United States District Court, D. Colorado
MICHAEL R. O'CONNOR, Applicant,
TRAVIS TRANI, Warden Colorado State Penitentiary, Respondent.
ORDER ON APPLICATION FOR WRIT OF HABEAS CORPUS
MICHAEL J. WATANABE, Magistrate Judge.
This case is before this Court pursuant to the Order of Reference entered August 11, 2014, and the parties' unanimous consent to disposition of this action by a United States Magistrate Judge.
Applicant, Michael R. O'Connor, has filed pro se an Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2241 (Docket No. 1) ("the Application"). On May 22, 2014, Respondent was ordered to show cause why the Application should not be granted. Respondent has filed a Response to Order to Show Cause ("the Response") (Docket No. 19) and Mr. O'Connor has filed Applicant's Response to Respondent's Response to Show Cause ("the Reply") (Docket No. 21). After reviewing the pertinent portions of the record in this case including the Application, the Response, and the Reply, the Court concludes that the Application should be denied.
Mr. O'Connor is a prisoner in the custody of the Colorado Department of Corrections ("DOC"). He is serving a sentence of thirty-six years in prison after being convicted of second degree murder in Adams County, Colorado, District Court case number 01CR2949. (See Docket No. 19-1 at 10.) Mr. O'Connor previously was convicted of second degree assault by administration of a drug in Adams County, Colorado, District Court case number 97CR1793. (See id. at 5.)
Mr. O'Connor is challenging the DOC's calculation of his parole eligibility date ("PED"). The DOC has determined as a matter of Colorado state law that Mr. O'Connor is not eligible for parole until he serves seventy-five percent of his current sentence in case number 01CR2949 because his prior conviction in case number 97CR1793 was a crime of violence. In order to determine whether the prior conviction for second degree assault was a crime of violence the DOC considered the factual circumstances of that offense as set forth in the presentence investigation report in case number 97CR1793. (See Docket No. 1 at 10; Docket No. 19-1 at 2, ¶9.) Mr. O'Connor contends he should be eligible for parole as a matter of state law after serving only fifty percent of his current sentence because he was not convicted of a crime of violence in case number 97CR1793 and the DOC may not consider the factual circumstances of an offense as reported in a presentence investigation report to determine if a prior conviction is a crime of violence. Mr. O'Connor specifically claims in the Application that the DOC's improper calculation of his PED has resulted in a violation of his constitutional right to due process. As relief Mr. O'Connor asks that the DOC be ordered to calculate his PED at fifty percent of his sentence or that he be granted a hearing before his PED is set.
Mr. O'Connor previously challenged the DOC's calculation of his PED in a state court action in the Crowley County District Court and he has attached to the Application a copy of the state court's December 19, 2011 order granting a motion to dismiss that action. (See Docket No. 1 at 19-21.) The state court reasoned as follows in concluding Mr. O'Connor was not entitled to the relief he sought as a matter of law:
1. Plaintiff was convicted of second degree murder, and previously of second degree assault. If the second degree assault conviction meets the definition of a crime of violence, then he must serve 75% of his sentence on the conviction for second degree murder before he becomes eligible for parole. C.R.S. 17-22.5-403(2)(a). The question presented is how the DOC should apply the tag of the crime of violence.
2. Plaintiff argues essentially that the statutory citation of the mittimus controls. Under his interpretation, the citation on the mittimus, C.R.S. 18-3-203(1)(e) governs; since that particular section of second degree assault is not defined as a crime of violence, he does not meet the criteria of C.R.S. 17-22.5-403(2)(a).
3. Defendants maintain that the facts of the case control. A review of the presentence report from Plaintiff's second degree assault conviction shows that Plaintiff struck the victim from behind with a club/wooden stick. By the definition of C.R.S. 18-1.3-406, Plaintiff possessed and used a deadly weapon. As such, his second degree assault conviction constitutes a crime of violence, and he does not meet the criteria of C.R.S. 17-22.5-403(2)(a).
4. There are two ways to meet the crime of violence designation. One is by a conviction for a specifically defined crime of violence ( per se crime of violence). The other is if the facts of the case justify such a designation. Plaintiff's case fits the second category. See Busch v. Gunter, 870 P.2d 586, at 588 (Colo.App. 1993) ("Thus we must examine the facts underlying his conviction to determine if plaintiff's conviction falls within the definition of a crime of violence.").
5. Because Plaintiff is serving a sentence for second degree murder and had a previous conviction for a crime of violence the provisions of 17-22.5-403(2) apply; Plaintiff is subject to the requirement that he serve 75% of his murder sentence before he is eligible for parole.
(Docket No. 1 at 19-21 (footnote omitted).) The record before the Court indicates the Crowley County District Court's order was ...