Sabey v. Crowther et al

Filing 23

MEMORANDUM DECISION and ORDER TO AMEND DEFICIENT PETITION: denying 6 Motion to Appoint Counsel; denying 7 Motion for Service of Process (Prisoner); denying 9 Motion to Seal; denying 9 Motion for Hearing; granting 13 Mo tion for Leave to File; denying 14 Motion for Service of Process (Prisoner); granting 16 Motion for Leave to File; granting 17 Motion for Leave to File; denying 20 Motion for Summary Judgment; denying 22 Motion for settlement conferenc e. The Clerks Office shall mail Petitioner a copy of the Pro Se Litigant Guide witha proper form petition and/or civil-rights complaint for him to complete, according to the directions. Under the terms of this Order, Petitioner is moreover required to amend his petition to proceed further with this action. However, the information contained in each of those motions must be incorporated into one cohesive amended petition. Signed by Judge Clark Waddoups on 07/31/2017. (kpf)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH
CODY J. SABEY,

MEMORANDUM DECISION & ORDER
TO AMEND DEFICIENT PETITION

Petitioner,
v.
SCOTT CROWTHER et al.,

Case No. 2:16-CV-893-CW

Respondents.

District Judge Clark Waddoups

Petitioner, Cody J. Sabey, a Utah State Prison inmate, filed a pro se habeas-corpus
petition. See 28 U.S.C.S. § 2241 (2017). Reviewing the Petition, the Court concludes that it must
be amended to cure the below deficiencies if Petitioner wishes to further pursue his claims.
Deficiencies in Petition
Petition:
(a)

is not on a Court-approved form.

(b)

has possibly been supplemented by numerous other potential claims in a variety of other
documents filed in this case by Petitioner.

(c)

has claims appearing to be based on the illegality of Petitioner's current confinement;
however, the petition was apparently not submitted using the legal help Petitioner is
entitled to by his institution under the Constitution--e.g., by contract attorneys. See Lewis
v. Casey, 518 U.S. 343, 356 (1996) (requiring prisoners be given "'adequate law libraries
or adequate assistance from persons trained in the law' . . . to ensure that inmates . . .
have a reasonably adequate opportunity to file nonfrivolous legal claims challenging their
convictions or conditions of confinement") (quoting Bounds v. Smith, 430 U.S. 817, 828
(1977) (emphasis added)).

Instructions to Petitioner
Under Rule 8 of the Federal Rules of Civil Procedure an initial pleading is required to
contain "(1) a short and plain statement of the grounds upon which the court's jurisdiction
depends, . . . (2) a short and plain statement of the claim showing that the pleader is entitled to
relief, and (3) a demand for judgment for the relief the pleader seeks." Fed. R. Civ. P. 8(a). The
requirements of Rule 8(a) are intended to guarantee "that [respondents] enjoy fair notice of what
the claims against them are and the grounds upon which they rest." TV Commc'ns Network, Inc.
v. ESPN, Inc., 767 F. Supp. 1062, 1069 (D. Colo. 1991), aff’d, 964 F.2d 1022 (10th Cir. 1992).
Pro se litigants are not excused from compliance with the minimal pleading requirements
of Rule 8. "This is so because a pro se [litigant] requires no special legal training to recount the
facts surrounding his alleged injury, and he must provide such facts if the court is to determine
whether he makes out a claim on which relief can be granted." Hall v. Bellmon, 935 F.2d 1106,
1009 (10th Cir. 1991). Moreover, "it is not the proper function of the Court to assume the role of
advocate for a pro se litigant." Id. at 1110. Thus, the Court cannot "supply additional facts, [or]
construct a legal theory for [petitioner] that assumes facts that have not been pleaded." Dunn v.
White, 880 F.2d 1188, 1197 (10th Cir. 1989).
Petitioner should consider the following general points before refiling his petition. First,
the revised petition must stand entirely on its own and shall not refer to, or incorporate by
reference, any portion of the original petition or any other documents previously filed by
Petitioner. See Murray v. Archambo, 132 F.3d 609, 612 (10th Cir. 1998) (amendment supersedes
original). Second, the petitioner must clearly state whom his custodian is and name that person (a
warden or ultimate supervisor of an imprisonment facility) as the respondent. See R. 2, Rs.

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Governing § 2254 Cases in the U.S. Dist. Courts. Third, Petitioner may generally not bring civilrights claims as to the conditions of his confinement in a habeas-corpus petition. Fourth, any
claims about Petitioner's underlying conviction and/or sentencing should be brought under 28
U.S.C.S. § 2254 (2017); any claims about the execution of Petitioner's sentence should be
brought under id. § 2241. Fifth, Petitioner should seek help to prepare initial pleadings from legal
resources (e.g., contract attorneys) available where he is held.
• Utah's Indeterminate Sentencing Scheme
Petitioner possibly attacks the constitutionality of Utah's indeterminate-sentencing
scheme. The same types of challenges have been soundly rejected by the Tenth Circuit in the
past. See Straley v. Utah Bd. of Pardons, 582 F.3d 1208 (10th Cir. 2009), cert. denied, 130 S. Ct.
1737 (2010). The Court may deny any relief on the basis of this possible § 2254 claim.
Petitioner's more specific challenges to the BOP's authority to determine his actual term
of imprisonment within his sentence of one-to-fifteen years may be based on Booker, Blakely,
and Apprendi. United States v. Booker, 543 U.S. 220 (2005); Blakely v. Washington, 542 U.S.
296 (2004); Apprendi v. New Jersey, 530 U.S. 466 (2000). He again may be arguing that Utah's
indeterminate sentencing scheme, under which the trial judge imposes the sentence as a span of
time, while the BOP determines the exact time to be served within the span, is unconstitutional.
As to Booker, Blakely, and the constitutionality of indeterminate sentencing schemes,
Petitioner's assertions would fail. Booker (in which the Supreme Court explained that the federal
sentencing guidelines are advisory, 543 U.S. at 245-46) and Blakely (in which 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

