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.
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.
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.
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.
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
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
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.
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.
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 ...