Betts v. Trani

Filing 5

ORDER dismissing this action, and denying leave to proceed in forma pauperis on appeal, by Judge Lewis T. Babcock on 2/18/15. No certificate of appealability will issue. (dkals, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 15-cv-00229-GPG
TERRY BETTS,
Applicant,
v.
TRAVIS TRAN[I], Warden,
Respondent.

ORDER OF DISMISSAL

Applicant, Terry Betts, is a prisoner in the custody of the Colorado
Department of Corrections (“CDOC”) at the Colorado State Penitentiary in Canón City,
Colorado. Mr. Betts has filed, pro se, an Application for a Writ of Habeas Corpus
Pursuant to 28 U.S.C. § 2241 (ECF No. 1). He has been granted leave to proceed in
forma pauperis pursuant to 28 U.S.C. § 1915.
The Court reviews the Application liberally because Mr. Betts is not represented
by an attorney. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972); 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. For the reasons stated below, the
action will be dismissed.
Mr. Betts alleges in the Application that the CDOC is withholding earned time
credits because he has not entered and completed a community therapeutic program;
however, the CDOC refuses to place him in a community therapeutic program.
According to Applicant, he is entitled to receive “over one year’s worth of earned time,”

pursuant to COLO. REV. STAT. (C.R.S.) §§ 17-22.5-302 and 17-22.5-405. Mr. Betts
asserts that he has a constitutionally-protected liberty interest in the award of earned
time credits under Colorado law. He is mistaken.
Under Colorado statute, “earned time . . . may be deducted from the inmate's
sentence upon a demonstration . . . that he has made substantial and consistent
progress in [a number of categories].” § 17.22.5-302(1); see also § 17-22.5-405(1)
(stating that “earned time . . . may be deducted from the inmate’s sentence. . .”). For
inmates sentenced for crimes committed on or after July 1, 1985, the CDOC has
discretion to “withhold” or “withdraw” any “earned time deduction[s].” § 17.22.5-302(4),
C.R.S. The CDOC’s Official Time Computation Report for Mr. Betts, attached to the
Application, shows that Applicant was sentenced for crimes committed in 2005 and
2009. (ECF No. 1, at 8). Accordingly, under state statute, the award of earned-time
credits to Mr. Betts is within the discretion of prison officials and, therefore, he does not
have a constitutionally protected liberty interest in earned-time credits. See Fogle v.
Pierson, 435 F.3d 1252, 1262 (10th Cir. 2006).
Further, in Colorado, earned-time credits do not count as service of an inmate's
sentence, see Rather v. Suthers, 973 P.2d 1264, 1266 (Colo.1999), but instead function
only to establish parole eligibility, see Jones v. Martinez, 799 P.2d 385, 387-88 and n.5
(Colo.1990) (collecting cases). Cf. Thiret v. Kautzky, 792 P.2d 801, 805-07 (Colo.1990)
(recognizing an exception for inmates sentenced to a crime committed after July 1,
1979, but before July 1, 1985, who are normally entitled to mandatory, not discretionary,
parole (except for sex offenders)). Therefore, even if Mr. Betts was awarded all of the
earned time credits to which he claims an entitlement, he would not be assured
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immediate or speedier release. See Kailey v. Price, No. 12-1276, 497 F. App’x 835,
836-37 (10th Cir. Sept. 27, 2012) (unpublished) (citing Boutwell v. Keating, 399 F.3d
1203, 1209 (10th Cir. 2005) (“[H]abeas corpus is the only avenue for a challenge to the
fact or duration of confinement, at least when the remedy requested would result in the
prisoner's immediate or speedier release from that confinement.”) (emphasis in original
omitted); see also Frazier v. Jackson, No. 09-1429, 385 F. Appx. 808, 810-11 (10th Cir.
2010) (unpublished) (“An application for habeas relief may be granted only when the
remedy requested would result in the prisoner's immediate or speedier release from
confinement.”).
Because Mr. Betts cannot demonstrate that he has a liberty interest in the
withheld earned time credits that is protected by the Due Process Clause, or that he is
entitled to speedier release from prison,1 the Application is without merit. Accordingly,
it is
ORDERED that the Application for a Writ of Habeas Corpus Pursuant to 28
U.S.C. § 2241 (ECF No. 1), filed by Applicant, Terry Betts, on February 2, 2015, is
DENIED and this action is DISMISSED. It is
FURTHER ORDERED that no certificate of appealability will issue because
jurists of reason would not debate the correctness of the procedural ruling and Mr. Betts

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Applicant’s claims that the CDOC has violated his Fourteenth Amendment equal protection rights
and the Eighth Amendment falter on the same ground. Moreover, the failure to award earned time credits
does not implicate either the Equal Protection Clause or the Eighth Amendment. See Fogle, 435 F.3d at
1261 (equal protection claim fails where act complained of is within discretion of prison officials because it
is not plausible that “there are no relevant differences between [the petitioner] and other inmates that
reasonably might account for their different treatment.’”) (quoting Templeman v. Gunter, 16 F.3d 367, 371
(10th Cir. 1994)); see also Fistell v. Neet, No. 03-1285, 125 F. App’x 219, 225 (10th Cir. 2005) (affirming
the district court’s dismissal of Eighth Amendment claim and Fourteenth Amendment equal protection
claim challenging the denial of earned time credits as legally frivolous).

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has not made a substantial showing of the denial of a constitutional right. It is
FURTHER ORDERED that leave to proceed in forma pauperis on appeal is
denied for the purpose of appeal. The Court certifies pursuant to 28 U.S.C.
§ 1915(a)(3) that any appeal from this order would not be taken in good faith. See
Coppedge v. United States, 369 U.S. 438 (1962). If Mr. Betts files a notice of appeal he
must also pay the full $505 appellate filing fee or file a motion to proceed in forma
pauperis in the United States Court of Appeals for the Tenth Circuit within thirty days in
accordance with Fed. R. App. P. 24.
DATED February 18, 2015, at Denver, Colorado.
BY THE COURT:

s/Lewis T. Babcock
LEWIS T. BABCOCK, Senior Judge
United States District Court

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