United States District Court, D. Colorado
ORDER ON APPLICATION FOR WRIT OF HABEAS
BROOKE JACKSON UNITED STATES DISTRICT JUDGE
matter comes before the Court on the pro se
Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C.
§ 2241, ECF No. 1, filed April 4, 2019, by Applicant
John Edmonds. On July 8, 2019, Respondent was ordered to show
cause why the Application should not be granted. Respondent
filed a Response to Order to Show Cause, ECF No. 13, on
August 1, 2019. Applicant failed to reply to the Response
within the time allowed. After reviewing the pertinent
portions of the record in this case including the Application
and the Response, the Court concludes that the Application
should be denied.
is a prisoner in the custody of the Colorado Department of
Corrections at the Fremont Correctional Facility in
Cañon City, Colorado. Applicant was convicted of two
counts of sex assault on a child from a person in a position
of trust and was sentenced to ten years to life on one count
and to twelve years to life on the other count. ECF No. 13 at
1-2. In the instant Application, Applicant is challenging the
results of his January 7, 2019 Colorado State Parole Board
review, in which the Board deferred his request for parole
until January 2020 due to the “Severity/Circumstances
of offense” and because Applicant had recently started
sex offender treatment. ECF No. 13 at 2.
asserts one claim in the § 2241 Application. He contends
that at the January 7, 2019 parole hearing the board member
denied his parole solely on the fact that he must
“complete” mandatory sex offender treatment,
which is arbitrary, lacking in a rational basis, and a factor
outside the scope of the applicable statute. He further
contends that “[w]hile this mandatory language makes
participation in a treatment program an absolute prerequisite
for release on parole, the mere mention of
‘completion' as a factor to deny parole has not
only an irrational basis and arbitrariness, but it is outside
the scope of the law, thus exceeding the limits set-forth in
[Colo. Rev. Stat.] § 18-1.3-1006(1)(a).” ECF No. 1
at 2. Applicant asks that this Court issue a writ conditioned
on a new parole review hearing, in which the Board is limited
to considering Applicant's “progression” in
treatment and not a “completion” factor.
Id. at 4.
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 Applicant “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 Applicant'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 act as an advocate for
a pro se litigant. See Hall, 935 F.2d at
1110. Construing the Application liberally, the Court finds
Applicant is claiming that the denial of release on parole
violates his constitutional right to due process.
instant action was timely filed within one year after the
January 7, 2019 denial of parole. In addition, Applicant is
not required to exhaust state remedies prior to challenging
the denial of parole in this habeas corpus action. See
Wildermuth v. Furlong, 147 F.3d 1234, 1235 n.1 (10th
Cir. 1998). Therefore, the Court will consider the merits of
United States Constitution guarantees due process only when a
person is deprived of life, liberty, or property. See
Templeman v. Gunter, 16 F.3d 367, 369 (10th Cir. 1994).
Applicant was not deprived of life or property when he was
denied release on parole in January 2019. Therefore, he was
not entitled to any procedural protections in connection with
the denial of parole unless he was deprived of a
constitutionally protected liberty interest.
existence of a constitutionally protected liberty interest
depends upon the nature of the interest asserted. See
Sandin v. Conner, 515 U.S. 472, 480-84 (1995). A
prisoner is not entitled to any procedural protections in the
absence of a grievous loss. See Morrissey v. Brewer,
408 U.S. 471, 481 (1972). Generally, a liberty interest may
arise from either the United States Constitution itself or
from state or federal law. See Fristoe v. Thompson,
144 F.3d 627, 630 (10th Cir. 1998). However, it is clear the
Constitution itself does not create a protected liberty
interest in a prisoner's release prior to the expiration
of a valid sentence. See Greenholtz v. Inmates of the
Neb. Penal and Corr. Complex, 442 U.S. 1, 7 (1979).
examination of the parole scheme applicable to Applicant
demonstrates that Applicant also does not have a
constitutionally protected liberty interest that arises under
Colorado state law. “For defendants serving sentences
in Colorado for crimes committed on or after July 1, 1985,
the [Parole] Board has unlimited discretion to grant or deny
parole.” Mulberry v. Neal, 96 F.Supp.2d 1149,
1150 (D. Colo. 2000); see also Thiret v. Kautzky,
729 P.2d 801, 805 (Colo. 1990); Colo. Rev. Stat.'
17-22.5-303(6). Pursuant to the Colorado Department of
Corrections website, Applicant committed the crimes in 2006.
See www.doc.state.co.us/oss/. Therefore, the parole
board's decision is discretionary under state law and
does not give rise to a constitutionally protected liberty
interest. See ...