IN THE SUPREME COURT OF THE STATE OF MONTANA

ROGER LUKE BELL,

Petitioner,

v.

1 YNN GUYER, Warden

Montana State Prison,

Respondent.

OP 20-0144

FILE!,

JUN 0 2 2020

Bowen C3reenw000

Clerk of Suprerne Court

State of Montana

ORDER

Representing himself, Roger Luke Bell (Roger) has filed a petition for a writ of

habeas corpus, claiming that the Board of Pardons and Parole (Board) has violated his due

process rights by denying him a parole. In compliance with a March 24, 2020 Order, the

Special Assistant Attorneys General for the Department of Corrections (the Department)

respond that Roger's petition should be denied.

On May 24, 1985, the Yellowstone County District Court sentenced Roger for two

counts of deliberate homicide and two counts for the use of a weapon, imposing a total

sentence of 220 years. The District Court designated Roger a dangerous offender, pursuant

to § 46-18-404, MCA. State v. Bell, 225 Mont. 83, 95, 731 P.2d 336, 343 (1987). Roger

became parole eligible on December 22, 2001.

Roger states that he appeared before the Board on February 20, 2019. Roger argues

that the Board's three-member panel included a former police officer, Darrell Bell,' who

was part of the criminal investigation leading to his arrest in 1984. Roger provides a copy

of the subpoena and adds that this officer testified against him during his trial. Roger

contends that this Board member should not have been allowed to sit on the hearing panel

and that this member has a conflict of interest, resulting in an unfair and prejudicial hearing.

Roger notes that he has worked very hard in the last nineteen years to walk "straight and

Both parties point out that there is no relationship of consanguinity or affinity between Roger

Luke Bell and Board member Darrell Bell.

06/02/2020

Case Number: OP 20-0144
narrow . . ." completing several treatment and educational programs. He requests that this

Court "order the Board . . . to reconsider [his] case with an unbiased mind."

The Department reframes Roger's issues as follows: (1) whether Roger's procedural

due process rights were violated by Board member Darrell Bell's participation in Roger's

February 20, 2019 administrative review hearing; and (2) whether Darrell Bell had a

conflict of interest that warranted his recusal from this hearing. The Department provides

that because Roger committed his offenses before 1989, he has a liberty interest in parole.

McDermott v. McDonald, 2001 MT 89, ¶ 8, 305 Mont. 166, 24 P.3d 200

(citing Greenholtz v. Inmates of Neb. Penal & Corr. Complex, 442 U.S. 1, 7,

99 S. Ct. 2100, 2103-04 (1979)). Pursuant to precedent, the Department acknowledges that

Roger's liberty interest in parole is protected by the due process clause of the federal

constitution. McDermott, ¶ 8 (citing Board of Pardons v. Allen, 482 U.S. 369, 377,

107 S. Ct. 2415, 2420 (1987)). The Department points out, however, that pursuant to a

Montana statute, parole eligibility hinges on the Board's opinion that "there is a reasonable

probability that the prisoner can be released without detriment to the prisoner or to the

community[.]" Section 46-23-208(1)(a), MCA. See also McDermott, ¶ 8.

The Department next explains that Roger appeared before the Board on

February 20, 2019, for an oral administrative review based on the record, under

Admin. R. M. 20.25.402(1)(a) (2012), and that this administrative review is not a formal

hearing. The Department states that after receiving a report of the offender's progress and

conduct from its staff, the Board holds the oral administrative review where an inmate, like

Roger, has the right to be present and to provide a statement on his behalf. The Department

includes a copy of the administrative review's transcript. The Department further points

out that the Board may not grant parole to a violent offender, such as Roger, upon an

administrative review. Admin. R. M. 20.25.402(5) (2012). The Department posits that

Roger's argument about the denial of parole therefore is without merit; however, the

Department adds that while the administrative review does not rise to the level of a formal

hearing, Roger's due process rights remain intact. As the Department highlights and this

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Court has long adhered to, "the United States Supreme Court has held that due process is

satisfied when the prisoner seeking parole is, at a minimum, provided with an opportunity

to be heard and a written statement explaining why he was denied parole."

McDermott, ¶ 11 (citing Greenholtz, 442 U.S. at 16, 99 S. Ct. at 2108; Sage v. Gamble,

279 Mont. 459, 465, 929 P.2d 822, 825 (1996)). The Department concludes that the Board

did not violate his due process rights because Roger was given the opportunity to be heard

and a written copy of the Board's case disposition. Roger also acknowledged this in his

petition.

Next, the Department provides that Board member Darrell Bell's presence at this

administrative review was not a conflict of interest. The Department points out that

Dan•ell Bell as a former police officer did not participate personally and substantially in

the investigation, prosecution, or sentencing of Roger, and supplies an affidavit in support

from Board member Darrell Bell. The Department explains, and the affidavit supports,

that Darrell Bell was a Sergeant with the Billings Police Department at the time of the

murders in 1984, and that his main responsibility was to supervise patrol officers under his

command. Then-Sergeant Bell appeared on scene to assist two patrol officers who had

arrived earlier in securing the crime scene for detectives. Once secured, Darrell Bell

instructed his officers to remain on scene and following his return to the police station,

Darrell Bell wrote a report about his limited involvement in the homicide investigation.

The Department states that Darrell Bell had no further involvement in the case.

Moreover, the Department provides that when then-Sergeant Darrell Bell was initially

dispatched to the crime scene, Roger had not yet been identified as a potential suspect in

the murders. The Department adds that Darrell Bell only remembered Roger's identity

after the filing of this instant petition. The Department addresses the subpoena attached to

Roger's habeas corpus petition and states that Darrell Bell did not testify or otherwise

participate in the criminal trial. The Department concludes that Board member Darrell Bell

did not need to recuse himself because no conflict of interest exists.

Admin. R. M. 20.25.101(2) (2016). The Department notes that the Board has since

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ordered another administrative review for Roger in August 2020 because of an unrelated

anomaly. Admin. R. M. 20.25.402(1)(b) (2012).

We find the Departrnent's arguments persuasive and conclude that Roger's due

process rights have not been violated. His administrative review was just that—a review

where parole could not be granted. We also conclude that no conflict of interest was known

or even identified before or during this adrninistrative review to warrant Board member

Darrell Bell's recusal.

"Parole . . . is a discretionary grant of freedorn from incarceration."

McDermott, ¶ 24. We commend Roger for completing all of his treatment and educational

programs over the years. Parole considerations are within the Board's broad discretion and

not with this Court. McDermott, in 24-25. The release also must be in the best interests

of the society. Section 46-23-208(1)(b), MCA. In its case disposition, the Board wrote as

its reason for denial that "Parole release at this tirne would diminish the severity of the

offenses[1" Section 46-23-208(4)(q), MCA. No indicated needs were marked. Roger has

another administrative review in August of this year. He is not entitled to habeas corpus

relief. Section 46-22-101(1), MCA. Accordingly,

IT IS ORDERED that Roger's Petition for a Writ of Habeas Corpus is DENIED.

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

Roger Luke Bell personally.

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DATED thisZ7-- day of June, 2020.

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1,,,AV?e)f

Chief Justice
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