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statutory maximum, 542 U.S. at 308-14) are both inapposite to this case, involving a state
indeterminate sentencing scheme and the determination of length of imprisonment within a valid
sentencing range. Further, the Supreme Court has specified that indeterminate sentencing
schemes are constitutional. Blakely, 542 U.S. at 308.
Apprendi is also inapplicable. 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 may be suggesting that
the BOP should not have been able to "increase" his sentence without a jury's findings. However,
the sentence was determined by the trial court at the time of conviction, not during the BOP's
review of the term of service within the sentence. BOP is never in a position to increase
Petitioner's term of service beyond his trial-court-imposed original sentence and has proposed to
do nothing more, and so it cannot possibly violate the Constitution here, no matter how long it
determines Petitioner should serve up to the end of the original sentence. Under the Federal
Constitution, Petitioner has no right to ever be considered for parole or paroled.
• Questions of State Law
The Court next addresses any of Petitioner's possible assertions under § 2241 that he was
entitled to an earlier release, based on "the matrix"; that BOP did not protect his constitutional
rights in determining whether to grant him parole (by following guidelines, among other things);
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." See 28
U.S.C.S. § 2241(c) (2017). As to BOP's decision about the length of Petitioner's prison stay and

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its denial of constitutional rights in determining whether to grant parole, Petitioner may not state
how any of this violates any federal rights. After all, "there is no [federal] 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). Neither
does the Utah parole statute create a liberty interest entitling prisoners to federal constitutional
protection. See Malek v. Haun, 26 F.3d 1013, 1016 (10th Cir. 1994).
The Court also addresses Petitioner's possible arguments, about due process in parole
determinations, based on Labrum. See Labrum v. Utah State Bd. of Pardons, 870 P.2d 902
(1993). Labrum is Utah law and is neither controlling nor persuasive in this federal case. It is
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). Errors of state law do not constitute a basis for relief. Estelle, 502 U.S. at 67;
Lewis v. Jeffers, 497 U.S. 764, 780 (1990). Petitioner should thus keep in mind that he has no
valid argument here based on state law.
MOTION FOR APPOINTED COUNSEL
The Court now evaluates Petitioner's motion for appointed counsel. The Court initially
notes that Petitioner has no constitutional right to appointed pro bono counsel in a federal habeas
corpus case. See United States v. Lewis, No. 97-3135-SAC, 91-10047-01-SAC, 1998 WL
1054227, at *3 (D. Kan. December 9, 1998). Moreover, because no evidentiary hearing is
required here, Petitioner has no statutory right to counsel. See Rule 8(c), R. Governing § 2254
Cases in U.S. Dist. Courts. However, the Court may in its discretion appoint counsel when "the

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interests of justice so require" for a "financially eligible person" bringing a § 2254 petition. See
18 U.S.C.S. § 3006A(a)(2)(B) (2017).
The Court has reviewed the filings in this case and determines that justice does not
require appointed counsel at this time. First, it is yet unclear that Petitioner has asserted any
colorable claims. See Lewis, 1998 WL 1054227, at *3; Oliver v. United States, 961 F.2d 1339,
1343 (7th Cir. 1992). Second, Petitioner has shown "the ability to investigate the facts necessary
for [the] issues and to articulate them in a meaningful fashion.” Lewis, 1998 WL 1054227, at *3;
Oliver, 961 F.2d at 1343. Finally, the issues in this case appear "straightforward and not so
complex as to require counsel's assistance.” Lewis, 1998 WL 1054227, at *3; Oliver, 961 F.2d at
1343. The Court thus denies for now Petitioner's motion for appointed counsel.
ORDER
Based on the foregoing, IT IS HEREBY ORDERED that:
(1) Petitioner shall have THIRTY DAYS from the date of this order to cure the
deficiencies noted above.
(2) The Clerk's Office shall mail Petitioner a copy of the Pro Se Litigant Guide with a
proper form petition and/or civil-rights complaint for him to complete, according to the
directions.
(3) If Petitioner fails to timely cure the above-noted deficiencies, as instructed herein, this
action will be dismissed without further notice.
(4) Petitioner's motion for appointed counsel is DENIED. (See Docket Entry # 6.)
However, if it later appears that counsel may be needed or of specific help, the Court may
appoint an attorney to appear on Petitioner's behalf.

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(5) Petitioner's motions for service of process are DENIED. (See Docket Entry #s 7, 12
& 14.) Such motions are unnecessary in a federal habeas case because the Court is required by
rule to screen the petition and order a respondent to answer if warranted. Further, based on this
Order, there is no valid petition on file as of now.
(6) Petitioner’s motions for his “Complaint and Application for an Extraordinary Writ” to
be placed under seal, for a hearing to discuss possible settlement, and for summary judgment are
all DENIED. (See Docket Entry #s 9, 20 & 22.) These requests are out of the ordinary and
Petitioner states no reasons for needing such actions. And, again, there is no valid petition on file
now.
(7) Petitioner’s motions to amend his petition are GRANTED. (See Docket Entry #s 13,
16, & 17.) Under the terms of this Order, Petitioner is moreover required to amend his petition to
proceed further with this action. However, the information contained in each of those motions
must be incorporated into one cohesive amended petition.
DATED this 31st day of July, 2017.
BY THE COURT:

Clark Waddoups
United States District Court Judge

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