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 1Z 2024 

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 the Board of Pardons and Parole (Board) and 

indicating that the Board should have granted him parole, thereby violating his due process 

rights in its denial. Weller includes attachments, further explaining that his petition 

concerns a more recent judgment 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 of his 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, he was 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 a parole violator. His parole was revoked. In March 

2008, a jury convicted Weller of felony 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 of a jury 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 24-0505
Weller 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 of credit for time served. Weller is also serving the DOC sentence upon 

revocation of seventeen years, imposed in 2012, from the Lewis and Clark County District 

Court. Weller 11, at 3. 

Weller contends that his incarceration is illegal. The crux of his 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 

of his parole concerning his sentence from Lewis and Clark County. Weller states that he 

was given a reappearance date of April 2025 and that he must complete "DOC risk and 

needs assessment and follow recomrnendations." Weller provides that 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 of his 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. Montana Bd. of Pardons & Parole, 1998 MT 168, 

¶¶ 41-42, 289 Mont. 459, 962 P.2d 1157 (1998) (noting that prior to 1989, inmates had a 

liberty interest in parole protected by the due process clause of the federal constitution, due 

to the mandatory language in § 46-23-201, MCA, which the Montana Legislature later 

amended). The Board has not violated his due process rights. More than 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 of his full 

sentence. Parole, therefore, is a grant of liberty." 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), to determine when Weller " can be released 

without detriment to [himself] or to the community[1' " McDermott, ¶ 25. Weller has not 

demonstrated illegal incarceration or restraint. Therefore, 

IT IS ORDERED that Weller's Petition for Writ of Habeas Corpus is DENIED and 

DISMISSED. 

IT IS FURTHER ORDERED that this matter is CLOSED as of this Order's date. 

The Clerk of the Supreme Court is directed to provide a copy of this Order to counsel 

of record and to Shawn Howard Weller personally. 

DATED this day of September, 2024. 

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