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Defoe v. Utah BD. of Pardons & Parole

United States District Court, D. Utah

September 14, 2019

DAVID A. DEFOE, Petitioner,
v.
UTAH BD. OF PARDONS & PAROLE et al., Respondents.

          MEMORANDUM DECISION & ORDER GRANTING MOTION TO DISMISS HABEAS PETITION

          DAVID NUFFER UNITED STATES DISTRICT COURT JUDGE.

         Petitioner, David A. Defoe, seeks habeas-corpus relief under 28 U.S.C.S. § 2241 (2019).

         BACKGROUND

         • January 20, 1978 Utah state court gives Petitioner consecutive sentences of five-years-to-life on murder conviction and one-to-fifteen years on forgery conviction. Defoe v. Bd. of Pardons and Parole, No. 20160471-CA, slip op., at 1 (Utah Ct. App. Oct. 11, 2016).

         • January 29, 2008 Petitioner released on parole. (Doc. Nos. 4 & 6.)

         • June 25, 2008 Petitioner returned to prison. (Doc. No. 4-3, at 12.) “Warrant Request & Parole Violation Report” filed, detailing allegations of violated parole conditions. (Doc. No. 4-1.)

         • July 28, 2008 Utah Board of Pardons and Parole (BOP) revoked Petitioner's parole, stating, “Schedule for rehearing 7/2009 with a PSYCHOLOGICAL EVALUATION (including a recommendation as to his risk to the community) due prior to the hearing.” (Doc. Nos. 4-1 & 6.)

         • July 7, 2009 BOP rehearing on Petitioner's status. (Doc. No. 4-1.)

         • July 20, 2009 BOP order that Petitioner “will serve his Natural Life in Prison.” (Id.) BOP noted that “[t]his decision is subject to review and modification by [BOP] at any time until actual release from custody.” (Id.)

         • March 31, 2015 Petitioner “Request for Redetermination or Special Attention Request.” (Doc. No. 4-3.)

         • April 22, 2015 BOP order on “Special Attention Review, ” determining that Petitioner would “EXPIRE LIFE SENTENCE.” (Doc. No. 4-3, at 7.)

         • May 12, 2015 Responding to Petitioner's request for reconsideration, Hearing Officer L. Andy Taylor wrote on BOP letterhead, “The Board will not reconsider its previous decision at this time, nor at any time in the near future.”

         • October 27, 2015 Petitioner state application for post-conviction relief. (Doc. No. 4-6, at 2.) Grounds for relief listed: BOP (a) exceeded a cap of thirty years on sentence length under state statute; (b) violated Petitioner's due-process rights as outlined in state statute; and (c) did not apply a recently passed state statute to his sentence. (Doc. No. 4, at 9.)

         • May 23, 2016 State application for post-conviction relief denied by state district court. (Doc. No. 4.) District court stated, “Petitioner makes no allegation that his due process rights were violated as to any of his parole hearings, or as to his parole revocation”; therefore, it did not review that issue. (Doc. No. 4-6, at 11.)

         • October 11, 2016 Denial of state application for post-conviction relief affirmed by Utah Court of Appeals. (Doc. No. 4.) Court of Appeals stated, “Defoe does not assert that he was denied a parole revocation hearing or that he was not given proper notice regarding the proceedings. Instead, he appears to challenge only the outcome of being required to serve his original sentence.” Defoe, No. 20160471, at 3.

         • February 1, 2017 Denial of petition for certiorari in Utah Supreme Court. Defoe v. Bd. of Pardons and Parole, No. 20160948-SC, slip op. (Utah Feb. 1, 2017).

         • March 4, 2018 Filing of this federal habeas petition. (Doc. No. 4.)

         Petitioner asserts the following grounds for relief here: BOP violated his due-process rights by not (1) abiding by state statute allegedly limiting total consecutive time served on sentences to thirty years, cf. Utah Code Ann. § 76-3-401(6) (2019); (2) adhering to state statute and Morrissey v Brewer, 408 U.S. 471 (1972), in basing its decision on “predetermined conclusions and failing to base their decision to revoke on a factual inquiry into whether [Petitioner] actually violated the terms of [his] parole”; (3) ...


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