VanDam v. Turley et al

Filing 19

MEMORANDUM DECISION AND DISMISSAL ORDER- granting 9 Motion to Dismiss. This case is CLOSED. Signed by Judge Ted Stewart on 02/16/10. (mas)

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH CENTRAL DIVISION _________________________________________________________________ ) MEMORANDUM DECISION & ) DISMISSAL ORDER Petitioner, ) ) v. ) Case No. 2:08-CV-728 TS ) STEVEN TURLEY et al., ) ) Respondents. ) District Judge Ted Stewart _________________________________________________________________ STEPHEN M. VAN DAM, Petitioner, Stephen Van Dam, an inmate at Utah State Prison, filed a federal habeas corpus petition here. He challenges his

imprisonment since 1983 on convictions for rape (ten-to-life sentence) and two counts of aggravated sexual assault (five-tolife sentences). On September 24, 2008, Petitioner filed this petition, contesting his 1983 sentencing under 28 U.S.C. § 2254 and the consequent execution of his sentence (effectively) under 28 U.S.C. § 2241. Under § 2254, he argues Utah's indeterminate

sentencing scheme, under which he was sentenced, is unconstitutional. Under § 2241, he argues (1) a matrix predicting his actual imprisonment would last twelve years gave him a liberty expectation, entitling him to due process, which he was not given when his imprisonment went beyond twelve years; (2) the Utah Board of Parole and Pardons (BOP) failed to follow guidelines and provide procedures for appeal in denying Petitioner parole; (3) BOP has no written standards for parole nor criteria for denying

Petitioner parole; (4) inaccurate data in his prison/parole file (i.e., psychological evaluation concluding Petitioner is a threat to society and report that his liver disease is not significant) resulted in BOP entertaining untrue information in determining the length of his prison stay; (5) a 1996 parole date was revoked without reason or explanation; (6) Petitioner had no legal representation in appearances before BOP; (7) his double-jeopardy right was violated because BOP has repeatedly denied parole; and (8) Labrum v. Utah State Bd. of Pardons, 870 P.2d 902 (1993); Apprendi v. New Jersey, 530 U.S. 466 (2000); and Blakely v. Washington, 542 U.S. 296 (2004), were all violated. The State responded, moving the Court to deny this petition because Petitioner has filed his claims past the period of limitation, failed to exhaust his claims, and/or failed to allege a violation of federal law. ANALYSIS I. Period of Limitation

The statute setting forth the period of limitation for federal habeas petitions reads in pertinent part: A 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court. The limitation period shall run from the latest of-(A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review;

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.... (D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence. 28 U.S.C.S. § 2244(d)(1) (2010). The Court calculates the period of limitation as to Petitioner's § 2254 claim, using subsection (A) as its guide. Because Petitioner's conviction became final in 1983, before Congress passed the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), Petitioner had to file his § 2254 claims within one year of April 24, 1996, adding any time tolled by statute or equitable grounds. See id. § 2244(d); Gibson v. Klinger, 232

F.3d 799, 803, 808 (10th Cir. 2000). As to Petitioner's § 2241 claims, the Court uses subsection (D) as its guide. So, the Court begins with the date when Petitioner

Petitioner should have discovered his claims. appeared before the BOP in 1993 and 2003.

He thus should have

known on those two occasions--definitely by the end of 2003--that indeterminate sentencing applied to him, that BOP determined his release date within his sentencing range (indeed, Petitioner had already been paroled at least once), and that he had no right to an attorney at the hearings. Likewise, considering Petitioner

was convicted in 1983, he should have known by 1995 that the BOP had exceeded the twelve-year term Petitioner asserts he should have served under his matrix. For the sake of convenience, for 3

purposes of this Order only, and because it makes no difference to the final result, the Court uses just the latest possible date, December 31, 2003, to determine the running of the period of limitation on Petitioner's § 2241 claims. By statute, the one-year period of limitation is tolled for "[t]he time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending." 2244(d)(2) (2010). 28 U.S.C.S. §

Meanwhile, equitable tolling is also

available but "'only in rare and exceptional circumstances.'" Stanley v. McKune, No. 05-3100, 2005 U.S. App. LEXIS 9872, at *4 (10th Cir. May 23, 2005) (quoting Gibson, 232 F.3d at 808). Because Petitioner filed no state post-conviction or othercollateral-review applications, there are no grounds for statutory tolling, so the Court considers Petitioner's possible argument of equitable tolling. Petitioner may attempt to excuse

his failure to timely file his petition by asserting that the wrongs he suffers are of a continuing nature. "Equitable tolling will not be available in most cases, as extensions of time will only be granted if 'extraordinary circumstances' beyond a prisoner's control make it impossible to file a petition on time." Calderon v. United States Dist. Court, Those

128 F.3d 1283, 1288 (9th Cir. 1997) (citation omitted).

situations include times "'when a prisoner is actually innocent'"

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or "'when an adversary's conduct--or other uncontrollable circumstances--prevents a prisoner from timely filing, or when a prisoner actively pursues judicial remedies but files a defective pleading during the statutory period.'" Stanley, 2005 U.S. App.

LEXIS 9872, at *4 (quoting Gibson, 232 F.3d at 808 (citation omitted)). And, Petitioner "has the burden of demonstrating that Because Petitioner has not

equitable tolling should apply."

argued actual innocence, the Court focuses on possible uncontrollable circumstances--i.e., Petitioner's argument that he suffers a continuing wrong because his final--effective--sentence has never really been imposed and will not be imposed until he is released for good. Petitioner is mistaken that he has experienced a continuing wrong that can be addressed at any time, until his final release, in federal habeas proceedings. It is well settled that

"'ignorance of the law, even for an incarcerated pro se petitioner, generally does not excuse prompt filing.'" Marsh v.

