Edmonds v. Dauffenbach

          ORDER ON APPLICATION FOR WRIT OF HABEAS CORPUS

          R. BROOKE JACKSON UNITED STATES DISTRICT JUDGE

         This 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.

         I. BACKGROUND

         Applicant 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.

         Applicant 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.

         II. 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). 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).

         The 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.

         III. DISCUSSION

         The 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 Applicant's claims.

         A. Liberty Interest/Parole

         The 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.

         The 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).

         An 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 ...