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Boll v. Guyer

Supreme Court of Montana

October 29, 2019

JOSHUA PAUL BOLL, Petitioner,
v.
LYNN GUYER, Warden, Montana State Prison, Respondent.

          ORDER

         Joshua 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.

         Boll is 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 parole eligibility.

         Boll 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.

         Boll 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."

         Boll is 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.

         We turn 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.

         Moreover, 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 stated:

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.

         Judgment, 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.

         IT IS FURTHER ORDERED that Boll's Motion for Appointment of Counsel is DENIED, as moot.

         The Clerk is directed to provide a copy of this Order to counsel of record ...


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