Opinion
OP 24-0374
07-30-2024
DONNIE NOLAN, Petitioner, v. WARDEN TOM GREEN, Dawson County Detention Facility, Respondent.
ORDER
Donnie Nolan petitions this Court for rehearing of a June 25, 2024 Order where this Court denied his petition for a writ of habeas corpus because he could not demonstrate illegal incarceration. Nolan's instant Petition brings the same or similar arguments for the third time to this Court in the last year.
Nolan contends that this Court was wrong in relying on Montana's statute, § 46-23-1028, MCA, and holding that Nolan had committed a non-compliance violation. Nolan cites DOC Policy 6.3.101, where an offender must be convicted of a new crime to be considered a new criminal offense. Nolan further contends that he should have served only a nine-month term; that his parole revocation was in error; and that the Montana Incentives Intervention Guide (MIIG) applies.
M. R. App. P. 20(1) provides criteria for rehearing. This Court "will consider a petition for rehearing presented only upon ... [t]hat it overlooked some fact material to the decision[,] ... or [t]hat its decision conflicts with a statute or controlling decision not addressed by the supreme court." M, R, App. P. 20(1)(a)(i) and (iii). "Absent clearly ! demonstrated exceptional circumstances, the supreme court will not grant petitions for rehearing of its orders disposing of motions or petitions for extraordinary writs." M. R. App, P. 20(I)(d).
Nolan's revived arguments are unavailing. Montana's statutes control over any rule or written policy. "[A] statute controls over an administrative rule, at least to the extent of any inconsistency or conflict." Williamson v. Mont. PSC, 2012 MT 32, ¶16, 364 Mont. 128, 272 P.3d 71 (citing-Honey v. Mahoney, 2001 MT 201, ¶ 6, 306 Mont. 288, 32 P.3d 1254). As stated before, the Board of Pardons and Parole (Board) may consider the underlying conduct of the charged offenses, and even a dismissed offense is considered a non-compliance violation. See generally Nolan v. Green, No. OP 23-0405, Order (Mont. Aug. 8, 2023) (Nolan I) and Nolan v. Green, No. OP 24-0374, Order (Mont. Jun. 25, 2024) (Nolan II). The Board had jurisdiction to consider Nolan's new offenses, known as non-compliance violations under Montana law, and properly revoked his parole. Nolan I, at 2 and Nolan II, at 2. ''[T]he MIIG does not apply to Nolan when he had a non-compliance violation, and he is not entitled to a nine-month placement in a secure facility. Nolan I." Nolan II, at 2.
Nolan has not demonstrated that he is entitled to rehearing. M. R. App. P. 20(1). There are no exceptional circumstances here. M. R. App. P. 20(1)(d). Therefore, IT IS ORDERED that Nolan's Petition for Rehearing is DENIED and DISMISSED.
The Clerk is directed to provide a copy to counsel of record and to Donnie Nolan personally.