O'Connor v. Trani
ORDER on Application for Writ of Habeas Corpus 1 . Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2241 1 is DENIED and this case is DISMISSED WITH PREJUDICE. There is no basis on which to issue a certificate of appealability pursuant to 28 U.S.C. § 2253(c). By Magistrate Judge Michael J. Watanabe on 10/24/2014. (emill)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Case No. 14-cv-01026-MJW
MICHAEL R. O’CONNOR,
TRAVIS TRANI, Warden Colorado State Penitentiary,
ORDER ON APPLICATION FOR WRIT OF HABEAS CORPUS
MICHAEL J. WATANABE
United States Magistrate Judge
This case is before this Court pursuant to the Order of Reference entered August
11, 2014, and the parties’ unanimous consent to disposition of this action by a United
States Magistrate Judge.
Applicant, Michael R. O’Connor, has filed pro se an Application for a Writ of
Habeas Corpus Pursuant to 28 U.S.C. § 2241 (Docket No. 1) (“the Application”). On
May 22, 2014, Respondent was ordered to show cause why the Application should not
be granted. Respondent has filed a Response to Order to Show Cause (“the
Response”) (Docket No. 19) and Mr. O’Connor has filed Applicant’s Response to
Respondent’s Response to Show Cause (“the Reply”) (Docket No. 21). After reviewing
the pertinent portions of the record in this case including the Application, the Response,
and the Reply, the Court concludes that the Application should be denied.
Mr. O’Connor is a prisoner in the custody of the Colorado Department of
Corrections (“DOC”). He is serving a sentence of thirty-six years in prison after being
convicted of second degree murder in Adams County, Colorado, District Court case
number 01CR2949. (See Docket No. 19-1 at 10.) Mr. O’Connor previously was
convicted of second degree assault by administration of a drug in Adams County,
Colorado, District Court case number 97CR1793. (See id. at 5.)1
Mr. O’Connor is challenging the DOC’s calculation of his parole eligibility date
(“PED”). The DOC has determined as a matter of Colorado state law that Mr. O’Connor
is not eligible for parole until he serves seventy-five percent of his current sentence in
case number 01CR2949 because his prior conviction in case number 97CR1793 was a
crime of violence. In order to determine whether the prior conviction for second degree
assault was a crime of violence the DOC considered the factual circumstances of that
offense as set forth in the presentence investigation report in case number 97CR1793.
(See Docket No. 1 at 10; Docket No. 19-1 at 2, ¶9.) Mr. O’Connor contends he should
be eligible for parole as a matter of state law after serving only fifty percent of his
current sentence because he was not convicted of a crime of violence in case number
97CR1793 and the DOC may not consider the factual circumstances of an offense as
reported in a presentence investigation report to determine if a prior conviction is a
crime of violence. Mr. O’Connor specifically claims in the Application that the DOC’s
improper calculation of his PED has resulted in a violation of his constitutional right to
Mr. O’Connor was convicted of attempted escape in a third case, Adams County, Colorado,
District Court case number 02CR299. (See Docket No. 19-1 at 9.) The conviction for attempted escape is
not relevant to the claim Mr. O’Connor raises in the Application.
due process. As relief Mr. O’Connor asks that the DOC be ordered to calculate his PED
at fifty percent of his sentence or that he be granted a hearing before his PED is set.
Mr. O’Connor previously challenged the DOC’s calculation of his PED in a state
court action in the Crowley County District Court and he has attached to the Application
a copy of the state court’s December 19, 2011 order granting a motion to dismiss that
action. (See Docket No. 1 at 19-21.) The state court reasoned as follows in concluding
Mr. O’Connor was not entitled to the relief he sought as a matter of law:
Plaintiff was convicted of second degree murder, and
previously of second degree assault. If the second
degree assault conviction meets the definition of a
crime of violence, then he must serve 75% of his
sentence on the conviction for second degree murder
before he becomes eligible for parole. C.R.S. 1722.5-403(2)(a). The question presented is how the
DOC should apply the tag of the crime of violence.
Plaintiff argues essentially that the statutory citation of
the mittimus controls. Under his interpretation, the
citation on the mittimus, C.R.S. 18-3-203(1)(e)
governs; since that particular section of second
degree assault is not defined as a crime of violence,
he does not meet the criteria of C.R.S. 17-22.5403(2)(a).
Defendants maintain that the facts of the case control.
A review of the presentence report from Plaintiff’s
second degree assault conviction shows that Plaintiff
struck the victim from behind with a club/wooden
stick. By the definition of C.R.S. 18-1.3-406, Plaintiff
possessed and used a deadly weapon. As such, his
second degree assault conviction constitutes a crime
of violence, and he does not meet the criteria of
There are two ways to meet the crime of violence
designation. One is by a conviction for a specifically
defined crime of violence (per se crime of violence).
The other is if the facts of the case justify such a
designation. Plaintiff’s case fits the second category.
See Busch v. Gunter, 870 P.2d 586, at 588 (Colo.
