Romero v. State of Utah

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH RUDY ROMERO, MEMORANDUM DECISION & Petitioner, ORDER GRANTING MOTION TO DISMISS HABEAS PETITION v. SHANE NELSON et al., Case No. 4:18-CV-3-DN Respondents. District Judge David Nuffer Petitioner, Rudy Romero, seeks habeas-corpus relief under 28 U.S.C.S. § 2241 (2019). BACKGROUND • July 11, 1994 Petitioner sentenced to five-years-to life after pleading guilty to aggravated robbery. Romero v. Utah, 2:05-CV-315-TC (D. Utah Mar. 15, 2007) (dismissal order). • March 15, 2007 Petitioner’s past § 2241 petition in this Court dismissed, based on procedural default and failure to state federal constitutional ground for relief. Id. at 6. • November 28, 2012 BOP order that Petitioner shall “expire life sentence.” (Doc. No. 1-5, at 60.) BOP noted, “This decision is subject to review and modification by [BOP] at any time until actual release from custody.” (Id.) • March 8, 2018 Filing of this federal habeas petition. (Doc. No. 1.) Having thoroughly reviewed over 175 pages of Petitioner’s petitions and exhibits, (Doc. Nos. 1, 8 & 11), the Court distills Petitioner’s argument to this: BOP violated his federal and state constitutional rights by deciding, on various bases, that Petitioner shall expire his life sentence.1 Respondents move for dismissal. (Doc. No. 6.) ANALYSIS Section 2241 reads in pertinent part: “The Writ of habeas corpus shall not extend to a prisoner unless . . . [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). 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 sentence.” McIntosh v. U.S. Parole Comm’n, 115 F.3d 809, 811 (10th Cir. 1997) (citations omitted). 1. Utah Constitution Petitioner asserts BOP breached the Utah Constitution in determining that he shall serve out his life sentence. See, e.g., Utah Const. art. 7, § 12; Neese v. Utah Bd. of Pardons & Parole, 2017 UT 89 . The United States Supreme Court has "stated many times that 'federal habeas corpus relief does not lie for errors of state law.'" Estelle v. McGuire, 502 U.S. 62, 67 (1991) (quoting Lewis v. Jeffers, 497 U.S. 764, 780 (1990)); see also Pulley v. Harris, 465 U.S. 37, 41 (1984) ("A federal court may not issue the writ on the basis of a perceived error of state law."). The Supreme Court has repeatedly emphasized "that it is not the province of a federal habeas court to reexamine state-court determinations on state-law questions. In habeas review, a federal court is limited to deciding whether a conviction violated the Constitution, laws, or 1 Respondent possibly also raises issues of unconstitutionality of his sentence vis-à-vis Utah’s indeterminate sentencing scheme. However, Utah’s indeterminate sentencing scheme has been ruled to be constitutional. Straley v. Utah Bd. of Pardons, 582 F.3d 1208, 1213 (10th Cir. 2009). treaties of the United States." Estelle, 502 U.S. at 67 -68 (citing 28 U.S.C.S § 2241 (2019)). Thus, any of Petitioner's claims--based on alleged violations of state law--do not raise federal challenges; federal habeas review of state-law-based claims is therefore unwarranted. See Larson v. Patterson, 2:09-CV-989-PMW, 2011 U.S. Dist. LEXIS 3831 , *5-6, 2011 WL 129485 (D. Utah Jan. 14, 2011) ("Petitioner's first argument that the trial court should have . . . dismissed the charges against him is based entirely on state law. . . . Therefore, this Court will not further consider this state-law-based argument."); see also Scott v. Murphy, 343 F. App'x 338, 340 (10th Cir. 2009) (rejecting petitioner's . . . claim that "involve[d] purely matters of state law."). 2. Federal Constitution Petitioner’s argues that BOP’s decision that he must serve out his life sentence violates the Federal Constitution. Fatal to this § 2241 habeas claim, Petitioner does not say how any of his related bald allegations show 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). Utah’s indeterminate sentencing regime leaves BOP to decide within that 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). Petitioner should keep in mind 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). Moreover, it is well established that 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). And, again, Utah’s indeterminate sentencing scheme has been ruled to be constitutional. Straley, 582 F.3d at 1213 . CONCLUSION The petition does not successfully argue that the execution of Petitioner’s sentence violates the United States Constitution. IT IS THEREFORE ORDERED that: (1) Respondent’s motion to dismiss is GRANTED. (Doc. No. 6.) (2) A certificate of appealability is DENIED. (3) The Clerk of Court is directed to CLOSE this action. DATED this 26" day of November, 2019. BY THE COURT: TREE DAVID Ue United States District Court