J. Nezperce v. Salmonsen ( 2022 )

03/22/2022
IN THE SUPREME COURT OF THE STATE OF MONTANA Case Number: OP 22-0115
OP 22-0115
JOSEPH DENNY NEZ PERCE V, MAR 2 2 'LULL
Bowen Greenwoou
Petitioner, Clerk of Supreme Coun
State of Montana
v.
ORDER
JAMES SALMONSEN, Warden,
Montana State Prison,
Respondent.
Joseph Denny Nez Perce V has filed a Petition for Writ of Habeas Corpus, claiming
illegal incarceration. He explains that he received a rule infraction, "#4201 Fighting with
another person," because he was atternpting to "deter further violence when two inrnates
became hostile with the intent to assault [him] . . . ." Nez Perce contends that his
constitutional and statutory rights have been violated because he cannot protect himself,
and when he does, he receives a rule infraction that affects the future granting of parole.
He states that if he does not fight back, he is "subject to ridicule and personal insult by staff
and inmates for not standing up for [himself][.]" Nez Perce requests that the rule infraction
be removed from his prison record and argues for his immediate release.
Nez Perce brings his clairns through the wrong remedy to this Court. He references
constitutional right violations and preservation of his civil rights for which habeas corpus
is not the appropriate remedy. Gates v. Missoula Cty. Comm'rs, 235 Mont. 261, 262,
766 P.2d 884, 884-85 (1988). The statute for habeas corpus relief "allows a prisoner to
challenge the legal sufficiency of the cause for incarceration." Gates, 235 Mont at 262,
766 P.2d at 884-85. Nez Perce has not alleged that the cause of his incarceration is
unlawful.
Nez Perce's claims of alleged constitutional and statutory rights violations are
without merit. Nez Perce does not have a liberty interest in parole. "As a general rule,
inmates have no liberty interest in parole." McDermott v. McDonald, 2001 MT 89, ¶ 8,
305 Mont. 166, 24 P.3d 200. Nez Perce was convicted of his offenses after 1989 when
Montana Legislature removed the mandatory language about a federally protected liberty
interest in parole. McDermott, ¶ 8.
Nez Perce's due process rights have not been violated. We have stated before that
due process is a flexible concept. "[T]he process due an individual varies according to the
factual circumstances and the nature of the right at stake." Jellison v. Mahoney,
1999 MT 217, ¶ 8, 295 Mont. 540, 986 P.2d 1089 (citing Sage v. Gamble, 279 Mont. 459,
464-65, 929 P.2d 822, 825 (1996)). Nez Perce included copies of the Disciplinary
Infraction Report and Notice of Hearing, as well as the Decision and his Appeal. He also
includes copies of the reasons for his re-classification and denial of his Appeal. We have
noted previously that "when considering the due process rights of inmates, it is exceedingly
irnportant to remember that prison disciplinary actions "[take] place in a closed, tightly
controlled environment peopled .by those who have chosen to violate the criminal law and
who have been lawfully incarcerated for doing so." Jellison, ¶ 8 (quoting
Wolff v. McDonnell, 418 U.S. 539, 561, 94 S. Ct. 2963, 2977 (1974)). The employees of
the Montana State Prison gave Nez Perce notice of the rule infraction and its consequences
while also allowing him to challenge their decision.
Nez Perce has not demonstrated illegal incarceration. Section 46-22-101(1), MCA.
He is not entitled to removal of the rule infraction via this remedy, and he is not entitled to
release. Nez Perce rnay have other remedies in a District court concerning any civil rights
violations. Therefore,
IT IS ORDERED that Nez Perce's Petition for Writ of Habeas Corpus is DENIED
and DISMISSED.
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The Clerk is directed to provide a copy of this Order to counsel of record and Joseph
Denny Nez Perce V persozyy.
DATED this e.a day of March, 2022.
Chief Justice
egi M .04.0114.,
Justices
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