James P. Kelly v. Henry Risley

865 F.2d 201 James P. KELLY, Petitioner-Appellant, v. Henry RISLEY, Respondent-Appellee. No. 87-3696. United States Court of Appeals, Ninth Circuit. Submitted June 6, 1988. * Decided Jan. 9, 1989. As Amended Feb. 27, 1989. James P. Kelly, Deer Lodge, Mont., pro se. Nick A. Rotering, Dept. of Institutions, Helena, Mont., for respondent-appellee. Appeal from the United States District Court for the District of Montana. Before WRIGHT, FERGUSON and BRUNETTI, Circuit Judges. BRUNETTI, Circuit Judge: 1 James P. Kelly, appellant, appeals the district court's dismissal of his habeas corpus petition, brought under 28 U.S.C. Sec. 2254 , for failure to state a claim for habeas corpus relief. Kelly alleges that he was wrongfully denied an annual review of denial of parole in violation of Administrative Rules of Montana (ARM) 20.25.401(8), and that ARM section 20.25.304(3) violates his right to equal protection, as guaranteed by the Fourteenth Amendment. 2 Kelly was initially sentenced in January 1980 to ten years imprisonment for the crime of robbery. He was designated as a "non-dangerous offender," thereby becoming eligible for parole after he had served one quarter of his sentence less good…

concurring:

While I agree with the holding of the majority that Kelly did not lose his entitlement to annual parole review on his original sentence under Mont.Admin.Reg. (“MAR”) § 20.25.401(8) by virtue of his being sentenced to a second prison term for escape, I write separately to note that the majority miscalculates Kelly’s parole eligibility with respect to his second (escape) sentence.

While the majority reads the term “completed” in MAR § 20.25.304(3) to mean “complete one’s term of legal custody,” they do not remain true to their own definition. The majority has this to say about Kelly’s parole eligibility with respect to his second sentence:

This passage implies that Kelly could be considered for parole on his second sentence before completing his term of legal custody on the original sentence — a proposition squarely at odds with the majority’s earlier interpretation of MAR § 20.25.304(3)’s completion requirement. In effect, the majority approach proves too generous to Montana prisoners because it reads out MAR § 20.25.304(3)’s completion requirement, thus permitting them to become parole-eligible on their second sentences prior to fully completing their original…

James P. Kelly, appellant, appeals the district court’s dismissal of his habeas corpus petition, brought under 28 U.S.C. § 2254 , for failure to state a claim for habeas corpus relief. Kelly alleges that he was wrongfully denied an annual review of denial of parole in violation of Administrative Rules of Montana (ARM) 20.25.401(8), and that ARM section 20.25.304(3) violates his right to equal protection, as guaranteed by the Fourteenth Amendment.

Kelly was initially sentenced in January 1980 to ten years imprisonment for the crime of robbery. He was designated as a “non-dangerous offender,” thereby becoming eligible for parole after he had served one quarter of his sentence less good time earned. Montana Code Annotated, MCA, § 46-23-201. After appearing before the Parole Board (“Board”) in September 1981, the Board passed him to his discharge date, citing as reasons his poor institutional conduct record, the nature of his offense and the inadequacy of his parole plan. Once Kelly was “passed to discharge,” he became entitled to a yearly review of the Board’s decision. ARM § 20.25.401(8).

In February 1982, Kelly escaped from prison. He was arrested and returned to Montana…