Kailey v. Price
ORDER denying 5 Application for Writ of Habeas Corpus filed by Randy Kailey. This case is DISMISSED WITH PREJUDICE. The respondents are AWARDED their costs, to be taxed by the clerk of the court. By Judge Robert E. Blackburn on 6/21/12. (mjgsl, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Robert E. Blackburn
Civil Action No. 11-cv-03418-REB-BNB
WILLIAM PRICE, and
THE ATTORNEY GENERAL OF THE STATE OF COLORADO,
ORDER DENYING APPLICATION FOR WRIT OF HABEAS CORPUS
This matter is before me on the Application for a Writ of Habeas Corpus
Pursuant To 28 U.S.C. § 2241 [#5]1 filed March 12, 2012. The respondents filed a
response [#18]. I deny the application and dismiss this case.
I have jurisdiction over this case under 28 U.S.C. § 1331 (federal question) and
28 U.S.C. § 2241 (habeas corpus).
II. STANDARD OF REVIEW
The applicant, Randy Kailey, brings his application under 28 U.S.C. § 2241(c)(3).
In order to be entitled to habeas corpus relief, Mr. Kailey must establish that “[h]e is in
custody in violation of the Constitution or laws or treaties of the United States.” 28
“[#5]” is an example of the convention I use to identify the docket number assigned to a
specific paper by the court’s case management and electronic case filing system (CM/ECF). I use this
convention throughout this order.
U.S.C. § 2241(c)(3). For the reasons stated below, I deny the application.
In considering Mr. Kailey’s filings, I am mindful that he is proceeding pro se and,
therefore, I must construe his pleadings liberally and hold them to a “less stringent
standard” than pleadings drafted by lawyers. Haines v. Kerner, 404 U.S. 519, 520
(1972) (per curiam). Such liberal construction is intended merely to overlook technical
formatting errors, poor writing style, and other defects in the party’s use of legal
terminology, citation, and theories. See Hall v. Bellmon, 935 F.2d 1106, 1110 (10th
Cir. 1991). The court, however, cannot act as a pro se litigant’s legal advocate, and a
pro se plaintiff retains the burden to allege sufficient facts to state a viable claim.
Furthermore, pro se status does not relieve a party of the duty to comply with the
various rules and procedures governing litigants and counsel or the requirements of the
substantive law, and in these regards, the court must apply the same standard to
counsel licensed to practice law and to a pro se party. See McNeil v. United States,
508 U.S. 106, 113 (1993); Ogden v. San Juan County, 32 F.3d 452, 455 (10th Cir.
III. FACTUAL BACKGROUND
The applicant, Randy Kailey, is in the custody of the Colorado Department of
Corrections (DOC). On January 10, 1986, Mr. Kailey was sentenced to 16 years in
prison on each of two convictions for aggravated incest. The two sentences were
imposed consecutively, resulting in a total sentence of 32 years. The offenses on which
the two convictions are based were committed in October 1984. From the date of his
sentencing to the present, Mr. Kailey has been incarcerated in the DOC.
According to Mr. Kailey, if he were granted all of the earned time credits to which
he is entitled, he would be entitled to immediate release from the DOC. This is true, he
contends, because the total of the time he has served in the DOC, plus his presentence
confinement credits, plus his earned time credits would be equal to his 32 year
sentence. On this basis, he seeks a writ of habeas corpus requiring that he be released
from the DOC.
Mr. Kailey has been awarded 1,709 days of earned time credits, out of a possible
total award of 2,850 days of earned time credits. Response [#18], Exhibit A-2, ¶ 9. The
denial of earned time credits to Mr. Kailey “was due to Kailey’s own behavior; such as
non-participation in recommended programs, and Code of Penal Discipline convictions
for institutional behavior.” Id. According to Mr. Kailey, the denial of these earned time
credits was improper and an award of these denied credits to him would entitle him to
release from prison.
Under Colorado law, good time and earned time credits granted to a DOC inmate
do not count as service of the inmate’s sentence. Rather v. Suthers, 973 P.2d 1264,
1266 (Colo. 1999) (citing Jones v. Martinez, 799 P.2d 385, 388 (Colo. 1990)).
“(W)hen an inmate’s actual time served, presentence confinement credits, and good
time or earned time credits equal or exceed his sentence, the inmate is not entitled to
unconditional release. . . . “ Id. Rather, at that point in time, the inmate “may have
earned the right to parole, depending upon the applicable sentencing statute.” Id.
Many inmates serving a sentence for a crime committed between July 1, 1979, and July
1, 1985, are entitled to mandatory parole when the amount of time served plus the
inmate’s good time and earned time credits equal the sentence imposed. Rather v.
Suthers, 973 P.2d 1264, 1265 (Colo. 1999) (citing Thiret v. Kautzky, 792 P.2d 801,
805 (Colo. 1990)).
