Paul Boll has filed a petition for a writ of habeas corpus,
indicating that his sentence is illegal and raising two
issues concerning his confinement and care while
incarcerated. Boll also moves this Court for appointment of
counsel and attaches a supporting affidavit.
serving two concurrent, eighty-year terms for aggravated
kidnapping and sexual intercourse without consent after he
entered pleas of guilty in 1996 in the Eleventh Judicial
District Court, Flathead County. The court also suspended
twenty years of Boll's sentence. The District Court
ordered that Boll must complete several therapies, programs,
and all phases of sex offender treatment program (SOP) before
provides more background in his instant petition. He states
that on December 19, 1995, the District Court entered an
Order to transfer him "from Youth Court to Adult
Court." He explains that, because of his initial
placement in the Montana State Prison, he missed the deadline
for filing his sentence review application. He states that he
filed a notice of appeal as a pro se litigant and made
"note of counsel's failure to do so" Boll adds
that this Court should have afforded him more latitude in his
appeal before its dismissal. He notes that he was sent
out-of-state to Texas in late 1997 to 1999. He challenges his
counsel's effectiveness and claims ineffective assistance
of counsel regarding the evidence presented at sentencing.
Boll requests that this Court remand his matter for
resentencing on this issue.
also alleges that over the years with his different
placements and confinements that he is unable to complete all
phases of SOP. He claims that his safety was jeopardized in
one cell block "knowing the recent history of animosity
towards sex offenders on that block in particular," and
that he was "forced to choose between personal safety
and, treatment participation." He requests that he be
allowed to appear before the Board of Pardons and Parole
"for consideration of his parole without regard to [the]
requirement that he complete Sex Offender Treatment Program
at the Montana State Prison."
more than twenty years too late to raise issues concerning
his sentencing or his counsel's representation. Boll did
file a notice of appeal on January 15, 1997, and this Court
dismissed his appeal because Boll failed to file a written
statement showing good cause that his appeal should proceed.
State v. Boll, No. 97-105, Order dismissing appeal
(Mont. Aug. 26, 1997). Habeas corpus relief is not an option
for Boll. "The writ of habeas corpus is not available to
attack the validity of the conviction or sentence of a person
who has been adjudged guilty of an offense in a court of
record and has exhausted the remedy of appeal." Section
46-22-101(2), MCA. Boll appealed his conviction and sentence
in 1997. Although he did not prosecute his appeal with this
Court, he has nonetheless exhausted this remedy. Boll is
procedurally barred from raising these issues now.
to Boll's allegations about prison housing and failure to
complete SOP. He claims cruel and unusual punishment under
the Eight Amendment of the U.S. Constitution. These
allegations are not properly raised in a petition for habeas
corpus relief. Section 46-22-101(1), MCA. The remedy of
habeas corpus is not appropriate for constitutional claims.
Gates v. Missoula County Comm'rs, 235 Mont. 261,
261-62, 766 P.2d 884, 884-85 (1988). Boll has not
demonstrated illegal incarceration on this basis either.
this Court does not schedule parole hearings or revise parole
ineligibility restrictions. The Flathead County District
Court imposed a parole restriction upon Boll and provided the
reasons. Section 46-18-202(2), MCA (1995). The District Court
As required by the sentencing guidelines for imposition of
this sentence, the Court has considered a number of factors
in aggravation and mitigation of this sentence. The Court
is concerned that the Defendant poses a substantial danger
to society and that society needs protection from the
Defendant. In addition, the Court has considered the
punishment of the Defendant for this crime and his eventual
rehabilitation. The overwhelming aggravating circumstance
in this case is that the Defendant repeatedly raped the
victim vaginally, anally and orally and inflicted bodily
injury upon her by choking her and binding her hands with
an electrical cord. This crime occurred over several hours
and in various locations. The Defendant then left the
victim bound in the trunk of a car to possibly die. The
Defendant may well have occasioned the victim's death
but for her ingenuity in escaping her imprisonment in that
car trunk. The Court finds that the Defendant's conduct
shows an absolute lack of empathy for his victim as
disturbing as can be imagined.
Sentence and Order, at 5-6 (Mont. Eleventh Judicial Dist. Ct.
Oct. 21, 1996). Regarding Boll's placement, confinement,
and treatment progress, his options for relief are with the
Department of Corrections by submitting his concerns via the
grievance procedure there. Boll has not demonstrated illegal
incarceration. Therefore, IT IS ORDERED that Boll's
Petition for a Writ of Habeas Corpus is DENIED.
FURTHER ORDERED that Boll's Motion for Appointment of
Counsel is DENIED, as moot.
Clerk is directed to provide a copy of this Order to counsel
of record ...