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Gandy v. Raemisch

Court of Appeals of Colorado, Third Division

August 10, 2017

Robert D. Gandy, Plaintiff-Appellant,
v.
Rick Raemisch, Executive Director, Colorado Department of Corrections; and Steve Hager, Director of Prisons, Colorado Department of Corrections, Defendants-Appellees.

         El Paso County District Court No. 16CV45 Honorable Edward S. Colt, Judge

          Gibson, Dunn & Crutcher LLP, Timothy M. Zimmerman, Reid F. Rector, John D.W. Partridge, Denver, Colorado, for Plaintiff-Appellant

          Cynthia H. Coffman, Attorney General, Kathryn A. Starnella, Assistant Attorney General, Denver, Colorado, for Defendants-Appellees

          OPINION

          BOORAS, JUDGE

         ¶ 1 Plaintiff, Robert D. Gandy, appeals the district court's judgment dismissing his complaint under C.R.C.P. 106 against defendants, Rick Raemisch, Executive Director of the Colorado Department of Corrections (Executive Director), and Steve Hager, Director of Prisons of the Colorado Department of Corrections (Director). We affirm in part, reverse in part, and remand with directions for further proceedings.

         I. Facts and Procedural Background

         ¶ 2 Gandy is a Canadian citizen serving a habitual criminal life sentence[1] in the custody of the Colorado Department of Corrections (DOC). Gandy has applied numerous times to the DOC to be transferred to serve the remainder of his sentence in the Canadian penal system. See Gandy v. Colo. Dep't of Corr., 2012 COA 100 (Gandy III); Gandy v. Colo. Dep't of Corr., (Colo.App. No. 07CA2381, Nov. 26, 2008) (not published pursuant to C.A.R. 35(f)) (Gandy II); Gandy v. Colo. Dep't of Corr., (Colo.App. No. 03CA1056, June 24, 2004) (not published pursuant to C.A.R. 35(f)) (Gandy I). His applications have been denied.

         ¶ 3 At issue is Gandy's September 3, 2015, application for transfer. On February 8, 2016, the Director denied Gandy's application in writing, referencing the Canadian Minister of Public Safety's 2012 denial of Gandy's most recent application. The Canadian application was denied based on Gandy's length of time abroad; the infrequency of his visits; his insufficient personal support or ties to Canada; the lack of evidence the transfer would promote public safety in Canada; and lack of evidence that any of these factors had changed since Gandy's previous applications for transfer. The Director said that, under DOC Administrative Regulation 550-05, Gandy would be eligible to reapply in two years. He suggested that Gandy use the interim period to "provide documentation that would support those reasons for denial having changed." But the Director did not forward Gandy's application to the Executive Director.

         ¶ 4 Gandy filed a complaint in the district court seeking mandamus relief. He asked the court to direct the DOC to "process and submit" his application for transfer to the United States Department of Justice. He also asked for "a nominal amount for punitive damages" for alleged violations of his constitutional rights. The court granted defendants' motion to dismiss Gandy's complaint pursuant to C.R.C.P. 12(b)(5) for failure to state a claim on which relief can be granted.

         ¶ 5 Gandy appeals the district court's dismissal of his complaint, contending that he stated a claim for mandamus relief under C.R.C.P. 106. He argues that, under the applicable state statute and DOC administrative regulation, he was entitled to final review of and decision on his transfer application by the Executive Director rather than the Director. He also asserts that the Director improperly imposed a two-year waiting period and "change of circumstances" requirements for any future transfer applications. Finally, Gandy alleges several constitutional violations.

         ¶ 6 Before we address Gandy's arguments, we first describe the framework of international treaty, state statute, and DOC administrative regulation that governs the transfer of a Canadian offender to serve his remaining sentence in Canada.

         II. Laws Governing Transfer of Offenders to Canada

         A. The Treaty

         ¶ 7 In 1978, the United States and Canada entered into a treaty "to enable [o]ffenders, with their consent, to serve sentences of imprisonment or parole or supervision in the country of which they are citizens, thereby facilitating their successful reintegration into society." Treaty on the Execution of Penal Sentences, Can.-U.S., Mar. 2, 1977, 30 U.S.T. 6263 (the Treaty).

         ¶ 8 Under certain conditions, an offender may apply for a transfer from the country in which he or she is incarcerated, known as the "Sending State." Id. at art. I(a); art. III, ¶ 3. Upon approval of the federal authorities, and, if the offender is a state prisoner, the state authorities, the offender's country of citizenship, known as the "Receiving State, " must also approve the transfer. Id. at art. I(b); art. III, ¶ 3.

         ¶ 9 The Treaty provides that

         No Offender shall be transferred unless:

(a) he is under a sentence of imprisonment for life; or
(b) the sentence which he is serving states a definite termination date, or the authorities authorized to fix such a date have so acted; or
(c) he is subject to confinement, custody or supervision under the laws of the Sending State respecting juvenile offenders; or
(d) he is subject to indefinite confinement as a dangerous or habitual offender.

Id. at art. III, ¶ 7.

         ¶ 10 "After a transfer is complete, the receiving country is responsible for the cost of incarceration and may not challenge, set aside, or otherwise modify the terms of the ...


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