CHRISTINE M. ARGUELLO, District Judge.
This matter is before the Court on the amended Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2241 (Doc. # 5) ("the Amended Application") filed pro se by Applicant, De'on Waynewood. Mr. Waynewood contends that his continuing custody violates state law and his constitutional rights because he has completed his sentence. On January 2, 2014, Respondent was ordered to show cause why the Amended Application should not be granted. Respondent has filed a Response to Order to Show Cause ("the Response") (Doc. # 24) and Mr. Waynewood has filed a Response to Respondent's Response to Order to Show Cause ("the Reply") (Doc. # 25). After reviewing the pertinent portions of the record in this case including the Amended Application, the Response, and the Reply, the Court concludes that the Amended Application should be granted.
Mr. Waynewood is in custody pursuant to his conviction and sentence in Arapahoe County, Colorado, District Court case number 99CR1918. Mr. Waynewood agreed to plead guilty to two counts of sexual assault on a child and he originally was sentenced to probation. (See Doc. # 24-1 at 5.) After his probation was revoked Mr. Waynewood was resentenced to fourteen years in the custody of the Colorado Department of Corrections (DOC) on each count and five years of mandatory parole. (See id.) The prison sentences were ordered to be served concurrently and Mr. Waynewood was credited with 317 days of presentence confinement credit. (See id.) On March 7, 2002, the trial court issued an amended mittimus to reflect that Mr. Waynewood was subject to discretionary parole and not a term of mandatory parole in addition to his prison sentences. (See Doc. # 24-1 at 6.) This change was prompted by the Colorado Supreme Court's decisions in Martin v. People, 27 P.3d 846 (Colo. 2001), and People v. Cooper, 27 P.3d 348 (Colo. 2001).
People v. Rockwell, 125 P.3d 410, 415 (Colo. 2005) (footnote omitted). On April 8, 2013, the DOC received another amended mittimus that reflects a change in the date of Mr. Waynewood's offenses from August 6, 1995, to between August 6, 1995, and October 31, 1998. (See Doc. # 24-1 at 7.)
Mr. Waynewood has been released on parole five times and his parole has been revoked four times as follows: on April 18, 2008, his parole was revoked for a period of 120 days (see id. at 11); on January 24, 2011, his parole was revoked for 100 days (see id. at 14); on November 21, 2011, his parole was revoked for 180 days (see id. at 17); and on January 11, 2013, his parole again was revoked for 180 days (see id. at 20). Mr. Waynewood most recently was released on parole on June 25, 2013, and he remains in custody on parole at this time. In computing Mr. Waynewood's sentence the DOC has determined that the time he has spent on parole is "null time" that may not be credited against his fourteen-year prison term. The parties agree that, not including the time Mr. Waynewood has spent on parole since June 25, 2013, he has been on parole for a total of four years, one month, and six days.
Mr. Waynewood contends in the Amended Application that he has completed his sentence because the time he has spent in prison and on parole, together with his presentence confinement and earned time credits, exceeds the fourteen-year prison term he was sentenced to serve. Respondent calculates Mr. Waynewood's current discharge date as follows:
(Doc. # 24 at 6, ¶19.) Mr. Waynewood explains in the Reply that "[i]t is the extension of the sentence by 4 years, 1 month and 6 days as `null time' under the incorrect statute application that is the matter before this court." (Doc. # 25 at 5.)
The fundamental purpose of 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 (10
The Court must construe Mr. Waynewood'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 (10
The Court construes the Amended Application liberally as asserting a constitutional due process claim premised on a misapplication of the relevant Colorado statute governing the computation of Mr. Waynewood's sentence. 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 (10
The Court must examine the nature of the interest asserted to determine whether a constitutionally protected liberty interest exists. 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 state law. See Fristoe v. Thompson, 144 F.3d 627, 630 (10th Cir. 1998). However, it is clear that the Constitution itself does not create a protected liberty interest in a prisoner's release prior to the expiration of a valid sentence. See Swarthout v. Cooke, 131 S.Ct. 859, 862 (2011) (per curiam); Greenholtz v. Inmates of the Neb. Penal and Corr. Complex, 442 U.S. 1, 7 (1979). Therefore, the Court looks to Colorado law to determine whether a constitutionally protected liberty interest exists.
