Pagel v. BoP&P

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Pagel v. BoP&P - Case No. 990246-CA IN THE UTAH COURT OF APPEALS
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Earl L. Pagel,
Petitioner and Appellant,

v.

Board of Pardons; and Hank Galetka, Warden, Utah State Prison,
Respondents and Appellees.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 990246-CA

F I L E D
(December 23, 1999)
  1999 UT App 382 -----

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

Attorneys:
Earl L. Pagel, Draper, Appellant Pro Se
Jan Graham and James H. Beadles, Salt Lake City, for Appellees

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Before Judges Wilkins, Billings, and Jackson

PER CURIAM:

Earl Pagel appeals from dismissal of his petition for extraordinary relief under Rule 65B(d) of the Utah Rules of Civil Procedure.

The Board of Pardons conceded that it did not provide a summary of confidential information to Pagel before the date of his parole hearing. The summary described the material as "[i]ncident reports dealing with verbal threats November 13, 1993." After Pagel filed the petition objecting to the use of the information, the Board conducted a Special Attention Review to reconsider its decision. The Board maintained the August 2000 rehearing date, but it clarified that the summary/information did not have a significant impact on the Board's decision. The district court dismissed the petition based on a finding that "any error in the Board's hearing process has been cured and the petitioner has been given all the procedural due process to which he is entitled."

There is no right of appeal from the Board of Pardons' decision setting Pagel's rehearing date. See Utah Code Ann. § 77-27-5(3) (1999). However, "fundamental principles of due process . . . apply to parole grant hearings." Peterson v. Utah Bd. of Pardons, 931 P.2d 147, 150 (Utah Ct. App. 1997) (citations omitted). A petitioner may seek a review of the Board's actions in a petition for extraordinary writ alleging a violation of procedural due process. See Utah R. Civ. P. 65B(d); Renn v. Utah State Bd. of Pardons, 902 P.2d 677, 683-84 (Utah 1995). Our inquiry on appeal is whether the trial court erred in dismissing the petition based upon its finding that "any error in the Board's hearing process has been cured." Ultimately, this court must decide if Pagel's right to due process was violated by the Board's actions.

The district court did not err in finding that the Board provided the relief requested in the petition and satisfied due process requirements. The Board took steps to remedy its procedural error by holding a Special Attention Review after it received notice of Pagel's claims, and it clarified that the confidential information had no significant impact on its decision. Given the case law limiting judicial review of the Board's decisions to a due process inquiry, Pagel has not demonstrated that he was denied due process despite the Board's actions to cure its procedural error. The requested relief of "correction" of the file is vague and is unsupported by any factual or legal basis for removing the materials from the file. Similarly, Pagel's request for reassignment of his prison housing and/or reinstatement of his sex offender programming is not within the Board's function of determining parole matters.

Accordingly, we affirm the dismissal of the petition.
 
 

______________________________

Michael J. Wilkins,

Presiding Judge
 
 

______________________________

Judith M. Billings, Judge
 
 
 

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Norman H. Jackson, Judge