Estes v. Van Der Veur, 910613-CA

• Decision Date: 27 January 1992
• Docket Number: No. 910613-CA,910613-CA
• Citation: 824 P.2d 1200
• Parties: Newton C. ESTES, Petitioner and Appellant, v. Fred VAN DER VEUR, Warden, Central Utah Correctional Facility, Respondent and Appellee.
• Court: Utah Court of Appeals

Page 1200

824 P.2d 1200

Newton C. ESTES, Petitioner and Appellant, v. Fred VAN DER VEUR, Warden, Central Utah Correctional Facility, Respondent and Appellee.

No. 910613-CA.

Court of Appeals of Utah.

Jan. 27, 1992.

Newton C. Estes, Gunnison, pro se.

R. Paul Van Dam and Lorenzo K. Miller, Salt Lake City, for respondent and appellee.

Before RUSSON, BENCH and GREENWOOD, JJ. (On Law and Motion).

OPINION

PER CURIAM:

This appeal is before the court on appellee's motion for summary affirmance and on appellant's motion for summary reversal and motion for declaratory judgment. Estes appeals an order dismissing his petition for writ of habeas corpus. We affirm.

On August 6, 1991, Estes filed a petition seeking a writ of habeas corpus in the Sixth Judicial District Court of Sanpete County. Estes named the acting warden of the Central Utah Correctional Facility as the sole defendant. He contended that he was unlawfully incarcerated because the board of pardons had allegedly violated the due process protections guaranteed by the Utah Constitution, based upon the recent Utah Supreme Court case of Foote v. Board of Pardons, 808 P.2d 734 (Utah 1991).

Appellee Van Der Veur's only connection to the petition is that he is the acting warden of the Central Utah Correctional Facility, and as warden, Van Der Veur has management control over the inmates housed in that facility. On August 15, 1991, appellee's counsel, the Utah Attorney General's office, filed a motion to dismiss the petition under Rule 12(b)(6), Utah Rules of Civil Procedure, for failure to state a claim for which relief may be granted. Appellee contended that the petition was improperly directed to him because it contained no allegation that appellee personally had violated appellant's constitutional rights. In response, appellant argued that the warden of a correctional facility is the correct party to be named in habeas corpus petitions. In reply, appellee contended that only the board of pardons could release appellant from custody, and the board had not been named as a party and was not required to answer. The trial court dismissed the petition on failure to state a claim for which relief could be granted against appellee Van Der Veur.

Although post conviction proceedings are civil, they are not governed by the general rules of civil procedure, but specifically by Rule 65B of the Utah Rules of Civil Procedure. ¹ See Andrews v. Morris, 607 P.2d 816, 822 (Utah 1980). Appellee contends before this court that appellant cannot proceed under Rule 65B(i) because he is not challenging the proceedings that resulted in his conviction and commitment; therefore, his petition must be considered under the provisions of Rule 65B(f). There is no indication that this argument was considered below, and an examination of the procedural differences in the two subsections is not necessary to our determination of the issues in this appeal. Rule 65B(i)(2), Utah Rules of Civil Procedure, which was in effect when the petition was filed, required that the complaint "shall state that the person seeking relief is illegally restrained of his liberty by the defendant." Similarly, Rule 65B(f)(1) required that a petition "state that the person designated is illegally restrained of his liberty by the defendant." The sole issue before this court is whether the trial court erred in dismissing the petition because it did not name the board of pardons as a respondent. There is no indication in the record before us that the trial court considered the petition on the merits, and we do not assess the merits in this appeal.

Appellee contended below, and reiterates on appeal, that the board of pardons was the proper party, not the warden, since the board determines whether the petitioner will obtain an early release or not and the warden has no power to grant the relief requested in the petition. See Utah Code Ann. § 77-27-5(1)(a) (Supp.1991). The fundamental nature of habeas corpus actions is to compel the person having physical custody of the prisoner to produce the prisoner to the court to allow examination of the legality of the imprisonment. See, e.g., 39 Am.Jur.2d Habeas Corpus § 25 (1968) ("Custody by the person against whom a petition is directed must be such that he can produce the body of the petitioner at the hearing"). Unlike some states, Utah does not...