The offenses for which Mr. Kailey is incarcerated were committed in October
1984, within the mandatory parole time window specified in Rather, but Mr. Kailey is not
entitled to mandatory parole. This is so because Mr. Kailey is serving sentences for sex
offenses. Rather, 973 P.2d at 1267. Under §17-2-201(5)(a), C.R.S., the parole board
has the sole power to grant or refuse to grant parole as to “any person sentenced for
conviction of a sex offense, as defined in section 16-13-202(5), C.R.S. . . . .” For many
years, Mr. Kailey has been eligible for release on parole. Response [#18], Exhibit A-2, ¶
10. However, the parole board has not exercised its discretion to grant parole to Mr.
As one basis for his application, Mr. Kailey cites §17-22.5-302(3), C.R.S., which
(3) For each inmate sentenced for a crime committed on or after July 1,
1979, but before July 1, 1985, the department shall review the
performance record of the inmate and shall grant, consistent with the
provisions of this section, an earned time deduction from the sentence
imposed. Such review shall be conducted at least annually; except that, in
the case of an inmate who has one year or less of his sentence remaining
to be served, the review shall be conducted at least semiannually. The
earned time deduction authorized by this section shall vest upon being
granted and may not be withdrawn once it is granted.
This subsection requires both a review of Mr. Kailey’s performance record and an award
of earned time credits to Mr. Kailey to the extent he is entitled to such credits based on
that review. It is undisputed that some earned time credits have been awarded to Mr.
Mr. Kailey cites also §17-22.5-402, C.R.S., which became effective in 1990. This
statute provides that no inmate shall be discharged from the DOC “until he has
remained the full term for which he was sentenced . . . .” §17-22.5-402(1), C.R.S.
However, this statute provides also that “the full term for which an inmate is sentenced
shall be reduced by any . . . earned time granted pursuant to section 17-22.5-405,"
subject to exceptions not applicable here. §17-22.5-402(2), C.R.S.
On several occasions, including the cases discussed above, the Colorado
Supreme Court has interpreted the effect of these and other statutes on the
determination of a DOC inmate’s parole eligibility and entitlement to release from the
DOC. Even after §17-22.5-405, C.R.S. became effective in 1990, the Colorado
appellate courts continued to hold that earned time credits do not constitute service of
an inmate’s sentence and, therefore, such credits are not relevant to a determination of
the date on which a DOC inmate has served his sentence fully. Jones v. Martinez, 799
P.2d 385, 386 - 388 (Colo. 1990); Meyers v. Price, 842 P.2d 229, 232 (Colo. 1992).
This court is bound by the Colorado Supreme Court’s construction of Colorado
law. Fultz v. Embry, 158 F.3d 1101, 1103 (10th Cir. 1998). Applying the law as
determined by the Colorado Supreme Court, Mr. Kailey’s earned time credits are not
relevant to a determination of the date on which he is entitled to mandatory release from
the DOC. Even if Mr. Kailey was awarded the additional 1,154 days of earned time
credits to which he claims entitlement,2 such an award would not require that Mr. Kailey
be released from the DOC at an earlier date. An award of these additional earned time
credits would not constitute service of Mr. Kailey’s sentence.
Notably, the respondents estimate Mr. Kailey’s “statutory discharge date” to be
February 27, 2013. Response [#18], Exhibit A-2, ¶ 11. The term “statutory discharge
In a case filed by Mr. Kailey in 2011, Mr. Kailey asserted that he improperly had been denied
earned time credits. Kailey v. Ritter, Civil Action No. 11-cv-00143-LTB (D. Colo. June 23, 2011)
(dismissing as frivolous due process, double jeopardy, and disparate treatment claims concerning award
of earned time credits). This court dismissed Mr. Kailey's claims as frivolous. Id., Order of Dismissal [#14]
filed June 23, 2011. In Kailey v. Ritter, the court noted that earned time credits serve only to establish
parole eligibility and that Mr. Kailey is not entitled to mandatory parole.
date” is not defined in the respondents’ filings. The respondents’ calculation of Mr.
Kailey’s statutory discharge date includes consideration of (1) Mr. Kailey’s sentencing
date of January 10, 1986; (2) 14 days of presentence confinement granted to Mr.
Kailey; (3) the time Mr. Kailey has served in the DOC; (4) 1,709 days of earned time
credits previously granted to Mr. Kailey; and (5) an estimated 30 days of projected
additional earned time credits which may be awarded to Mr. Kailey in the future. Id.
Even though Colorado law does not mandate Mr. Kailey’s release on this date, the
Colorado State Board of Parole has the discretion to release Mr. Kailey on parole before
Mr. Kailey has served his prison sentence fully. Rather v. Suthers, 973 P.2d 1264,
1267 (Colo. 1999).
V. CONCLUSION & ORDERS
Under Colorado law, Mr. Kailey would not be entitled to release from the DOC
even if he were credited with all of the earned time credits to which he claims
entitlement. Earned time credits, no matter how many Mr. Kailey may have, do not
constitute service of Mr. Kailey’s sentence and, therefore, do not determine the date on
which Mr. Kailey has served his sentence fully. Mr. Kailey has not shown that he is in
custody in violation of the Constitution or laws or treaties of the United States. Thus, he
is not now entitled to habeas corpus relief under 28 U.S.C. § 2241.
THEREFORE, IT IS ORDERED as follows:
1. That the Application for a Writ of Habeas Corpus Pursuant To 28 U.S.C. §
2241 [#5] filed March 12, 2012, is DENIED;
2. That this case is DISMISSED WITH PREJUDICE;
3. That under FED. R. CIV. P. 58, judgment SHALL ENTER in favor of the
respondents William Price, and the Attorney General of the State of Colorado against
the applicant Randy Kailey; and
4. That the respondents are AWARDED their costs, to be taxed by the clerk of
the court pursuant to Fed. R. Civ. P. 54(d)(1) and D.C.COLO.LCivR 54.1.
Dated June 21, 2012, at Denver, Colorado.
BY THE COURT:
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