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, 

, 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         This order and judgment is not binding precedent, except under the doctrines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, 

, 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

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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, 

, 1223

(10th Cir. 2006). See also Rachel v. Troutt, 

, 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.’” 

(quoting Hill v. SmithKline Beecham

Corp., 

, 1115 (10th Cir. 2004). “It is not enough ‘that having counsel

appointed would have assisted the [plaintiff] in presenting his strongest possible case,



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as the same could be said in any case.’” 

(quoting Rucks v. Boergermann,

, 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, 

, 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.” 

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

                                            

, 255 (10th Cir. 1988); see also Aycox v. Lytle, 

, 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.” 

. Although the decision to

award presentence incarceration credit often lies with the trial judge, see 

,

“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, 

, 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.” 

.

       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.)

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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.” 

. 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, 

, 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 

. “Rather, after considering the time [Mr.

Bacilio] spent incarcerated prior to sentencing, the [Board] determined the sentence

necessary to serve the state’s interests.” 

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 

. 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, 

, 1278 (10th Cir. 2017) (“Damage claims against state officers in their official

capacities trigger Eleventh Amendment immunity.”).




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      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




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