Sabey v. Crowther et al

Filing 43

MEMORANDUM DECISION AND ORDER GRANTING RESPONDENTS' MOTION TO DISMISS-granting 35 Motion to Dismiss ; Motions terminated: 35 MOTION to Dismiss and Memorandum in Support filed by Board of Pardons, Scott Crowther. Signed by Judge Clark Waddoups on 9/14/18. (jmr)

IN THE UNITED STATES DISTRICT COURT
IN AND FOR THE DISTRICT OF UTAH, CENTRAL DIVISION

CODY JAMES SABEY,
Petitioner,

MEMORANDUM DECISION &
ORDER GRANTING RESPONDENTS’
MOTION TO DISMISS

v.
Case No. 2:16-CV-893 CW
SCOTT CROWTHER et al.,
Respondents.

Judge Clark Waddoups

Petitioner Cody J. Sabey attacks the execution of his state sentences. 28 U.S.C.S. § 2241
(2018). After burglary convictions, he was sentenced to two five-years-to-life sentences and one
one-to-fifteen-years sentence. The Utah Board of Pardons and Parole (BOP) later granted him
parole, then revoked it and decided that Petitioner would expire his sentence in prison.
Petitioner specifically challenges the execution of his sentences as “involuntary servitude,”
mistakenly asserting that when BOP released him on parole it was taking his indeterminate
sentence and making it a determinate sentence. He apparently believes that once he was released
on parole his sentences ended. He appears to view parole, its revocation, and reinstatement of his
imprisonment under his original sentences as all beyond BOP’s authority and as violating the
Federal Constitution.
Arguing that Petitioner has not stated a claim upon which relief may be granted,
Respondent moves for dismissal. The Court grants the motion.
Respondents are entitled to dismissal if “it appears beyond doubt that the plaintiff can
prove no set of facts in support of his claim which would entitle him to relief.” Maher v.

Durango Metals, Inc., 144 F.3d 1302, 1304 (10th Cir. 1998) (quotations and citations omitted).
To survive a motion to dismiss, the Petitioner must plead “enough facts to state a claim to relief
that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007).
PAROLE GRANT DOES NOT END A SENTENCE
NOR IS IT A SEPARATE SENTENCE
It is axiomatic that “[t]he essence of parole is release from prison, before completion of the
sentence, on condition that the prisoner abide by certain rules during the balance of the sentence.
Parole is not freedom.” 59 Am. Jur. 2d Pardon and Parole § 6 (1987). Indeed, “[t]he granting of
parole to a prisoner does not terminate the sentence that he is serving. Rather, supervision in the
prison setting is replaced with supervision by probation authorities. The confinement period and
any subsequent period of parole supervision are best understood as two parts of a single
indivisible sentence.” United States v. Einspahr, 35 F.3d 505, 507 (10th Cir. 1994) (citations and
quotations omitted). A parole “[r]evocation deprives an individual, not of the absolute liberty to
which every citizen is entitled, but only of the conditional liberty properly dependent on
observance of special parole restrictions.” Morrissey v. Brewer, 408 U.S. 471, 480 (1972).
This short explanation of well-settled law defeats Petitioner’s argument, which really is so
baseless as to be frivolous.
UTAH’S INDETERMINATE SENTENCING SCHEME
Petitioner possibly also attacks the constitutionality of Utah's indeterminate-sentencing
scheme. He appears to assert 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. The same challenges were soundly rejected by the
Tenth Circuit. See Straley v. Utah Bd. of Pardons, 582 F.3d 1208 (10th Cir. 2009), cert. denied,
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130 S. Ct. 1737 (2010). Further, the Supreme Court has specified that indeterminate sentencing
schemes are constitutional. Blakely v. Washington, 542 U.S. 296, 308 (2004). The Court thus
denies any relief on this possible component of Petitioner’s claims.
BOP’S AUTHORITY TO DETERMINE ACTUAL TERM
OF IMPRISONMENT WITHIN A SENTENCING RANGE
Petitioner seems to challenge BOP's authority to determine his actual term of
imprisonment within his sentences of one-to-fifteen years and five-years-to-life. Petitioner
possibly argues that BOP should not have been able to "increase" his sentence. However, the
sentence was determined by the trial court at the time of conviction, not during 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 sentences of one-to-fifteen years and five-years-to-life
and has proposed to do nothing more. So BOP cannot possibly violate the Constitution here, no
matter how long it determines Petitioner should serve up to life in prison. Under the Federal
Constitution, Petitioner has no right to ever be considered for parole or paroled and has no right
to be released before the end of his sentence--i.e., the end of his life. Greenholtz v. Inmates of
Neb. Penal & Corr. Complex, 442 U.S. 1, 7 (1979).
STATE-LAW ISSUES
The Court next addresses any of Petitioner's possible assertion that Labrum was violated.
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

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not constitute a basis for relief. Estelle, 502 U.S. at 67; Lewis v. Jeffers, 497 U.S. 764, 780
(1990). Petitioner thus has no valid argument here based on state law.
CONCLUSION
IT IS ORDERED that Respondents’ motion to dismiss is GRANTED. (Doc. No. 35.)
This action is CLOSED.
DATED this 14th day of September, 2018.
BY THE COURT:

__________________________________
Clark Waddoups
United States District Court Judge

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