Opinion
OP 22-0119
04-19-2022
KEITH E. DOYLE, Petitioner, v. JIM SALMONSEN, Warden Respondents.
ORDER
Petitioner Keith R Doyle is under a pre-filing approval requirement for original petitions imposed by our order of July 2, 2019. On March 8, 2022, this Court granted Doyle's request for leave to file a petition challenging the process leading to his incarceration, including a challenge to § 46-23- 1024(1)(b), MCA, for failing to require an initial or on-site hearing to find probable cause for a parole violation in his case. Doyle has now filed his Petition along with supporting documents.
Doyle did not receive a probable cause hearing after he was arrested while on parole. He contends his incarceration is illegal because he was "entitled by law to an initial on[-]site hearing [before] having [his] parole revoked as a matter of Due Process of Law." Citing to Morrissey v. Brewer, he argues "[w]hat is needed is an informal hearing structured to assure that the finding of a parole violation will be based on verified facts and that the exercise of discretion will be informed by an accurate knowledge of the parolee's behavior." 408 U.S. 471, 484, 92 S.Ct. 2593, 2602 (1972). Doyle explains he was notified by his Parole Officer that a warrant for his arrest upon a charge of partner or family member assault (PFMA) had been issued, and that he voluntarily turned himself in to his Parole Officer. He states he was detained eight months at the Yellowstone County Detention Facility without the hearing he desires, and requests immediate release from prison,
Doyle correctly cites Morrissey as leading authority regarding a parolee's minimum due process requirements when facing a parole violation. 408 U.S. at 484-489, 92 S.Ct. at 2602-605. However, Morrissey explains a state has discretion to devise the particular procedure due to a parole violator who is arrested. "We cannot write a code of procedure; that is the responsibility of each State. Most States have done so by legislation, others by judicial decision usually on due process grounds." Morrissey, 408 U.S. at 488, 92 S.Ct. at 2604. See §§ 46-23-1001 through 46-23-1032, MCA (Montana statutes codifying the process for both probation and parole supervision and revocation).
Under Montana's statutory scheme, Doyle was not entitled to an initial or on-site hearing after his arrest because he was charged with a new offense. "After the arrest of the parolee, an initial hearing must be held unless . . . the parolee has been charged in any court with a violation of the law[.]" Section 46-23-1024(1)(b), MCA (emphasis added). As Doyle acknowledges, he was notified of the new charge by his Parole Officer. According to the attached Report of Violation, Doyle was charged with misdemeanor PFMA on March 30, 2021, a non-compliance violation. Available electronic records indicate Doyle pled guilty to PFMA in the Billings Municipal Court, and that the Yellowstone County District Court dismissed other pending misdemeanor offenses in, October 2021. On November 8, 2021, Doyle signed a Notice of Rights that informed him of an upcoming hearing before the Board of Pardons and Parole concerning his parole status, We conclude that Doyle's due process rights as provided in Morrissey were not violated and that he is not entitled to be released. Doyle was not entitled to an on-site hearing because probable cause existed to find a parole violation via the new criminal charge, of which he was notified. "Parole ... is a discretionary grant of freedom from incarceration." McDermott v. McDonald, 2001 MT 89, ¶ 24, 305 Mont. 166, 24 P.3d 200. Doyle violated the conditions of his parole by the new offense. He has not demonstrated illegal incarceration. Section 46-22-101(1), MCA.
IT IS ORDERED that Doyle's Petition for a Writ of Habeas Corpus is DENIED and DISMISSED.
The Clerk is directed to provide a copy of this Order to counsel of record and to Keith E. Doyle personally.