Waynewood v. Colorado Department of Corrections

Filing 26

ORDER granting 5 Amended Application for Writ of Habeas Corpus. By Judge Christine M. Arguello on 05/07/2014. (athom, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Christine M. Arguello
Civil Action No. 13-cv-02561-CMA
DE’ON WAYNEWOOD,
Applicant,
v.
COLORADO DEPARTMENT OF CORRECTIONS – ADULT PAROLE,
Respondent.

ORDER ON APPLICATION FOR WRIT OF HABEAS CORPUS

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.

I. BACKGROUND
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 After his probation was revoked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).
In Martin, 27 P.3d at 863, [the Colorado Supreme Court]
held that the legislature created two systems of parole for
felonious offenders convicted of crimes occurring between
1993 and 1996. The legislature provided that most felonious
offenders receive a sentence to incarceration plus an
additional period of mandatory parole. Id. Sex offenders,
however, receive a sentence to incarceration with the parole
board having the exclusive authority to grant parole within
that sentence. Norton, 63 P.3d at 347. Persons convicted
of offenses involving unlawful sexual behavior whose crimes
were committed on or after July 1, 1996, but before July 1,
2002, are also subject to the discretionary parole provisions.
§ 17-2-201(5)(a.5), C.R.S. (2005); People v. Cooper, 27
P.3d 348, 356 (Colo. 2001).
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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:

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Fourteen years [sic] sentence on case no. 99CR1918, less
three hundred seventeen days presentence confinement
credit, leaves thirteen years one month and thirteen days
to serve as of the sentencing date of October 31, 2000,
resulting in a completion date estimated to be December 14,
2013. This date is extended by the null periods . . . for a
total extension of 4 years 1 month and 6 days, producing
a completion date of January 19, 2018. Next, the date is
reduced by granted earned time in the amount of 3 years
4 months 14 days, and 1 month projected earned time
(assumed will be earned for the last 3 months of the
sentence), to result in the currently estimated sentence
discharge date of August 5, 2014.
(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.)
II. STANDARDS OF REVIEW
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 (10th Cir. 1997). Habeas corpus relief is
warranted only if Mr. Waynewood “is in custody in violation of the Constitution or laws or
treaties of the United States.” 28 U.S.C. § 2241(c)(3).
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 (10th Cir. 1991).

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However, the Court should not be an advocate for a pro se litigant. See Hall, 935 F.2d
at 1110.
III. DISCUSSION
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 (10th Cir. 1994).
Mr. Waynewood does not allege that he has been deprived of life or property as a
result of the DOC’s failure to credit his sentence with the null time served on parole.
Therefore, his due process claim depends upon the existence of a constitutionally
protected liberty interest in having the time served on parole credited against his
sentence.
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.

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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 § 1722.5-403 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:
(5) For any offender who is incarcerated for an offense
committed prior to July 1, 1993, upon application for parole,
the state board of parole, working in conjunction with the
department and using the guidelines established pursuant to
section 17-22.5-404, shall determine whether or not to grant
parole and, if granted, the length of the period of parole. The
state board of parole may set the length of the period of
parole for any time period up to the date of final discharge as
determined in accordance with section 17-22.5-402. . . .
(6) For persons who are granted parole pursuant to
subsection (5) of this section, the division of adult parole
shall provide parole supervision and assistance in securing
employment, housing, and such other services as may effect
the successful reintegration of such offender into the
community while recognizing the need for public safety. . . .
Upon a determination that the conditions of parole have
been violated in a parole revocation proceeding, the state
board of parole shall continue the parole in effect, modify
the conditions of parole if circumstances then shown to exist
require such modifications, which circumstances shall be set
forth in writing, or revoke the parole and order the return of
the offender to a place of confinement designated by the
executive director for any period of time up to the period
remaining on such person’s sentence until the discharge
date as determined by section 17-22.5-402 or one year,
whichever is longer. In computing the period of
reincarceration for an offender other than an offender
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sentenced for a nonviolent felony offense, as defined in
section 17-22.5-405(5), the time between the offender’s
release on parole and return to custody in Colorado for
revocation of such parole shall not be considered to be
part of the term of the sentence. . . .
(7)(a) For any offender who is incarcerated for an offense
committed on or after July 1, 1993, upon application for
parole, the state board of parole, working in conjunction
with the department and using the guidelines established
pursuant to section 17-22.5-404, shall determine whether
or not to grant parole. The state board of parole, if it
determines that placing an offender on parole is appropriate,
shall set the length of the period of parole at the mandatory
period of parole established in section 18-1.3-401(1)(a)(V)
or 18-1.3-401.5(2)(a), C.R.S., except as otherwise provided
for specified offenses in section 17-2-201(5)(a), (5)(a.5),
and (5)(a.7). . . .
...
(8)(a) For persons who are granted parole pursuant to
paragraph (a) of subsection (7) of this section, the division of
adult parole shall provide parole supervision and assistance
in securing employment, housing, and such other services
as may affect the successful reintegration of such offender
into the community while recognizing the need for public
safety. . . . Upon a determination that the conditions of
parole have been violated in a parole revocation proceeding,
the state board of parole shall continue the parole in effect,
modify the conditions of parole if circumstances then shown
to exist require such modifications, which circumstances
shall be set forth in writing, or revoke the parole and order
the return of the offender to a place of confinement
designated by the executive director for any period of time
up to the period remaining on such person's mandatory
period of parole established in section 18-1.3-401(1)(a)(V)
or 18-1.3-401.5(2)(a), C.R.S. Any offender who has been
reincarcerated due to a parole revocation pursuant to this
paragraph (a) shall be eligible for parole at any time during
such reincarceration. . . .
Colo. Rev. Stat. § 17-22.5-403.
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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:
In computing the period of reincarceration for an offender
other than an offender sentenced for a nonviolent felony
offense, as defined in section 17-22.5-405(5), the time
between the offender’s release on parole and return to
custody in Colorado for revocation of such parole shall
not be considered to be part of the term of the sentence.
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 § 17-22.5403(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 § 17-22.5403(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
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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 § 1722.5-403(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.

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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).
IV. CONCLUSION
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).
DATED: May

07

, 2014
BY THE COURT:

CHRISTINE M. ARGUELLO
United States District Judge

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