Moore v. State BoP

----ooOoo----

Bruce Niles Moore,
Petitioner and Appellant,

v.

State of Utah Corporation, Board of Pardons;
Michael O. Leavitt, Governor;
State Of Utah Corporation, Department of Corrections;
and Henry Galetka, Warden,
Respondents and Appellees.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 20001007-CA

F I L E D
February 23, 2001 2001 UT App 53 -----

Third District, Salt Lake Department
The Honorable Homer F. Wilkinson

Attorneys:
Bruce Niles Moore, Draper, Appellant Pro Se
Mark L. Shurtleff and Sharel S. Reber, Salt Lake City, for Appellees

-----

Before Judges Jackson, Bench, and Davis.

PER CURIAM:

Moore filed a petition for writ of habeas corpus with the trial court, contesting the decision of the Board of Pardons and Parole (Board) revoking his parole and refusing to parole him until the end of his sentence on December 18, 2001. Moore also claimed he has been subjected to cruel and unusual punishment and discrimination, that his possessions have been illegally confiscated, and his mail illegally delayed or intercepted. The trial court dismissed Moore's claims concerning parole as being frivolous and dismissed his other claims for failure to state a claim upon which relief may be granted.

We agree that Moore's claims concerning parole revocation are frivolous. The Board has broad discretion in making decisions to revoke parole. See Utah Code Ann. §§ 7-27-5,-9 (1999) (giving Board authority to determine when a prisoner may be paroled); Labrum v. Utah State Bd. of Pardons, 870 P.2d 902, 906 (Utah 1993) (stating section 77-27-9 of Utah Code grants parole board "absolute discretion in parole decisions").

The Board's refusal to parole Moore is justified for several reasons. First, he refused to sign parole agreements. In State v. Ruesga, 851 P.2d 1220, 1231 (Utah Ct. App. 1993), we held that the refusal to sign a probation agreement is sufficient grounds for revocation of probation. Because the United States Supreme Court and Utah appellate courts have treated probation and parole proceedings similarly, the trial court properly relied on Ruesga to affirm the Board's decision. See, e.g., Gagnon v. Scarpelli, 411 U.S. 778, 782, 93 S. Ct. 1756, 1759-60 (1973) (concluding there is no difference relevant to guarantee of due process between revocation of parole and revocation of probation); State v. Byington, 936 P.2d 1112, 1116 n.2, 1117 (Utah Ct. App. 1997) (discussing precedent relevant to parole and probation revocation interchangeably); State v. Martinez, 811 P.2d 205, 209-10 (Utah Ct. App. 1991) (applying requirement from parole context--that a dwelling search must be predicated on a reasonable suspicion--to search of a probationer).

Second, the Board had other reasons for its decision to revoke Moore's parole. Moore had a history of unsuccessful supervision; he refused to accept responsibility for his actions; and he was not considered a good candidate for rehabilitation. Third, Moore did not attend some parole revocation hearings. Had he done so, perhaps he could have persuaded the Board to parole him. Fourth, judicial review of the Board's decision to revoke parole is extremely limited. See Utah Code Ann. § 77-27-5(3) (1999) ("Decisions of the board in cases involving paroles, pardons, commutations or terminations of sentence . . . are final and not subject to judicial review"). Moore failed to prove the Board violated his procedural rights or that it abused its discretion. See Foote v. Utah Bd. of Pardons, 808 P.2d 734, 735 (Utah 1991); Ward v. Smith, 573 P.2d 781, 782 (Utah 1978).

Moreover, the Board had authority to issue a warrant to retake Moore into custody. See Utah Code Ann. § 77-27-11(3) (1999) ("Any Member of the Board may issue a warrant based upon a certified warrant request to a peace officer or other persons authorized to arrest, detain, and return to actual custody a parolee"). Retaking a parolee is not the same as arresting him as Moore argues. It was not necessary that Moore be brought before a magistrate or that other arrest procedures be followed because he was not "arrested."

Accordingly, the portion of the trial court's decision in which it dismisses Moore's claims concerning parole revocations is affirmed. However, because there is no indication that the trial court ever formally considered Moore's claims of cruel and unusual punishment, discrimination, confiscation of his belongings and mail, and delay of prison mail and these issues were not addressed in the State's motion to dismiss Moore's petition, these issues are remanded to the trial court for resolution. The trial court must determine if Moore has exhausted his administrative remedies with respect to these claims, if these remaining issues may be brought by petition for writ of habeas corpus, if these issues have merit, and if so, it must hold an evidentiary hearing.
 
 
 
 

______________________________
Norman H. Jackson,
Associate Presiding Judge
 
 
 
 

______________________________
Russell W. Bench, Judge
 
 
 
 

______________________________
James Z. Davis, Judge