FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT July 11, 2019 _________________________________ Elisabeth A. Shumaker Clerk of Court MIGUEL ANGEL BACILIO,
Plaintiff - Appellee,
v. No. 18-4155 (D.C. No. 2:15-CV-00233-CW) CURTIS L. GARNER, Chairman, (D. Utah)
Defendant - Appellant. _________________________________
ORDER AND JUDGMENT* _________________________________
Before BACHARACH, McKAY, and MORITZ, Circuit Judges.** _________________________________
Before us are Appellant Curtis Garner’s appeal of the district court’s order
denying his motion to dismiss on the basis of absolute and qualified immunity, and
Appellee Miguel Bacilio’s motions for the appointment of counsel and for leave to
file a supplemental appendix.
“We review de novo the district court’s denial of a motion to dismiss based on
qualified immunity.” Apodaca v. Raemisch, 864 F.3d 1071, 1076 (10th Cir. 2017).
* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. ** After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist in the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore submitted without oral argument. “Because the district court denied a Rule 12(b)(6) motion to dismiss, we confine our
review to the allegations set forth in the complaint, accept all well-pleaded
allegations in the complaint as true, and draw all reasonable inferences in
[Mr. Bacilio]’s favor.” Kamplain v. Curry Cty. Bd. of Comm’rs, 159 F.3d 1248, 1250
(10th Cir. 1998). Mr. Bacilio’s complaint against Mr. Garner (and other defendants
the district court dismissed) asserts that Mr. Garner, as Chairman of the Utah Board
of Pardons and Parole, “illegally incarcerated” Mr. Bacilio beyond his “legally
mandated term of incarceration,” thereby violating his due process rights.
(Appellant’s App. at 7.)
Specifically, Mr. Bacilio’s complaint states that he was incarcerated in Utah
from the time of his arrest in December 2006 until he accepted a plea agreement for
second-degree manslaughter in August 2009 and was sentenced to five years’
imprisonment. In November 2009, the Utah Board of Pardons and Parole notified
Mr. Bacilio that he would only be given presentence incarceration credit for the time
from December 2006 until August 2007 because that is when Texas filed a detainer
against him. According to Mr. Bacilio, the Texas detainer expired after 90 days and
Texas never extradited him. Although Mr. Bacilio wrote to the Board about this
issue, his complaint does not allege that he attempted to appeal or otherwise legally
challenge the denial of those two years of presentence incarceration credit during his
imprisonment. Instead, he remained in a Utah prison until November 2013, at which
point he was released to the custody of Texas, which he alleges “lack[ed] proper
authority, [because the] detainer and warrant had expired and Texas had not
2 renewed.” (Id. at 9.) Mr. Bacilio then filed this § 1983 claim seeking damages
against Mr. Garner as Chairman of the Board that had denied the presentence
incarceration credit he claims.
Considering first Mr. Bacilio’s motions, 10th Circuit Rule 30.2(A)(1) provides
that “[a]n appellee who believes that the appellant’s appendix omits items that should
be included may file a supplemental appendix with the answer brief.” Although
Mr. Bacilio did not submit his motion for leave to file a supplemental appendix until
three months after submitting his answer brief, Rule 30.2(B) entitles this court to
accept other appendices. In our discretion, we grant Mr. Bacilio’s motion to file his
supplemental appendix.
As for Mr. Bacilio’s motion for the appointment of counsel on appeal, this is a
civil action for money damages filed by Mr. Bacilio. In such a case, the court may
request an attorney to represent the plaintiff pro bono, see 28 U.S.C. § 1915(e)(1),
but the applicant bears the burden of convincing the court that his claim is
sufficiently meritorious to warrant counsel, Steffey v. Orman, 461 F.3d 1218, 1223
(10th Cir. 2006). See also Rachel v. Troutt, 820 F.3d 390, 396–97 (10th Cir. 2016).
In addition to the merits of the plaintiff’s claims, we consider “‘the nature and
complexity of the factual and legal issues, and the [plaintiff]’s ability to investigate
the facts and present his claims.’” Id. at 1224 (quoting Hill v. SmithKline Beecham
Corp., 393 F.3d 1111, 1115 (10th Cir. 2004). “It is not enough ‘that having counsel
appointed would have assisted the [plaintiff] in presenting his strongest possible case,
3 as the same could be said in any case.’” Id. at 1223 (quoting Rucks v. Boergermann,
57 F.3d 978, 979 (10th Cir. 1995)) (internal brackets omitted).
Mr. Bacilio contends that we should request an attorney to represent him
because his case is factually and legally complex, he has limited ability to investigate
the pertinent facts and to present his claims, he and Mr. Garner have presented
different versions of the facts, and unlawful confinement would constitute a due
process violation. These arguments are largely tangential to the question presented in
Mr. Bacilio’s motion: whether we should request counsel to represent him in this
appeal, which deals only with Mr. Garner’s entitlement to immunity. Because this
issue is readily resolvable based on the cases discussed below, we see no need to
request counsel for Mr. Bacilio in this appeal.
