upon extrajudicial association regarding Judge Newman. M. C. Jud. Cond. 2.12 typically applies to a sitting judge who represented a party in a prior proceeding. Regarding Board member Carter, a former Probation and Parole Officer, it appears Smith was never directly supervised by Carter.

         Smith's other claims or arguments are not reviewable in a habeas proceeding. "The current habeas corpus statute bars an individual such as [Smith], who has been adjudged guilty of an offense and has failed to appeal or has exhausted his remedy of appeal, to attack the validity of his sentence." Lott v. State,2006 MT 279, ¶ 19, 334 Mont. 270, 150 P.3d 337; § 46-22-101(2), MCA. Thus, any challenge he raises to results of his urine analysis tests, witnesses, arrest, conviction, or the underlying criminal proceedings are collateral attacks that cannot be pursued by way of a petition for a writ of habeas corpus. Smith should have or could have raised such issues in an appeal. State v. Wright,2001 MT 282, ¶ 37, 307 Mont. 349, 42 P.3d 349. Because Smith did not appeal his convictions, sentences, or sentences upon revocation, he has exhausted this remedy and is barred from ...


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