Hardy v. BoP&P

----ooOoo----

Edward Dale Hardy, II,
Petitioner and Appellant,

v.

State Board of Pardons and Parole;
Scott Carver, Warden, Utah State Penitentiary;
and Linda Clarke, Warden, California Training Facility,

Respondents and Appellees.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 990774-CA

F I L E D
December 14, 2000
  2000 UT App 351 -----

Third District, Salt Lake Department
The Honorable Timothy R. Hanson

Attorneys:
Craig S. Cook, Salt Lake City, for Appellant
Jan Graham and James H. Beadles, Salt Lake City, for Appellees

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Before Judges Billings, Orme, and Thorne.

BILLINGS, Judge:

Edward Dale Hardy, II (Petitioner) appeals the trial court's order dismissing his petition for extraordinary relief, arguing that the trial court erred by dismissing his petition without holding an evidentiary hearing. He claims that the trial court should not have granted the State's Rule 12(b)(6) motion because there were factual disputes which Petitioner should have been allowed to address during such a hearing. We disagree.

Petitioner misapprehends the standard for granting a Rule 12(b)(6) motion. Factual disputes are irrelevant in determining whether to grant a motion to dismiss for failure to state a legal claim.

Rule 12(b)(6) concerns the sufficiency of the pleadings, not the underlying merits of a particular case. When a 12(b)(6) motion is filed, the issue before the court is whether the petitioner has alleged enough in the complaint to state a cause of action, and this preliminary question is asked and answered before the court conducts any hearings on the case.

Alvarez v. Galetka, 933 P.2d 987, 989 (Utah 1997) (citations omitted). We conclude that neither of Petitioner's complaints state a cause of action.

Petitioner first argues that he did not receive adequate notice of his September 24, 1986 hearing. However, such a claim must be raised when there is an opportunity to do so, or it is waived. See Peterson v. Board of Pardons, 931 P.2d 147, 150-52 (Utah Ct. App. 1997). It is undisputed that Petitioner did not complain of a lack of notice at the 1986 hearing even when the Board of Pardons (Board) gave him the opportunity to do so. Thus, the claim is waived. Therefore, there is no need to hold an evidentiary hearing on the merits because, as a matter of law, the pleadings state no cause of action for lack of notice of the 1986 hearing.(1)

Petitioner next argues that the Board should have granted a new parole hearing when two disciplinary reports were expunged from his record in August 1990. The undisputed facts show that on December 14, 1993 the Board conducted a special attention review and considered the effect of the two expunged disciplinary reports on Petitioner's parole date. It was within the discretion of the Board to conduct the same. Under Hatch v. Deland, 790 P.2d 49 (Utah Ct. App. 1990), controlling law at the time, "Utah's parole statute contain[ed] no statutory limitations on the Board[] [of Pardons'] discretion to grant or deny parole." Hatch, 790 P.2d at 51. The broad wording of Hatch indicates that the Board had discretion to conduct a special attention review rather than a new hearing. Furthermore, even under Labrum v. Board of Pardons, 870 P.2d 902 (Utah 1993), Petitioner is not entitled to an evidentiary hearing. Labrum held that "due process safeguards . . . apply only [to] . . . original parole grant hearings . . . ." Id. at 913 (emphasis added). The hearing requested by Petitioner was not an original parole grant hearing.

We affirm.
 
 
 

______________________________
Judith M. Billings, Judge -----

WE CONCUR:
 
 

______________________________
Gregory K. Orme, Judge
 
 
 

______________________________
William A. Thorne, Jr., Judge

1. Furthermore, it is not clear that under the law in effect at the time of the 1986 hearing that the Board had any obligation to even hold a hearing. As we stated in Hatch v. Deland, 790 P.2d 49, 50-51 (Utah Ct. App. 1990), "the presence of a parole system by itself does not give rise to a constitutionally protected liberty interest in parole release" and . . . absent statutory language limiting a parole board's discretion, "[t]here is no constitutional or inherent right of a convicted person to be conditionally released before the expiration of a valid sentence." (citations omitted) (quoting Greenholtz v. Inmates of Neb. Penal & Correctional Complex, 442 U.S. 1, 7, 99 S. Ct. 2100, 2104 (1979)) (alteration in original).