Romero v. State of Utah et al

Filing 12

Memorandum Decision and Order: It is ordered that: Respondent's motion to dismiss is granted 6 Motion to Dismiss for Failure to State a Claim. A certificate of appealability is DENIED. The Clerk of Court is directed to CLOSE this action. Signed by Judge David Nuffer on 11/26/2019. (kpf)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH
RUDY ROMERO,
Petitioner,
v.
SHANE NELSON et al.,
Respondents.

MEMORANDUM DECISION &
ORDER GRANTING MOTION TO
DISMISS HABEAS PETITION
Case No. 4:18-CV-3-DN
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

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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).

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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,

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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 26th day of November, 2019.
BY THE COURT:

JUDGE DAVID NUFFER
United States District Court

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