Lakhumna v. Powell

Filing 6

MEMORANDUM DECISION AND ORDER TO SHOW CAUSE. IT IS ORDERED that Petitioner must within thirty days SHOW CAUSE why this petition should not be denied based on the analyses contained herein. Signed by Judge Dale A. Kimball on 6/4/2024. (eat)

THE UNITED STATES DISTRICT COURT
DISTRICT OF UTAH
VIVEK LAKHUMNA,
Petitioner,
v.

MEMORANDUM DECISION
& ORDER TO SHOW CAUSE
Case No. 2:23-CV-577 DAK

WARDEN ROBERT POWELL,

District Judge Dale A. Kimball

Respondent.
Petitioner, Vivek Lakhumna, has filed a petition under 28 U.S.C.S. § 2241 (2024), in
which he apparently attacks both (a) his state conviction and sentencing and (b) the execution of
his sentence, though § 2241 is meant just for challenging sentence execution. See 28 U.S.C.S. §§
2241, 2254 (2024).
After a state conviction for "attempted rape of a child," Petitioner was sentenced, on June
2, 2003, to "3-100" years in prison. (ECF Nos. 1, at 1, 15; 1-2, at 7.) Petitioner has attached to his
petition a Utah Board of Pardons and Parole (UBOP) June 13, 2023 decision on a "Special
Attention Review," stating that Petitioner's sentence expires on May 18, 2103.1 (ECF No. 1-2, at
7.)
Presumably under the actually applicable § 2254, Petitioner attacks his conviction and
sentencing, alleging his federal constitutional rights were violated by (a) his guilty plea "to a

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Petitioner sometimes seems to suggest he is challenging a parole revocation and other times suggests he is
challenging UBOP's decision to not parole him. Based on the attached decision and the Petition's context, the Court
understands Petitioner to be challenging UBOP's decision to not parole him. Petitioner is welcome to provide further
details if the Court misunderstands the challenge.

non-existent penal code"; (b) his conviction "solely on the basis of an uncorroborated out-ofcourt confession"; (c) lack of a voluntary plea; (d) trial court's refusal "to adhere to rules of civil
procedure"; (e) inducement "by his counsel and prosecutor to accept a plea bargain, on the
fraudent [sic] premise that Petitioner would not serve more than 3-years"; and (f) Utah’s
indeterminate sentencing scheme, under which Utah Board of Pardons and Parole (UBOP)
decides the time to be served within the sentence imposed by the state trial court. (ECF No. 1, at
15-17, 19.)
Brought correctly under § 2241, Petitioner attacks the execution of his sentence, under
the umbrella that his federal constitutional rights were violated by UBOP, as it determined and
issued its decision, on June 13, 2023,2 to not award Petitioner parole. (Id. at 7; ECF No. 1-2, at
7.) The following challenges fall under this umbrella: (a) UBOP removed documents from and
did not provide Petitioner his board file; (b) UBOP gave "Petitioner an eleven years rehearing on
a first time parole violation"; (c) as to his potential parole, UBOP "is treating Petitioner more
harshly than other similarly situated offenders"; (d) UBOP "has mandated treatment as a
condition of parole"; (e) UBOP "lacks substantial reason to support the BOP decision"; (f)
UBOP "has altered Petitioner's legislative sentence to a capital punishment"; (g) UBOP "did not
allow Petitioner to present documents and to be heard"; (h) UBOP "did not adhere to their own
regulations"; (i) UBOP's determination of "aggravating factors"; and (j) UBOP's "restitution
order."3 (ECF No. 1, at 11-15.)

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The decision specifically notes, "This decision is subject to review and modification by the Board of
Pardons at any time until actual release from custody." (ECF No. 1-2, at 7.)
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The docket for Petitioner's underlying criminal case shows the state trial court's orders regarding restitution.
See State v. Lakhumna, No. 021701798 (Utah Dist. Ct. Feb. 21, 2024) (entering "remaining unpaid restitution as
Civil judgment of Restitution against Vivek Lakhumna, judgment debtor"). Thus, it appears Petitioner is incorrect

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The petition must be dismissed 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 the
Court’s screening of the petition, 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).
I. SECTION 2254 CLAIMS
Petitioner has a separate § 2254 petition pending before the Court. Lakhumna v. Powell,
No. 2:23-CV-808-HCN (D. Utah filed Nov. 3, 2023). Some of the issues raised in this action are
similar to those raised in that separate § 2254 petition; others are possibly not included in the
other action. In any event, Petitioner's § 2254 claims here will not be considered further. They
must be raised in the other petition if at all. If Petitioner wants to raise any of his § 2254 claims
from this petition in his other petition, he should make a motion to amend his petition in the
other case.
II. SECTION 2241 CLAIMS
A. BOP’S AUTHORITY TO DETERMINE ACTUAL TERM
OF IMPRISONMENT WITHIN A SENTENCING RANGE
Petitioner argues UBOP violated his federal constitutional rights in a variety of ways
when determining not to offer him a parole date. However--under the Federal Constitution-Petitioner has no right to ever be considered for parole, or to be paroled, with no right to be
released before the end of his sentence--i.e., 100 years served. Greenholtz v. Inmates of Neb.
Penal & Corr. Complex, 442 U.S. 1, 7 (1979). Petitioner's sentence was determined by the trial

that UBOP issued a maverick and unauthorized restitution order on its own. This challenge is therefore not
considered further.

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court at the time of conviction, not during UBOP's review of the term of service within the
sentence. UBOP is never in a position to increase Petitioner's term of service beyond his trialcourt-imposed sentence of 3-to-100 years and has done nothing more. So UBOP cannot possibly
violate the Constitution here, no matter how long it determines Petitioner should serve--up to 100
years in prison. Thus, none of the issues Petitioner's raises underlying UBOP's determination not
to offer him parole are valid.
B. STATE-LAW ISSUES
The Court next addresses Petitioner's possible assertion that Utah law was violated
regarding (i) UBOP removing "documents from Petitioner's board file," in violation of "Utah
Code 77-27-13(5)(a) (1998)"; (ii) his rights to the timing of his parole hearings as "explicitly
conferred by . . . state" statute; (iii) failure of UBOP to allow Petitioner to speak, present
documents and ask questions, under "Utah Admin. Code R671-301-1(B)"; and (iv) UBOP's
refusal to "request a review and obtain a recommendation" under "Utah Admin. Code R671-3111(4) (2020)," as to Petitioner's request for "a special attention review." (ECF No. 3, at 1-3, 7.)
However, 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 thus has no valid argument
here based on state law.

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III. CONCLUSION
IT IS ORDERED that Petitioner must within thirty days SHOW CAUSE why this
petition should not be denied based on the above analyses.
DATED this 4th day of June, 2024.
BY THE COURT:

__________________________________
JUDGE DALE A. KIMBALL
United States District Court

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