According to the parties the pertinent state law the Court must consider is § 17-22.5-403 of the Colorado Revised Statutes. Four particular subsections of that statute are relevant to the Court's analysis and the relevant portions of those subsections provide as follows:
Colo. Rev. Stat. § 17-22.5-403.
According to Respondent, Colorado law does not create a protected liberty interest because § 17-22.5-403(6) specifically prohibits the DOC from awarding Mr. Waynewood credit against his sentence for the null time spent on parole. In particular, Respondent points to the following language in that section:
Colo. Rev. Stat. § 17-22.5-403(6). Mr. Waynewood counters that this section does not apply to him because the first sentence of § 17-22.5-403(6) limits its application to "persons who are granted parole pursuant to subsection (5) of this section." Mr. Waynewood contends that he has not been granted parole pursuant to § 17-22.5-403(5) because that section applies only to "any offender who is incarcerated for an offense committed prior to July 1, 1993." As noted above, Mr. Waynewood is serving a sentence for an offense committed between August 6, 1995, and October 31, 1998. (See Doc. # 24-1 at 7.)
According to Mr. Waynewood, he was granted parole pursuant to § 17-22.5-403(7)(a), which applies to "any offender who is incarcerated for an offense committed on or after July 1, 1993." He further maintains that, because he was granted parole pursuant to § 17-22.5-403(7)(a), the revocation of his parole and reincarceration is governed by § 17-22.5-403(8)(a) rather than § 17-22.5-403(6). Furthermore, unlike § 17-2.5-403(6), there is no provision in § 17-22.5-403(8)(a) that prohibits consideration of the time spent on parole in computing the period of reincarceration for an offender whose parole has been revoked. As a result, Mr. Waynewood contends that he is entitled to credit against his sentence for the time spent on parole.
Based on the record before the Court, the Court cannot accept the argument Respondent raises in the Response, which is that § 17-22.5-403(6) prohibits the DOC from awarding Mr. Waynewood credit against his sentence for the null time spent on parole. Respondent does not explain how a statutory provision that expressly applies to offenders incarcerated for crimes committed prior to July 1, 1993, is applicable to Mr. Waynewood when it is undisputed that he is incarcerated for a crime committed after that date. Respondent's unsupported assertion that Mr. Waynewood "is subject to the discretionary parole provisions" in § 17-22.5-403(5) & (6) because he "committed a sex offense after July 1, 1993, but before November 1, 1998" (Doc. # 24 at p.7) does not persuade the Court that Respondent's argument is correct. Even assuming § 17-22.5-403(5) & (6) generally apply to offenders subject to discretionary parole under Colorado law and that § 17-22.5-403(7)(a) & 8(a) generally apply to offenders subject to mandatory parole, the Court notes that § 17-22.5-403(7)(a) includes an exception "for specified offenses in section 17-2-201(5)(a), (5)(a.5), and (5)(a.7)" that are subject to discretionary parole like Mr. Waynewood. Therefore, it does not appear that Mr. Waynewood necessarily is subject to the parole provisions in § 17-22.5-403(5) & (6) as Respondent contends simply because his sentence is subject to discretionary parole and does not include a term of mandatory parole.
Respondent does not raise any other argument for why Mr. Waynewood should not receive credit against his sentence for the time spent on parole. However, Mr. Waynewood also fails to demonstrate he is entitled to the relief he requests in the Amended Application, which is that he has a right to receive credit against his sentence for the time spent on parole. It appears that Respondent has misapplied the relevant state statute in computing Mr. Waynewood's sentence but it is not clear what the correct outcome should be. Therefore, the Court will grant the Amended Application and Respondent will be ordered to recalculate Mr. Waynewood's sentence without reference to Colo. Rev. Stat. § 17-22.5-403(6).
In summary, the Court finds that Respondent fails to show good cause why Mr. Waynewood is not entitled to relief. Accordingly, it is
ORDERED that the amended Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2241 (Doc. # 5) is GRANTED.
IT IS FURTHER ORDERED that Respondent forthwith, but no later than ten business days after the date of this order, shall recalculate Mr. Waynewood's sentence without reference to Colo. Rev. Stat. § 17-22.5-403(6).
