United States District Court, D. Utah
DAVID A. DEFOE, Petitioner,
UTAH BD. OF PARDONS & PAROLE et al., Respondents.
MEMORANDUM DECISION & ORDER GRANTING MOTION TO
DISMISS HABEAS PETITION
NUFFER UNITED STATES DISTRICT COURT JUDGE.
David A. Defoe, seeks habeas-corpus relief under 28 U.S.C.S.
§ 2241 (2019).
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
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.
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
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
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.
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) ...