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Waynewood v. Colorado Department of Corrections

United States District Court, D. Colorado

May 7, 2014




This matter is before the Court on the amended Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2241 (Doc. # 5) ("the Amended Application") filed pro se by Applicant, De'on Waynewood. Mr. Waynewood contends that his continuing custody violates state law and his constitutional rights because he has completed his sentence. On January 2, 2014, Respondent was ordered to show cause why the Amended Application should not be granted. Respondent has filed a Response to Order to Show Cause ("the Response") (Doc. # 24) and Mr. Waynewood has filed a Response to Respondent's Response to Order to Show Cause ("the Reply") (Doc. # 25). After reviewing the pertinent portions of the record in this case including the Amended Application, the Response, and the Reply, the Court concludes that the Amended Application should be granted.


Mr. Waynewood is in custody pursuant to his conviction and sentence in Arapahoe County, Colorado, District Court case number 99CR1918. Mr. Waynewood agreed to plead guilty to two counts of sexual assault on a child and he originally was sentenced to probation. ( See Doc. # 24-1 at 5.) After his probation was revoked Mr. Waynewood was resentenced to fourteen years in the custody of the Colorado Department of Corrections (DOC) on each count and five years of mandatory parole. ( See id. ) The prison sentences were ordered to be served concurrently and Mr. Waynewood was credited with 317 days of presentence confinement credit. ( See id. ) On March 7, 2002, the trial court issued an amended mittimus to reflect that Mr. Waynewood was subject to discretionary parole and not a term of mandatory parole in addition to his prison sentences. ( See Doc. # 24-1 at 6.) This change was prompted by the Colorado Supreme Court's decisions in Martin v. People, 27 P.3d 846 (Colo. 2001), and People v. Cooper, 27 P.3d 348 (Colo. 2001).

In Martin, 27 P.3d at 863, [the Colorado Supreme Court] held that the legislature created two systems of parole for felonious offenders convicted of crimes occurring between 1993 and 1996. The legislature provided that most felonious offenders receive a sentence to incarceration plus an additional period of mandatory parole. Id. Sex offenders, however, receive a sentence to incarceration with the parole board having the exclusive authority to grant parole within that sentence. Norton, 63 P.3d at 347. Persons convicted of offenses involving unlawful sexual behavior whose crimes were committed on or after July 1, 1996, but before July 1, 2002, are also subject to the discretionary parole provisions. § 17-2-201(5)(a.5), C.R.S. (2005); People v. Cooper, 27 P.3d 348, 356 (Colo. 2001).

People v. Rockwell, 125 P.3d 410, 415 (Colo. 2005) (footnote omitted). On April 8, 2013, the DOC received another amended mittimus that reflects a change in the date of Mr. Waynewood's offenses from August 6, 1995, to between August 6, 1995, and October 31, 1998. ( See Doc. # 24-1 at 7.)

Mr. Waynewood has been released on parole five times and his parole has been revoked four times as follows: on April 18, 2008, his parole was revoked for a period of 120 days ( see id. at 11); on January 24, 2011, his parole was revoked for 100 days ( see id. at 14); on November 21, 2011, his parole was revoked for 180 days ( see id. at 17); and on January 11, 2013, his parole again was revoked for 180 days ( see id. at 20). Mr. Waynewood most recently was released on parole on June 25, 2013, and he remains in custody on parole at this time. In computing Mr. Waynewood's sentence the DOC has determined that the time he has spent on parole is "null time" that may not be credited against his fourteen-year prison term. The parties agree that, not including the time Mr. Waynewood has spent on parole since June 25, 2013, he has been on parole for a total of four years, one month, and six days.

Mr. Waynewood contends in the Amended Application that he has completed his sentence because the time he has spent in prison and on parole, together with his presentence confinement and earned time credits, exceeds the fourteen-year prison term he was sentenced to serve. Respondent calculates Mr. Waynewood's current discharge date as follows:

Fourteen years [sic] sentence on case no. 99CR1918, less three hundred seventeen days presentence confinement credit, leaves thirteen years one month and thirteen days to serve as of the sentencing date of October 31, 2000, resulting in a completion date estimated to be December 14, 2013. This date is extended by the null periods... for a total extension of 4 years 1 month and 6 days, producing a completion date of January 19, 2018. Next, the date is reduced by granted earned time in the amount of 3 years 4 months 14 days, and 1 month projected earned time (assumed will be earned for the last 3 months of the sentence), to result in the currently estimated sentence discharge date of August 5, 2014.

(Doc. # 24 at 6, ¶19.) Mr. Waynewood explains in the Reply that "[i]t is the extension of the sentence by 4 years, 1 month and 6 days as null time' under the incorrect statute application that is the matter before this court." (Doc. # 25 at 5.)


The fundamental purpose of an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2241 "is an attack by a person in custody upon the legality of that custody, and... the traditional function of the writ is to secure release from illegal custody." Preiser v. Rodriguez, 411 U.S. 475, 484 (1973); see also McIntosh v. United States Parole Comm'n, 115 F.3d 809, 811 (10th Cir. 1997). Habeas corpus relief is warranted only if Mr. Waynewood "is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2241(c)(3).

The Court must construe Mr. Waynewood's claims and arguments liberally because he is not represented by an attorney. See Haines v. Kerner, 404 U.S. 519, 520 (1972) (per curiam); Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). However, the Court should not ...

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