from the District Court, Logan County District Court Case No.
18CV32, Honorable Charles M. Hobbs, Judge
Graham, pro se, Sterling, Colorado
Attorneys for Defendants-Appellees: Philip J. Weiser,
Attorney General, Chris W. Alber, Senior Assistant Attorney
General, Denver, Colorado
In this habeas corpus appeal, we consider the parole boards
order confining Jimmie Graham for more than ninety days as a
result of his parole violations. We conclude that the parole
board exceeded its statutory authority and that the district
court subsequently erred in denying Grahams habeas petition.
We thus reverse the district courts order. Because Graham
has been confined well beyond the ninety days authorized by
the version of the parole revocation statute in effect at the
time of Grahams parole revocation, we remand to the district
court with directions to grant the writ of habeas corpus,
make the writ permanent, and order the Executive Director of
the Colorado Department of Corrections and the Warden of
Sterling Correctional Facility (collectively,
"DOC") to immediately release Graham to parole.
I. Facts and Procedural History
In February 2018, Grahams parole officer filed a complaint
alleging that Graham had violated three conditions of his
parole: changing his residence without permission; failing to
report to the parole office as directed; and committing a new
felony— escape. The allegation related to the
commission of a new felony was dismissed after the escape
case was dismissed. Graham then pled not guilty to the two
remaining allegations. Following a hearing, the parole board
found that Graham had violated his parole as alleged in the
two outstanding counts of the complaint.
In June 2018, the board revoked Grahams parole and ordered
him confined to the DOC for the remainder of his parole
period. In so doing, the board noted that Graham had been on
parole nine times, had absconded from parole seven times, and
had been revoked from parole eight times. This poor parole
history, concluded the board, justified its decision. Graham
appealed, but his appeal was denied.
Graham then filed a petition for habeas corpus in the
district court, alleging that the applicable version of the
parole revocation statute, section 17-2-103(11)(b), C.R.S.
(2017), did not permit the parole board to order him confined
for the remainder of his parole period. According to Graham,
his case fell within the ambit of subparagraph (III.5), which
authorizes confinement for a maximum of ninety days following
revocation of parole. § 17-2-103(11)(b)(III.5). The district
court denied Grahams petition and concluded that the parole
board had acted within its discretion.
Graham timely appealed to this court. See Colo.
Const. art. VI, § 2 (outlining the appellate jurisdiction of
the supreme court); see also § 13-4-102(1)(e),
C.R.S. (2019) (excluding habeas corpus appeals from the
jurisdiction of the court of appeals). We now reverse.
We agree with Graham that the parole board exceeded its
statutory authority in ordering him confined for the
remainder of his parole period. See Martin v.
People, 27 P.3d 846, 858 (Colo. 2001) (noting that under
section 17-2-103(11)(b), the parole board is authorized to
return a parolee to confinement as a penalty for violating
parole but that the period of confinement is limited by
statute). Subsection (11) of section 17-2-103 sets out the
boards authority to address parole violations. Paragraph (a)
provides that when the board finds a violation, it may revoke
parole (as provided in paragraph (b)), continue parole, or
modify parole. § 17-2-103(11)(a). When, as here, the board
decides to revoke parole, paragraph (b) restricts the
duration of confinement it may order:
(I) If the board determines that the parolee has violated
parole through commission of a crime, the board may revoke
parole and order the parolee confined for up to ...