United States District Court, D. Colorado
ORDER DENYING MOTION FOR STAY
Y. WANG UNITED STATES MAGISTRATE JUDGE
matter is before the Court on the “Motion for Stay and
Abeyance Until Resolution of State Court Proceedings to be
Held on December 3, 2019” (Doc. # 29), filed by
Applicant, Dustin McDaniel, on December 9, 2019. Respondent
filed a Response to Motion to Stay (Doc. # 31) on December
13, 2019. For the reasons discussed below, the Motion for
Stay is DENIED.
amended Application for a Writ of Habeas Corpus Pursuant to
28 U.S.C. § 2241 (Doc. # 16), Mr. McDaniel challenges a
June 2019 decision by the Colorado Parole Board to defer
parole. Applicant asserts that his federal due process rights
were violated in conjunction with the state parole
proceeding. He maintains that he was denied parole in
retaliation for his constitutionally-protected activity and
for his failure to complete a mandatory sex offender
treatment program to which the CDOC has denied him access.
November 15, 2019, Respondent filed a Response to the §
2241 Application. (Doc. # 24). Respondent argues that because
Mr. McDaniel filed a concurrent state court action
challenging the June 2019 parole decision, he must exhaust
any state court remedy before proceeding in this action.
(Doc. # 24 at 4-6).
state court documents attached to the Response indicate that
in July 2019, Mr. McDaniel filed a Complaint pursuant to
Colo. R. Civ. P. 106 in El Paso District Court No. 2019CV218.
(Doc. # 24-1). In the state action, Applicant makes
allegations similar to those raised in his federal §
2241 application. The Colorado Parole Board filed a motion to
dismiss the Rule 106 action (Doc. # 24-2), which was denied
by the state district court on the following grounds:
The plaintiff has alleged - with some supporting
documentation in the form of a purported letter from Walter
C. Johnson - that certain irregularities may have taken place
at the plaintiff's parole hearing wherein he may have
been intentionally denied participation in his parole
While a parole hearing may, in fact, be a privilege in which
the outcome is embedded with a significant degree of
discretion, the allegations made in this case - if
established as true - would be evidence that the parole
hearing officer failed to exercise her statutory duties.
Finally, although there is a regulation which establishes
treatment qualifications which determine whether an inmate is
eligible to participate in treatment (AR 700-191-107(B)),
there has been no explanation in the motion which explains
why the plaintiff's priority has not yet either made him
eligible for treatment or moved him from the wait list to
actual treatment. In making this statement, the court is not
suggesting that the Respondent has not fairly and honestly
prioritized him for treatment - it is just that there has
been no information provided to how the calculation was
determined. While his right to treatment is limited, he does
have a liberty interest to ensure this prioritization process
set forth in the CDOC's administrative regulations is
followed and to be present at his own parole hearing.
(Doc. # 24-4 at 1-2). The state court set the matter for an
evidentiary hearing. (Id. at 2). Counsel thereafter
entered an appearance on behalf of Mr. McDaniel and the
hearing was reset to December 3, 2019. (Doc. # 24-5; # 24-7).
December 9, 2019, Applicant filed a Motion for Stay and
Abeyance in which he asks the Court to stay this action
pending the El Paso County District Court's resolution of
his Colo. R. Civ. P. 106 proceeding. (Doc. # 29). Respondent
maintains that a stay is not warranted because the state
district court issued an order on December 13, 2019 resolving
the issues raised in the Colo. Civ. P. 106 Complaint.
(Id.; see also Doc. # 13-1, “Order
Re: Evidentiary Hearing on December 3, 2019”).
December 13, 2019 Order, the El Paso County District Court
denied the Colo. Civ. P. 106 Complaint, concluding that Mr.
McDaniel was not “improperly denied his right to a
parole hearing, improperly denied parole with sex therapy in
the community, or denied parole for improper retributive
reasons.” (Doc. # 13-1 at 6).
general matter, a Colorado state prisoner need not pursue
state court remedies before seeking federal habeas relief in
conjunction with a parole decision, see Wildermuth v.
Furlong, 147 F.3d 1234, 1235 n.1 (10th Cir. 1998),
because a discretionary decision to deny parole is generally
not subject to review by the Colorado state courts. See
White v. People, 866 P.2d 1371, 1373 (Colo.1994).
However, where a state prisoner has filed a parallel state
court action raising claims similar to those asserted in a
federal habeas application, the doctrine of comity may
require the federal court to defer action until the state
courts “have had an opportunity to pass upon the
matter.” Rose v. Lundy, 455 U.S. 509,
518 (1982) (internal quotation marks and citation omitted).
See also Montez v. McKinna, 208 F.3d 862, 869 (10th
Cir. 2000) (discussing “comity and deference to state
adjudicatory procedures” in the context of §
Court finds that a stay of this action is not warranted
because the El Paso County District Court has resolved the
issues raised in the December 3 hearing relating to the
Colorado Parole Board's 2019 decision to deny Applicant
parole. Therefore, it is
that the “Motion for Stay and Abeyance Until Resolution
of State Court Proceedings to be Held on December 3,
2019” (Doc. # ...