This is an archived article that was published on sltrib.com in 2012, and information in the article may be outdated. It is provided only for personal research purposes and may not be reprinted.
The 10th Circuit Court of Appeals has denied an appeal filed by Elroy Tillman in a bid to get the Utah Board of Pardons to reconsider his "natural life" sentence.
The court upheld federal Judge Dale Kimball's decision to dismiss Tillman's civil-rights complaint, saying it agreed he failed to state a claim on which relief could be granted.
Tillman, now 77, was convicted in 1983 of murdering 28-year-old Mark Schoenfeld in Salt Lake City. Tillman originally received a death sentence, but in 2005 the Utah Supreme Court ordered a new sentencing hearing because of information withheld from his defense attorneys. Later that year, Tillman was resentenced to five years to life in prison.
The Utah Board of Pardons decided in October 2009 that Tillman would serve "natural life" in prison with no possibility of parole. Tillman sought to contest that sentence in Utah's federal district court in January 2011, asking the court to overturn the board's decision and order it to hold a new parole hearing to "fix the ex-act [sic] number of years" he would serve.
Earlier this year, Kimball dismissed Tillman's civil-rights complaint, saying it was improperly filed and the relief sought — to either decrease or overturn his sentence — was not allowed by law. Tillman, who has consistently denied killing Schoenfeld, appealed.
But in an en banc decision, the appeals court said Tillman's complaint "seeks only an order declaring the board's conduct illegal and directing the board to conduct a new hearing at which the board must specify a parole release date for Tillman."
"Success for Tillman would mean not only a new hearing before the board but also a board decision that would effectively shorten his stay in prison," the court said, and such a claim must be brought — "if at all" — in a habeas corpus writ.