Wood v. Milyard et al

Filing 68

ORDER Vacating Grant of Conditional Habeas Corpus Relief. ORDERED that the clerk of the court is directed to return the state court record in People v. Wood, Adams County District Court Case No. 86CR123, to the Adams County District Court. ORDERED the conditional grant to Mr. Wood of habeas corpus relief in the order of August 23, 2013, is vacated. ORDERED that the clerk of the court is directed to close this case by Judge Wiley Y. Daniel on 01/29/14. (jhawk, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Senior Judge Wiley Y. Daniel
Civil Action No. 08-cv-00247-WYD
PATRICK WOOD,
Applicant,
v.
KEVIN MILYARD, Warden, Sterling Correctional Facility, and
THE ATTORNEY GENERAL OF THE STATE OF COLORADO,
Respondents.

ORDER VACATING GRANT OF CONDITIONAL HABEAS CORPUS RELIEF

On August 23, 2013, I entered an order (ECF No. 59) pursuant to the mandate of
the United States Court of Appeals for the Tenth Circuit (ECF No. 58) filed on July 30,
2013. The Tenth Circuit mandate on the opinion entered on July 8, 2013 (ECF No. 56),
published at 721 F.3d 1190 (10th Cir. 2013), remanded this case to me with instructions
that I grant the Application for Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254
(ECF No. 1) with the condition that I vacate Applicant, Patrick Wood’s, conviction for
first-degree felony murder “if but only if the state courts have not eliminated either one
of his murder convictions within a reasonable time.” ECF No. 56 at 18 (emphasis
added), (721 F.3d at 1198). See Hilton v. Braunskill, 481 U.S. 700, 775 (1987) (federal
court may grant conditional writ to allow a State “an opportunity to correct the
constitutional violation”); Hooks v. Workman, 689 F.3d 1148, 1208 (10th Cir. 2012)
(using “reasonable time” formulation for a conditionally granted habeas writ). Mr. Wood
was convicted in the Adams County District Court of first-degree felony murder and

second-degree murder, and several lesser charges.
In the August 23, 2013, order also directed Respondents to provide me with a
written status report every sixty days as to what, if any, state court proceedings were
underway to eliminate either one of Mr. Wood’s murder convictions within in a
reasonable time. On October 25, 2013, Respondents filed a status report (ECF No. 61)
informing me that they had contacted the Adams County District Attorney’s Office to
initiate proceedings in the Adams County District Court to vacate Mr. Wood’s seconddegree murder conviction.
On November 15, 2013, Mr. Wood filed though counsel a motion (ECF No. 63) to
grant his habeas corpus application and vacate his conviction for first-degree felony
murder, complaining that the state failed to act within a reasonable time from July 8,
2013, when the Tenth Circuit issued its mandate, until October 25,2013, when it filed a
response two days late to my August 23, 2013, order. However, counsel for Mr. Wood
fails to provide any authority as to what constitutes a reasonable time. On November
15, 2013, Respondents filed a response (ECF No. 64) opposing the November 15
motion (ECF No. 63) and noting inter alia that Mr. Woods does not allege any prejudice,
is not eligible for parole until December 2025, and the elimination of his second-degree
murder conviction will not affect his parole eligibility date.
On November 21, 2013, Mr. Wood filed through counsel a motion (ECF No. 65)
to supplement and update his November 15 motion. Also on November 21, Mr. Wood
filed through counsel an unopposed motion (ECF No. 66) to return the state court
record in People v. Wood, Adams County District Court Case No. 86CR123, to the state
court. On December 11, 2013, Respondents filed a second status report (ECF No. 67)

informing me that on December 9, 2013, the Adams County District Court issued an
order, a copy of which is attached to the December 11 status report, vacating Mr.
Wood’s convictions for second-degree murder and aggravated robbery.
As previously stated, the Tenth Circuit mandate instructed me to grant the
Application for Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254 with the condition
that I vacate Mr. Wood’s conviction for first-degree felony murder “if but only if the state
courts have not eliminated either one of his murder convictions within a reasonable
time.” The state court vacated Mr. Wood’s second-degree murder conviction on
December 9, 2013, within five months from the July 30, 2013, Tenth Circuit mandate
and the August 23, 2013, order for a sixty-day, status report. I find that the Adams
County District Court, by vacating Mr. Wood’s conviction for second-degree murder on
December 9, substantially has complied with the July 30 mandate to eliminate one of
his convictions within a reasonable period of time. To the extent the August 23 order
granted Mr. Woods conditional habeas corpus relief, the order will be vacated.
Accordingly, it is
ORDERED that the motion (ECF No. 65) that Applicant, Patrick Wood, filed on
November 21, 2013, to supplement and update the motion (ECF No. 63) he filed on
November 15, 2013, seeking to grant his habeas corpus application and vacate his
conviction for first-degree felony murder is GRANTED. It is
FURTHER ORDERED that the motion (ECF No. 63) Mr. Wood filed on
November 15, 2013, to grant his habeas corpus application and vacate his conviction
for first-degree felony murder is DENIED. It is
FURTHER ORDERED that the unopposed motion (ECF No. 66) that Mr. Wood

filed on November 21, 2013, to return the state court record in People v. Wood, Adams
County District Court Case No. 86CR123, to the state court, is GRANTED. It is
FURTHER ORDERED that the clerk of the court is directed to return the state
court record in People v. Wood, Adams County District Court Case No. 86CR123, to the
Adams County District Court. It is
FURTHER ORDERED the conditional grant to Mr. Wood of habeas corpus relief
in the order of August 23, 2013, is vacated. It is
FURTHER ORDERED that the clerk of the court is directed to close this case.
Dated: January 29, 2014
BY THE COURT:

s/ Wiley Y. Daniel
Wiley Y. Daniel
United States Senior District Judge