# ORIGINAL

IN THE SUPREME COURT OF THE STATE OF MONTANA OP 24-0505
SHAWN HOWARD WELLER,

Petitioner,

v. JIM SALMONSEN, WARDEN, MONTANA STA1E PRISON,

Respondent. ORDER 

# FILE? SEE 

## 1Z2024 Bowen Greenwou, Clark of Supreme Cou,, State of Montana Shawn Howard Weller has filed a Petition for Writ of Habeas Corpus, explaining that he has been denied an appearance before theBoard ofPardons and Parole (Board) and indicatingthat the Board should have granted himparole,thereby violatinghis dueprocess rights in its denial. Weller includes attachments, further explaining that his petition
concerns a more recentjudgment and not his 2008 conviction. See Weller v. State et aL, No. OP 15-0406 (Order requiring Weller to file a motion for leave before filing a petition in an original proceeding concerning his 2008 conviction and revocation ofhis suspended sentence (Mont. Jul. 22, 2015) (Weller 11)). We point to this Court's previous summary, where we stated: This Court is very familiar with Weller's history.' Weller was on parole for partner or family member assault when, on July 27, 2006, hewas arrested for driving under the influence (DUI) in Lewis and Clark County. After posting his bond, Weller absconded. His charge was later amended to felony DUI. Weller was arrested in Texas, and on March 21, 2007, he was delivered to Montana State Prison as aparoleviolator. Hisparole wasrevoked. InMarch 2008, ajury convicted Weller offelony DUI. The District Court designated Weller a persistent felony offender and sentenced him to a twenty-two-year commitment with seventeen years suspended. He appealed, solely on the issue ofajury instruction, and we affirmed.State v. Weller,No.DA 08-0207, 2009 MT 168, TT 1-2, 9, 350 Mont. 485, 208 P.3d 834 (Weller 1).
I Since 2008, Weller has had ten matters concerning Lewis and Clark County Cause No. CDC-2007-207 before this Court. 09/17/2024

Case Number: OP 24-0505Weller 11, at 1 (footnote in original, added dash).

According to his attached copy of a final judgment, in open court on February 7, 2024, the Second Judicial District Court, Butte-Silver Bow County, committed Weller to the Department of Corrections (DOC) for a concurrent, five-year term for felony driving under the influence of alcohol or drugs, 4th or subsequent offense (DUI). The court awarded 263 days ofcredit for time served. Weller is also serving the DOC sentence upon revocation ofseventeenyears, imposed in 2012, from theLewis and Clark County District Court. Weller 11, at 3. Weller contends that his incarceration is illegal. The crux ofhis Petition is that he wants to .appear before the Board on his timeline. Weller contends that after entering a guilty plea to his DUI from Butte-Silver Bow County in May 2023, he went to prison on the five-year sentence. On April 2, 2024, he appeared before the Board for the revocation ofhis parole concerning his sentence from Lewis and Clark County. Weller states that he
was given a reappearance date ofApril 2025 and that he must complete "DOC risk and needs assessment and followrecomrnendations." Wellerprovidesthat his parole eligibility date was August 18, 2024, for his sentence from Butte-Silver Bow County, but the prison and institutional probation and parole officers "are both refusing to let [him] see the [B]oard

. . . ." Weller requests that he be placed in treatment. He alleges that his due process rights have been violated and puts forth that he has a protected liberty interest. Weller is mistaken. Weller cannot dictate the appropriate timing ofhis appearance before the Board, given his recent conviction and sentence while on parole. Weller is correct that he has a date for parole eligibility, but that date does not rnean he will be released on parole then. He committed his crimes after 1989, and he does not have a protected liberty interest. See Worden v. MontanaBd. of Pardons &Parole, 1998MT 168, ¶¶41-42, 289 Mont. 459, 962 P.2d 1157 (1998) (noting that prior to 1989, inmates had a liberty interest inparoleprotected by the dueprocess clause ofthe federal constitution, due to the mandatory language in § 46-23-201, MCA, which the Montana Legislature later amended). TheBoard has notviolated his dueprocessrights. Morethan twenty years ago, we explained that the Board has "broad discretion to grant, deny, or condition parole[d" 2

### McDermott v. McDonald, 2001 MT 89,¶20, 305 Mont. 166, 24 P.3d 200. "Once lawfully

sentenced, however, a prisoner is not entitled to release prior to the completion ofhis full sentence. Parole, therefore, is agrant ofliberty." McDermott, ¶ 17 (emphasis in original). A condition on parole is not a limitation on liberty, unlike a condition on a sentence. McDermott, ¶ 17 (emphasis added). Here, the Board has conditioned Weller's parole, limiting his liberty. We point out that Weller will appear next year before the Board. Habeas corpus affords an applicant an opportunity to challenge collaterally the legality of his present incarceration. Section 46-22-101(1), MCA. Weller has not demonstrated that he is entitled to habeas corpus relief. The Board has the statutory authority, under §46-23-201(1),MCA(2005),todetermine when Weller " can bereleased without detriment to [himself] ortothe community[1'" McDermott,

## ¶25. Weller hasnot demonstrated illegal incarceration or restraint. Therefore, IT IS ORDERED that Weller's Petition for Writ ofHabeas Corpus is DENIED and DISMISSED. IT IS FURTHER ORDERED that this matter is CLOSED as ofthis Order's date. TheClerk ofthe SupremeCourt isdirectedtoprovide acopy ofthisOrdertocounsel ofrecord and to Shawn Howard Weller personally. DATED this day ofSeptember, 2024.

3