Petitioner, 

v. 

JIM SALMONSEN, Warden, 

MONTANA STATE PRISON, 

Respondent. 

State of 

ORDER 

Representing himself, Russell Scott Avery petitions this Court for habeas corpus 

relief, alleging that the Missoula County District Court revoked his parole. In compliance 

with this Court's February 3, 2022 Order, the Department of Corrections (the Departrnent) 

responds that Avery has not dernonstrated illegal incarceration and that his Petition should 

be denied. Section 46-22-101(2), MCA. 

In May 2012, the Missoula County District Court sentenced Avery to the Montana 

State Prison (MSP) for thirty years with twenty years suspended for felony sexual 

intercourse without consent. The Board of Pardons and Parole (Board) granted Avery 

parole on April 14, 2020. In March 2021, he violated his parole in Lewis and Clark County 

when he was charged with a new offense, criminal possession of dangerous drugs. On 

May 25, 2021, the Missoula County District Court revoked his 2012 sentence because 

Avery violated his conditions. The court committed him to the DOC for twenty years with 

seventeen years suspended. In a separate proceeding on July 21, 2021, the Board revoked 

Avery's parole because he violated laws and conduct, used illegal drugs, and associated 

with other probationers and parolees. 

Avery states that the Missoula County "District Court Violated [his] Due Process 

Rights when it Unilaterally [superseded] the Statutory Authority of the State Board of 

Parole and revoked [his] April 14, 2020[] Parole." Avery contends that instead of having 

the Board revoke his parole, the District Court revoked his "suspended sentence" and 
contrary to Avery's contention, the District Court did not supersede the Board's statutory 

authority by revoking his parole. The District Court revoked Avery's suspended sentence 

and reimposed a twenty-year sentence with seventeen years suspended. While it is true 

that Avery had not yet begun serving the suspended portion of his originally imposed 

sentence, § 46-18-203(2), MCA, allows for a petition to revoke a suspended sentence 

"either before the period of suspension . . . has begun or during the period of suspension." 

State v. Graves, 2015 MT 262, ¶ 14, 381 Mont. 37, 355 P.3d 769 (quoting 

§ 46-18-203(2), MCA). 

Avery has not demonstrated illegal incarceration or that he is entitled to habeas 

corpus relief. Section 46-22-101(1), MCA. He has not shown violations of his 

constitutional rights, such as due process. Avery was subject to the jurisdiction of both the 

District Court and the Board. Avery violated his parole with a non-compliance violation, 

resulting in two separate revocation processes. The District Court had statutory authority 

to revoke his twenty-year suspended sentence. Section 46-18-203(7)(a)(iii), MCA. The 

District Court did not revoke his parole because that is the province of the Board. Section 

46-23-1025(3)(c), MCA. Therefore, 

IT IS ORDERED that Avery's Petition for 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 

Russell Scott Avery personally. 

DATED this Z_Z day of March, 2022. 

2 

Chief Justice 
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Justices 

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