United States District Court, D. Utah
MEMORANDUM DECISION & ORDER GRANTING MOTION TO
DISMISS HABEAS PETITION
BENSON, United States District Judge
Judge Dee Benson This petition, (Doc. No. 1), attacks
Petitioner's conviction and sentencing and the consequent
execution of his sentence. 28 U.S.C.S. § 2241, 2254
(2019); see McIntosh v. U.S. Parole Comm'n, 115
F.3d 809, 811 (10th Cir. 1997) (stating 2241 petitions
“are used to attack the execution of a sentence, in
contrast to § 2254 habeas . . . proceedings, which are
used to collaterally attack the validity of a conviction and
§ 2254, Petitioner apparently argues that his conviction
violated his rights against double jeopardy and to effective
assistance of counsel, and that he was sentenced to an
unconstitutional indeterminate sentence. Under § 2241,
he argues that Utah Board of Parole and Pardons (BOP)
improperly executed his sentence by overshooting “the
matrix, ” not affording him due process, and violating
16, 2018, Respondent moved to dismiss, (Doc. No. 6), arguing
the petition was filed past the federal period of limitation,
28 U.S.C.S. § 2244(d) (2019). Nearly eighteen months
later, Petitioner has still not responded to the motion to
dismiss. Still, after thoroughly examining the documents at
hand, the Court grants the motion to dismiss.
purposes of this Order only and giving Petitioner the benefit
of the doubt, the Court assumes that the federal period of
limitation on this habeas petition started to run on the date
upon which Petitioner's state post-conviction petition
was finally rejected by the Utah Supreme Court: July 29,
2015. Winward v. State, 2015 UT 61, cert.
denied, 136 S.Ct. 1495 (2016), reh'g
denied, 136 S.Ct. 2480. A state post-conviction petition
is not “still ‘pending' when the state courts
have entered a final judgment on the matter but a petition
for certiorari has been filed in [the United States Supreme
Court].” Lawrence v. Florida, 549 U.S. 327,
the very latest the federal period of limitation could have
started running here is July 29, 2015. Using that date, the
Court calculates its expiration on July 28, 2016. This
petition was not filed until nearly eleven months later, on
June 13, 2017. See 28 U.S.C.S. § 2244(d)
(2019). And, Petitioner has not suggested any reason why the
one-year limitation period should be tolled. See,
e.g., id. § 2244(d)(2) (statutory
tolling); Gibson v. Klinger, 232 F.3d 799, 808 (10th
Cir. 2000) (equitable tolling). Petitioner's attacks on
his conviction and sentencing are therefore denied as
argues BOP's decision that he must serve out his life
sentence violates constitutional principles. But, fatal to
his § 2241 arguments, Petitioner does not validly argue
that “[h]e is in custody in violation of the
Constitution or laws or treaties of the United States.”
28 U.S.C.S. § 2241(c)(3) (2019).
true that Utah's indeterminate sentencing regime leaves
BOP to decide within his indeterminate term just how long
Petitioner will serve. See Baker v. Utah Bd. of Pardons
and Parole, No. 2:16-CV-756 DN, 2019 U.S. Dist.
LEXIS 72931, at *5-6, 2019 WL 1896578 (D. Utah Apr. 29,
2019). But, though Petitioner does not acknowledge this fact,
Utah's indeterminate sentencing scheme has been
explicitly ruled to be constitutional. Straley v. Utah
Bd. Of Pardons, 582 F.3d 1208, 1213 (10th Cir. 2009).
it is well settled that “[t]here is no constitutional
or inherent right of a convicted person to be conditionally
released before the expiration of a valid sentence.”
Greenholtz v. Inmates of Neb. Penal & Corr.
Complex, 442 U.S. 1, 7 (1979). “Parole is a
privilege, ” not a federal constitutional right.
Lustgarden v. Gunter, 966 F.2d 552, 555 (10th Cir.
1992). More specifically, the Utah parole statute does not
create a liberty interest entitling prisoners to federal
constitutional protection. Malek v. Haun, 26 F.3d
1013, 1016 (10th Cir. 1994).
based on Labrum v. Utah State Bd. of Pardons, 870
P.2d 902 (Utah 1993), Petitioner argues his due-process
rights were violated in parole determinations. However,
because Labrum is Utah law, it is neither
controlling nor persuasive in this federal case. Again,
federal habeas relief is triggered only by violations of the
United States Constitution or laws. Estelle v.
McGuire, 502 U.S. 62, 68 (1991); Rose v.
Hodges, 423 U.S. 19, 21 (1975). Errors of state law do
not constitute a basis for relief. Estelle v.
McGuire, 502 U.S. 62, 67 (1991); Lewis v.
Jeffers, 497 U.S. 764, 780 (1990). Petitioner's
arguments based on state law are thus unavailing.
§ 2254 claims are untimely, with no basis for tolling.
Moreover, Petitioner's § 2241 claims do not state
federal constitutional violations. In sum, he ...