Qualified immunity will shield a government official from civil damages
liability so long as his “conduct d[id] not violate clearly established federal statutory
or constitutional rights of which a reasonable person would have known.” Riggins v.
Goodman, 572 F.3d 1101, 1107 (10th Cir. 2009) (internal quotation marks and
brackets omitted). “For purposes of the appeal, we accept the facts as the plaintiff
alleges them; however, the Supreme Court has held that qualified immunity is proper
when the record plainly demonstrates no constitutional right has been violated, or
that the allegations do not offend clearly established law.” Id.
The denial of credit for presentence incarceration only has the potential to
implicate due process when it results in a sentence outside the maximum set by state
law or when the process employed is fundamentally unfair. Vasquez v. Cooper, 862
4 F.2d 250, 255 (10th Cir.
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FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT July 11, 2019 _________________________________ Elisabeth A. Shumaker Clerk of Court MIGUEL ANGEL BACILIO,
Plaintiff - Appellee,
v. No. 18-4155 (D.C. No. 2:15-CV-00233-CW) CURTIS L. GARNER, Chairman, (D. Utah)
Defendant - Appellant. _________________________________
ORDER AND JUDGMENT* _________________________________
Before BACHARACH, McKAY, and MORITZ, Circuit Judges.** _________________________________
Before us are Appellant Curtis Garner’s appeal of the district court’s order
denying his motion to dismiss on the basis of absolute and qualified immunity, and
Appellee Miguel Bacilio’s motions for the appointment of counsel and for leave to
file a supplemental appendix.
“We review de novo the district court’s denial of a motion to dismiss based on
qualified immunity.” Apodaca v. Raemisch, 864 F.3d 1071, 1076 (10th Cir. 2017).
* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. ** After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist in the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore submitted without oral argument. “Because the district court denied a Rule 12(b)(6) motion to dismiss, we confine our
review to the allegations set forth in the complaint, accept all well-pleaded
allegations in the complaint as true, and draw all reasonable inferences in
[Mr. Bacilio]’s favor.” Kamplain v. Curry Cty. Bd. of Comm’rs, 159 F.3d 1248, 1250
(10th Cir. 1998). Mr. Bacilio’s complaint against Mr. Garner (and other defendants
the district court dismissed) asserts that Mr. Garner, as Chairman of the Utah Board
of Pardons and Parole, “illegally incarcerated” Mr. Bacilio beyond his “legally
mandated term of incarceration,” thereby violating his due process rights.
(Appellant’s App. at 7.)
Specifically, Mr. Bacilio’s complaint states that he was incarcerated in Utah
from the time of his arrest in December 2006 until he accepted a plea agreement for
second-degree manslaughter in August 2009 and was sentenced to five years’
imprisonment. In November 2009, the Utah Board of Pardons and Parole notified
Mr. Bacilio that he would only be given presentence incarceration credit for the time
from December 2006 until August 2007 because that is when Texas filed a detainer
against him. According to Mr. Bacilio, the Texas detainer expired after 90 days and
Texas never extradited him. Although Mr. Bacilio wrote to the Board about this
issue, his complaint does not allege that he attempted to appeal or otherwise legally
challenge the denial of those two years of presentence incarceration credit during his
imprisonment. Instead, he remained in a Utah prison until November 2013, at which
point he was released to the custody of Texas, which he alleges “lack[ed] proper
authority, [because the] detainer and warrant had expired and Texas had not
2 renewed.” (Id. at 9.) Mr. Bacilio then filed this § 1983 claim seeking damages
against Mr. Garner as Chairman of the Board that had denied the presentence
incarceration credit he claims.
Considering first Mr. Bacilio’s motions, 10th Circuit Rule 30.2(A)(1) provides
that “[a]n appellee who believes that the appellant’s appendix omits items that should
be included may file a supplemental appendix with the answer brief.” Although
Mr. Bacilio did not submit his motion for leave to file a supplemental appendix until
three months after submitting his answer brief, Rule 30.2(B) entitles this court to
accept other appendices. In our discretion, we grant Mr. Bacilio’s motion to file his
supplemental appendix.
As for Mr. Bacilio’s motion for the appointment of counsel on appeal, this is a
civil action for money damages filed by Mr. Bacilio. In such a case, the court may
request an attorney to represent the plaintiff pro bono, see 28 U.S.C. § 1915(e)(1),
but the applicant bears the burden of convincing the court that his claim is
sufficiently meritorious to warrant counsel, Steffey v. Orman, 461 F.3d 1218, 1223
(10th Cir. 2006). See also Rachel v. Troutt, 820 F.3d 390, 396–97 (10th Cir. 2016).
