Montgomery, v. Utah Board of Pardons and Parole

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Montgomery, v. Utah Board of Pardons and Parole, Case No. 20000616-CA, Filed February 1, 2001 IN THE UTAH COURT OF APPEALS
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Terry G. Montgomery,
Petitioner and Appellant,

v.

Utah Board of Pardons and Parole,
Respondent and Appellee.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 20000616-CA

F I L E D
February 1, 2001 2001 UT App 32 -----

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

Attorneys:
Terry G. Montgomery, Gunnison, Appellant Pro Se

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Before Judges Bench, Davis, and Thorne.

PER CURIAM:

Terry G. Montgomery appeals the district court's denial of his petition for extraordinary relief. This case is before the court on a sua sponte motion for summary disposition.

An appellate court reviewing the dismissal of a habeas corpus petition accords "no deference to the [district court's] conclusions of law that underlie the dismissal" and reviews them for correctness. Padilla v. Utah Bd. of Pardons & Parole, 947 P.2d 664, 667 (Utah 1997) (quoting Neel v. Holden, 886 P.2d 1097, 1100 (Utah 1994)).

The district court correctly concluded that appellant's exact claim was considered and rejected by the Utah Supreme Court in Padilla, where the court held "that the Board's exercise of its parole power in setting determinate parole dates does not violate the separation of powers doctrine of article V, section 1 of the Utah Constitution." Id. at 669. Appellant's further claim that the Board's actions violated article III section 1 of the United States Constitution was also correctly dismissed. The provision applies to the "Judicial Power of the United States" and does not apply to this case concerned exclusively with the Utah sentencing scheme.

The district court's conclusions of law underlying the dismissal are a correct application of the law. Accordingly, we affirm the dismissal of the petition.
 
 
 
 

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Russell W. Bench, Judge
 
 
 
 

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James Z. Davis, Judge
 
 
 
 

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William A. Thorne, Jr., Judge