United States District Court, D. Colorado
ORDER ON APPLICATION FOR A WRIT OF HABEAS
BROOKE JACKSON UNITED STATES DISTRICT JUDGE.
Dean Wildermuth, has filed an Application for a Writ of
Habeas Corpus Pursuant to 28 U.S.C. § 2241 (Docket No.
7) challenging a decision by the Colorado Parole Board to
deny him parole. Respondents have filed a Response to the
Application (Docket No. 21), and Applicant has filed a Reply.
(ECF No. 22). For the reasons discussed below, the
Application is DENIED.
Background and Habeas Application
Wildermuth was convicted of first degree murder in 1975.
(Docket No. 7 at 6). He is serving a life sentence, with the
possibility of parole. (Id. at 12, 15). Applicant
has appeared before the Colorado Parole Board several times,
but has been denied parole each time. See Wildermuth v.
Furlong, 147 F.3d 1234, 1235 (10th Cir.
1998). (See also Docket No. 7 at 20; 8/8/12 Notice
of Colorado Parole Board Action). Most recently, Mr.
Wildermuth was denied parole on August 5, 2015. (Id.
at 21; 8/5/15 Notice of Colorado Parole Board Action). He is
eligible for parole consideration again in 2020.
(Id. at 19).
Wildermuth initiated this action on August 2, 2016. In the
§ 2241 Application, he claims that the Colorado Parole
Board's August 5, 2015 decision to deny him parole
violated his federal due process rights. (Id. at 6,
11-12, 21). Applicant further claims that the Parole
Board's decision was arbitrary and capricious and
constituted an abuse of discretion. (Id. at 8, 11).
Mr. Wildermuth asserts that he was not given sufficient
notice of the reasons for denial; that the Board failed to
consider any positive and extenuating circumstances
concerning his behavior in prison; and, that he was not
informed about what steps he should take to enhance his
chances of being released at his next parole review.
(Id. at 7, 8). For relief, Mr. Wildermuth seeks a
court order directing the Colorado Parole Board to hold a new
hearing and “to consider only permissible
factors.” (Id. at 13).
neither party has challenged the Court's statutory
jurisdiction over the § 2241 Application, the Court is
mindful of it independent obligation to determine whether
subject matter jurisdiction exists. See Ruhrgas AG v.
Marathon Oil Co., 526 U.S. 574, 583 (1999).
to 28 U.S.C. § 2241(a), a writ of habeas corpus may be
granted by “the district courts and any circuit judge
within their respective jurisdictions.” In most cases,
there is “only one proper respondent to a given
prisoner's habeas petition, ” and the proper
respondent generally is “the warden of facility where
the prisoner is being held.” Rumsfeld v.
Padilla, 542 U.S. 426, 434-35 (2004). However, there are
exceptions to the general rule that the
“custodian” is the warden of the institution
where the petitioner is confined, and that the petition must
be brought in the district of confinement.
Braden v. 30th Judicial Circuit Court of Kentucky,
410 U.S. 484 (1973), the Supreme Court recognized that
“[t]he writ of habeas corpus does not act upon the
prisoner who seeks relief, but upon the person who holds him
in what is alleged to be unlawful custody.”
Id. at 494-95. In that case, the petitioner was
serving a sentence in an Alabama prison pursuant to an
Alabama conviction but he was challenging a detainer lodged
against him in Kentucky state court. Id. 486-87. The
Supreme Court held that the Kentucky court, rather than the
Alabama warden, was the proper respondent. Id. at
494-95. The Supreme Court observed that “the State
holding the prisoner in immediate confinement acts as agent
for the demanding State, and the custodian State is
presumably indifferent to the resolution of the
prisoner's attack on the detainer.” Id. at
498-99. The Court's conclusion was supported in part by
traditional venue considerations because “[i]t is in
Kentucky, where all of the material events took place, that
the records and witnesses pertinent to petitioner's claim
are likely to be found.” Id. at 493-94.
Wildermuth is a Colorado state prisoner who is currently
incarcerated in a Washington state prison pursuant to an
interstate compact. Colorado, not Washington, has custody and
control over Mr. Wildermuth and the execution of his
sentence. The federal district court in Washington has no
jurisdiction over Colorado parole officials or the execution
of Applicant's Colorado-imposed sentence. Stated
otherwise, the Respondent superintendent of the Washington
prison in which Mr. Wildermuth is confined does not
“exercise[ ] legal control with respect to the
challenged ‘custody.'” Padilla, 542
U.S. at 438. Under these circumstances, the State of
Colorado, acting through the Colorado Parole Board officials,
is Mr. Wildermuth's “true custodian.” See
Holder v. Curley, 749 F.Supp.2d 644, 647 (E.D.Mich.
2010) (concluding that the habeas petitioner's
“'true custodian' is the Pennsylvania
Department of Corrections. The only connection between
Petitioner's Pennsylvania state-court conviction and
Michigan is that Petitioner is housed in Michigan pursuant to
a contractual agreement.”); Williams v.
Miller-Strout, No. 05-CV-864-ID, 2006 WL 3147667 at *1
and n.2 (M.D. Ala. 2006) (noting that the petitioner, who was
currently incarcerated in a Washintgon state prison pursuant
to an interstate compact between the State of Washington and
the State of Alabama, was under the custody and control of
the Alabama Department of Corrections, and that the Alabama
Board of Pardons and Parole “directly controls whether
Petitioner remains in custody”). The Court thus finds
that jurisdiction over the § 2241 Application is proper
in the District of Colorado.
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). A
challenge to the denial of parole is properly brought under
28 U.S.C. § 2241. Henderson v. Scott, 260 F.3d
1213, 1214 (10th Cir. 2001). Habeas corpus relief is
warranted only if Mr. Wildermuth “is in custody in
violation of the Constitution or laws or treaties of the
United States.” 28 U.S.C. § 2241(c)(3).
Court must construe Mr. Wildermuth's filings liberally
because he is not represented by an attorney. Trackwell
v. United States, 472 F.3d 1242, 1243 (10th Cir. 2007)
(citations omitted); see also Haines v. Kerner, 404
U.S. 519, 520B21 (1972). However, a pro se
litigant's ''conclusory allegations without
supporting factual averments are insufficient to state a
claim on which relief can be based.'' Hall v.
Bellmon, 935 F.2d 1106, 1110 (10th Cir.1991). An
applicant's pro se status does not entitle him to an
application of different rules. See Montoya v. Chao,
296 F.3d 952, 957 (10th Cir. 2002).