App. 1993) (“Thus we must examine the facts
underlying his conviction to determine if plaintiff’s
conviction falls within the definition of a crime of
Because Plaintiff is serving a sentence for second
degree murder and had a previous conviction for a
crime of violence the provisions of 17-22.5-403(2)
apply; Plaintiff is subject to the requirement that he
serve 75% of his murder sentence before he is
eligible for parole.
(Docket No. 1 at 19-21 (footnote omitted).) The record before the Court indicates the
Crowley County District Court’s order was affirmed on appeal. (See id. at 24.)
II. STANDARDS OF REVIEW
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. O’Connor “is in
custody in violation of the Constitution or laws or treaties of the United States.” 28
U.S.C. § 2241(c)(3). “[I]t is not the province of a federal habeas court to reexamine
state-court determinations on state-law questions.” Estelle v. McGuire, 502 U.S. 62,
The Court must construe Mr. O’Connor’s filings 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). However, the Court
should not be an advocate for a pro se litigant. See Hall, 935 F.2d at 1110.
The United States Constitution guarantees due process only when a person is to
be deprived of life, liberty, or property. See Templeman v. Gunter, 16 F.3d 367, 369
(10th Cir. 1994). Mr. O’Connor does not allege that he has been deprived of life or
property. Therefore, his due process claim depends upon the existence of a
constitutionally protected liberty interest.
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, if Mr. O’Connor has been
deprived of a constitutionally protected liberty interest as he contends, that liberty
interest must arise under Colorado state law.
“To be protected by procedural due process, an interest must be guaranteed by
state law when specified substantive predicates exist.” Elliott v. Martinez, 675 F.3d
1241, 1245 (10th Cir. 2012); see also Olim v. Wakinekona, 461 U.S. at 249 (“[A] State
creates a protected liberty interest by placing substantive limitations on official
discretion.”). A constitutionally protected liberty interest also may exist under state law
when state action inevitably affects the duration of a prison sentence. See Sandin, 515
U.S. at 484; Wilson v. Jones, 430 F.3d 1113, 1120-21 (10th Cir. 2005).
Construing his arguments liberally, Mr. O’Connor apparently contends he has a
constitutionally protected liberty interest under Colorado law because the DOC has
misinterpreted and misapplied the relevant statutes as a substantive matter and, as a
result of this misinterpretation and misapplication of state law, the DOC has extended
the duration of his sentence by increasing the time he must serve before he is eligible
for parole. The Court is not persuaded.
First, Mr. O’Connor fails to demonstrate he has a substantive right under
Colorado state law to be eligible for parole after serving only fifty percent of his
sentence. As noted above, the Crowley County District Court rejected Mr. O’Connor’s
claim that the DOC has misinterpreted and misapplied the relevant Colorado statutes
and the Court does not review state-court determinations on state-law questions. See
Estelle, 502 U.S. at 67-68.
Second, even assuming the Court could consider the merits of Mr. O’Connor’s
state law argument and concluded he is correct, he also fails to demonstrate the
duration of his sentence inevitably will be reduced if his PED is advanced. “For
defendants serving sentences in Colorado for crimes committed on or after July 1,
1985, the [Parole] Board has unlimited discretion to grant or deny parole.” Mulberry v.
Neal, 96 F. Supp.2d 1149, 1150 (D. Colo. 2000); see also Thiret v. Kautzky, 729 P.2d
801, 805 (Colo. 1990); Colo. Rev. Stat. § 17-22.5-303(6). Mr. O’Connor is serving a
sentence for a crime committed on December 15, 2001. (See Docket No. 19-1 at 10.)
As a result, any decision regarding his release on parole once he becomes eligible for
parole will be within the parole board’s discretion. The Court is not persuaded that the
possibility of discretionary release on parole after serving fifty percent of a sentence
rather than after serving seventy-five percent of a sentence gives rise to a
constitutionally protected liberty interest. See Straley v. Utah Bd. of Pardons, 582 F.3d
1208, 1214 (10th Cir. 2009) (reaffirming that “a federal liberty interest in parole only
arises when a prisoner has a legitimate claim of entitlement to it” and that “the mere
existence of a purely discretionary parole authority creates no entitlement and,
therefore, no concomitant federal due process interest”).
For these reasons, the Court finds that Mr. O’Connor fails to demonstrate he has
been deprived of a constitutionally protected liberty interest. As a result, the due
process claim lacks merit.
In summary, the Court finds that Mr. O’Connor is not entitled to relief and the
Application will be denied. WHEREFORE, for the foregoing reasons, it is hereby
ORDERED that the Application for a Writ of Habeas Corpus Pursuant to 28
U.S.C. § 2241 (Docket No. 1) is DENIED and this case is DISMISSED WITH
PREJUDICE. It is further
ORDERED that there is no basis on which to issue a certificate of appealability
pursuant to 28 U.S.C. § 2253(c).
DATED October 24, 2014.
BY THE COURT:
S/ Michael J. Watanabe
MICHAEL J. WATANABE
United States Magistrate Judge
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