Opinion
OP 24-0201
04-16-2024
D'WAYNE ROSCHELL BAILEY, Petitioner, v. JIM SALMONSEN, Warden, Montana State Prison, Respondent.
ORDER
D'Wayne Roschell Bailey petitions this Court again for habeas corpus after our' recent denial of his request for habeas relief. He puts forth that his incarceration is illegal, stating that he is entitled to relief because "the State of [Montana] is not honoring our contract."
Bailey is referring to his plea agreement as well as the Montana Interstate Compact. He wants to be returned to a facility in California instead of his current placement in a facility in Montana. He points to his plea agreement and sentencing judgment where the court recommended transfer to the State of California. He contends that this agreement has been breached as he was in California for seven years, only to be returned to Montana to complete a treatment program, which he states, he could have completed in California' because under the Montana Interstate Compact, similar programs must be provided in the receiving state. Bailey also moves for injunctive relief or for a permanent injunction "to remain on Atypical single cell status, as long as [he continues] to remain in the State of MT. in the ... custody" of the Montana Department of Corrections. Bailey-explains that he wants to serve his time in California and not in "this penal colony!"
Bailey's plea agreement was entered in his criminal case in the Lincoln County District Court. The District Court imposed a forty-five-year sentence to the Montana State Prison for felony sexual intercourse without consent on June 6, 2005. The court noted that Bailey's guilty plea was knowingly, freely, and voluntarily made. The court, as Bailey states in his instant Petition, noted that the judgment conforms to the plea agreement and recommended "to the Department of Corrections that [Bailey] be considered for transfer, pursuant to the Interstate Compact Agreement, to the State of California upon application by [Bailey]." (Emphasis added).
We will afford some latitude to Bailey, even though his arguments and claims are not properly before this Court. Bailey is correct that a plea agreement is a contract, but his . point of law ends there. "A plea agreement is between the prosecutor and the defendant; a judge may not participate in the agreement and is not bound by the agreement." State v. Larsen, 266 Mont. 28, 32, 878 P.2d 886, 889 (1994) (quoting State v. Jacobson, 252 Mont, 94, 826 P.2d 555 (1992); § 46-12-211(c), MCA.). While the District Court referenced the plea agreement in its Judgment and Sentence, the court is not a party to the agreement- hence, it made only a recommendation about Bailey's placement. Additionally, a court has no authority to direct the DOC for placement of an adult offender, such as Bailey. Bailey is precluded from challenging his plea in this proceeding. See also State v. Bailey, No. DA 18-0070, Order denying petition for out-of-time appeal (Mont. Feb. 14, 2018) (Bailey II).
Since 2016, Bailey has filed six matters, including this one, with this Court.
This Court reiterates that Bailey's requested relief cannot be found in this Court or through a writ of habeas corpus. Bailey is not entitled to an injunction. M. R. App. P. 14(4). As we stated last month, his claims cannot be remedied by this writ. Bailey v. Gootkin et al., No. OP 24-0110, Order (Mont. Mar. 12, 2024) (Bailey V).
Habeas corpus is not the appropriate remedy for conditions of confinement or constitutional claims because the writ does not go to the cause of the incarceration. Gates v. Missoula County Comm 'rs, 235 Mont. 261,262,766 P.2d 884, 884-85 (1988). Bailey's remedy, if any, would be a civil action for his claims about alleged contract violations of the Interstate Compact Act, his treatment in Montana, or the conditions of confinement. About the location of his detention, we remind Bailey that he does not have a constitutional right to choose where to serve his time. Wright v. Mahoney, 2003 MT 141, ¶ 8, 316 Mont. 173, 71 P.3d 1195. "Montana retains the
discretion to transfer a prisoner for whatever reason or no reason at all[.]" Wright, ¶ 11.Bailey V, at 2 (emphasis added). This Court does not have authority over the Department of Corrections (DOC) and its placement of adult offenders. It is not clear whether Bailey has availed himself of the DOC's policies, such as submitting an Offender/Staff Request form under DOC Policy 3.3.5 or filing a grievance under DOC Policy 3.3.3, to remain in single-cell status or to seek an application through the Interstate Compact for return to California. Bailey should first seek relief through these administrative policies. He may also seek a civil action for injunctive relief or other relief in the Powell County District Court where a record would be established concerning his claims.
Bailey has not demonstrated illegal incarceration. Bailey V, at 2; § 46-22-101(1), MCA.
IT IS ORDERED that Bailey's Petition for Writ of Habeas Corpus is DENIED and DISMISSED.
IT IS FURTHER ORDERED that this matter is CLOSED as of the Order's date.
The Clerk of the Supreme Court is directed to provide a copy of this Order to counsel of record and to D'Wayne Roschell Bailey.