In addition to the merits of the plaintiff’s claims, we consider “‘the nature and
complexity of the factual and legal issues, and the [plaintiff]’s ability to investigate
the facts and present his claims.’” Id. at 1224 (quoting Hill v. SmithKline Beecham
Corp., 393 F.3d 1111, 1115 (10th Cir. 2004). “It is not enough ‘that having counsel
appointed would have assisted the [plaintiff] in presenting his strongest possible case,
3 as the same could be said in any case.’” Id. at 1223 (quoting Rucks v. Boergermann,
57 F.3d 978, 979 (10th Cir. 1995)) (internal brackets omitted).
Mr. Bacilio contends that we should request an attorney to represent him
because his case is factually and legally complex, he has limited ability to investigate
the pertinent facts and to present his claims, he and Mr. Garner have presented
different versions of the facts, and unlawful confinement would constitute a due
process violation. These arguments are largely tangential to the question presented in
Mr. Bacilio’s motion: whether we should request counsel to represent him in this
appeal, which deals only with Mr. Garner’s entitlement to immunity. Because this
issue is readily resolvable based on the cases discussed below, we see no need to
request counsel for Mr. Bacilio in this appeal.
Qualified immunity will shield a government official from civil damages
liability so long as his “conduct d[id] not violate clearly established federal statutory
or constitutional rights of which a reasonable person would have known.” Riggins v.
Goodman, 572 F.3d 1101, 1107 (10th Cir. 2009) (internal quotation marks and
brackets omitted). “For purposes of the appeal, we accept the facts as the plaintiff
alleges them; however, the Supreme Court has held that qualified immunity is proper
when the record plainly demonstrates no constitutional right has been violated, or
that the allegations do not offend clearly established law.” Id.
The denial of credit for presentence incarceration only has the potential to
implicate due process when it results in a sentence outside the maximum set by state
law or when the process employed is fundamentally unfair. Vasquez v. Cooper, 862
4 F.2d 250, 255 (10th Cir. 1988); see also Aycox v. Lytle, 196 F.3d 1174, 1179–80
(10th Cir. 1999). This is because “the period of incarceration within [the time set by
statute] is necessarily discretionary” and no one has a “right to a particular sentence
within the statutory limits.” Vasquez, 862 F.2d at 255. Although the decision to
award presentence incarceration credit often lies with the trial judge, see id., in Utah,
“it is . . . the Board of Pardons, and not the trial court, which has authority to grant
[a] defendant credit for the time he served prior to conviction,” State v. Alvillar, 748
P.2d 207, 209 (Utah Ct. App. 1988).
Mr. Bacilio was convicted of manslaughter, which is a second-degree felony
under Utah law. See Utah Code Ann. § 76-5-205(3). As a second-degree felony, it
carried a statutory maximum of 15 years’ imprisonment. See Utah Code Ann. § 76-
3-203(2). Mr. Bacilio contends that he effectively served seven years, which is well
below the statutory maximum. That the trial court chose based on the plea agreement
to sentence Bacilio to a five-year sentence—the top of the range for a third-degree
felony—does not change this result, as Mr. Bacilio’s conviction remained a second-
degree felony carrying a statutory maximum of 15 years. “The due process analysis
in this case, therefore, turns on whether the process of imposing the sentence was
fundamentally fair.” Vasquez, 862 F.2d at 255.
Mr. Bacilio contends that Mr. Garner’s actions in determining his presentence
incarceration credit were “wholly outside” Mr. Garner’s “duties, respons[i]bilities, or
authority.” (Appellee’s Br. at 5.) He also asserts that Mr. Garner had “no duty to act
contrary to [the] plea agreement nor the duty to disregard a court order.” (Id.)
5 However, “[a]warding ‘credit’ for presentencing jail time is, by its nature, a reduction
of the given sentence,” and “[t]he decision whether to reduce a sentence is
discretionary.” Vasquez, 862 F.2d at 255. Moreover, “the Utah Supreme Court has
consistently held that the power to reduce or terminate sentences is exclusive with the
Board of Pardons.” Rawlings v. Holden, 869 P.2d 958, 961 (Utah 1994) (internal
quotation marks and brackets omitted).
As in Vasquez, “[t]his is not a case in which a person is denied his freedom
simply because of an inability to pay a fine; nor is this a case in which the sentencing
judge did not even consider the fact that the convicted person spent time in custody
prior to sentencing.” 862 P.2d at 255. “Rather, after considering the time [Mr.
Bacilio] spent incarcerated prior to sentencing, the [Board] determined the sentence
necessary to serve the state’s interests.” Id. Because the sentence was not
fundamentally unfair, there was no violation of any constitutional right or clearly
established law, and Mr. Garner is entitled to qualified immunity. See Riggins, 572
F.3d at 1107. Moreover, to the extent that Mr. Bacilio’s claim seeks damages against
Mr. Garner in his official capacity as Chairman of the Utah Board of Pardons and
Parole, it is barred by the Eleventh Amendment. See Colby v. Herrick, 849 F.3d
1273, 1278 (10th Cir. 2017) (“Damage claims against state officers in their official
capacities trigger Eleventh Amendment immunity.”).
6 Therefore, Mr. Bacilio’s motion to file a supplemental appendix is
GRANTED. His motion for the appointment of an attorney on appeal is DENIED.
Finally, the district court’s order denying Mr. Garner’s motion to dismiss is
REVERSED, and this case is REMANDED to the district court for dismissal based
on Mr. Garner’s qualified immunity.
Entered for the Court
Monroe G. McKay Circuit Judge