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Wildermuth v. Key

United States District Court, D. Colorado

October 24, 2017

DEAN WILDERMUTH, a/k/a Shane McKnight, Applicant,
v.
JAMES KEY, Superintendent, JOE MORALES, Colorado Board of Parole, BRANDON SHAFFER, Colorado Board of Parole, and DENISE BALAZIC, Colorado Board of Parole, Respondents.

          ORDER ON APPLICATION FOR A WRIT OF HABEAS CORPUS

          R. BROOKE JACKSON UNITED STATES DISTRICT JUDGE.

         Applicant, 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.

         I. Background and Habeas Application

         Mr. 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).

         Mr. 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).

         II. Jurisdiction

         Although 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).

         Pursuant 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.

         In 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.

         Mr. 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.

         III. Legal Standards

         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). 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).

         The 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).

         IV. ...


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