Soares, 223 F.3d 1217, 1220 (10th Cir. 2000) (citation omitted). No matter what Petitioner believes, his sentences were final in 1983: one ten-to-life and two five-to-life terms. The outside

of these ranges--life--absolutely marked the outside time of his final release. Regardless of his misunderstanding about how

these sentencing ranges work, Petitioner should have known, at the very latest, by December 31, 2003, that his parole

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proceedings violated his expectations about his constitutional rights. Still he did not file this federal habeas petition until Meanwhile, as to his § 2254

nearly five years later--too late.

claim, Petitioner's time to file ran out on April 24, 1997. During the running of the federal period of limitation and beyond, Petitioner apparently took no steps himself to "diligently pursue his federal claims." His response shows no In sum, the

signs of this kind of self-directed tenacity.

circumstances raised by Petitioner did not render it beyond his control to timely file his petition here. Accordingly, the above claims before the Court were filed past the one-year period of limitation. And, neither statutory

exceptions nor equitable tolling apply to save Petitioner from the period of limitation's operation. thus denied. II. Alternative Denial on the Merits a. Utah's Indeterminate Sentencing Scheme Petitioner attacks the constitutionality of Utah's indeterminate sentencing scheme. Very recently, the same challenges were soundly rejected by the Tenth Circuit. See Petitioner's claims are

Straley v. Utah Bd. of Pardons, 582 F.3d 1208 (10th Cir. 2009). The Court thus denies any relief on the basis of Petitioner's sole § 2254 claim.

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b. Questions of State Law The Court next addresses Petitioner's assertions under § 2241 that he was entitled to release after twelve years, based on the matrix; that BOP did not protect his constitutional rights in determining not to grant him parole (by writing standards, following guidelines, providing appeal information, giving him representation, using "false" information, subjecting him to "double jeopardy"); and that Labrum was violated. Under § 2241, "[t]he 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." U.S.C.S. § 2241(c) (2010). See 28

As to BOP's decision about the length

of Petitioner's prison stay and its denial of constitutional rights in determining whether to grant parole, Petitioner never states how any of this violates any federal rights. do so effectively. After all, "there is no [federal] Nor can he

constitutional or inherent right of a convicted person to be conditionally released before the expiration of a valid sentence"--in this case, a span extending to life in prison. Greenholtz v. Inmates of Neb. Penal & Corr. Complex, 442 U.S. 1, 7 (1979). Neither does the Utah parole statute create a liberty

interest entitling prisoners to federal constitutional protection. 1994). See Malek v. Haun, 26 F.3d 1013, 1016 (10th Cir.

Also, "'[t]here is no constitutional right to an attorney

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in state post-conviction proceedings.'"

Thomas v. Gibson, 218

F.3d 1213, 1222 (10th Cir. 2000) (quoting Coleman v. Thompson, 501 U.S. 722, 752 (1991) (citations omitted)). The Court also considers Petitioner's arguments based on Labrum. See Labrum, 870 P.2d 902. Labrum is Utah law and is It is

neither controlling nor persuasive in this federal case.

well-settled that a federal court may grant habeas relief only for violations of the Constitution or laws of the United States. Estelle v. McGuire, 502 U.S. 62, 68 (1991); Rose v. Hodges, 423 U.S. 19, 21 (1975). basis for relief. Errors of state law do not constitute a Estelle, 502 U.S. at 67; Lewis v. Jeffers, 497 Petitioner thus has no valid argument here

U.S. 764, 780 (1990). based on state law.

c. Apprendi Apprendi holds that, generally, "any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." Apprendi, 530 U.S. at 490. Petitioner apparently argues that

BOP's decision to keep him in prison past his twelve-year-matrix prediction increases the penalty for his crimes without the decision of a jury. However, this is not true. The outside

penalty, from the time of sentencing, for all three of Petitioner's convictions was always life. No decision by BOP,

with or without the decision of a jury, can possibly increase 8

this penalty. Apprendi.

Petitioner simply misapprehends the meaning of

It is wholly inapplicable to this circumstance. d. Blakely

Blakely does not help Petitioner either.

In Blakely, the

Supreme Court held, in the context of Washington's determinate sentencing scheme, that a judge could not, based on a fact found by himself and not the jury, increase a defendant's sentence beyond the statutory maximum. Blakely, 542 U.S. at 308-14. This

is clearly inapposite to this case, involving a state indeterminate sentencing scheme and the determination of length of imprisonment within a valid sentencing range. Further, the

Court has already cited Straley as authority for the constitutionality of Utah's indeterminate sentencing scheme. Straley, 582 F.3d at 1213. e. Liver Transplant Petitioner's claim alleging inadequate medical treatment-i.e., that he needs a liver transplant--is inappropriately brought in this habeas petition. If Petitioner wishes to further

pursue this civil rights claim regarding the conditions of his confinement, he may do so in a § 1983 complaint. CONCLUSION Petitioner's claims are all denied because they were filed past the period of limitation and neither statutory nor equitable tolling apply. Alternatively, Petitioner's § 2254 claim is 9

denied on the merits because his attack on Utah's indeterminate sentencing scheme is invalid. Also, alternatively, Petitioner's

§ 2241 claims are denied on the merits because they do not state a violation of federal law. Finally, Petitioner's claim

regarding inadequate medical care is improperly brought in this habeas corpus case. IT IS THEREFORE ORDERED that Respondents' motion that the Court deny this petition is GRANTED. This case is CLOSED. DATED this 16th day of February, 2010. BY THE COURT: (See Docket Entry # 9.)

__________________________ TED STEWART United States District Judge

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