Reeger v. Raemisch et al

Filing 15

ORDER dismissing this action, and denying leave to proceed in forma pauperis on appeal, by Judge Lewis T. Babcock on 12/7/15. No certificate of appealability will issue. (dkals, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Civil Action No. 15-cv-01644-GPG

BRADLEY REEGER,
Applicant,
v.
RICK RAEMISCH, Executive Director for Colorado Department of Corrections,
CYNTHIA COFFMAN, Attorney General for Colorado, and
MICHAEL MILLER, Warden for Crowley County Correctional Facility,
Respondents.

ORDER OF DISMISSAL

Applicant, Bradley Reeger, is a prisoner in the custody of the Colorado
Department of Corrections, currently incarcerated at the Crowley County Correctional
Facility in Olney Springs, Colorado. Applicant has filed pro se an Amended Application
for Writ of Habeas Corpus Pursuant to 28 U.S.C. ' 2241. (ECF No. 11). He has paid
the filing fee. (ECF No. 14).
Applicant was sentenced on January 17, 2002 in Boulder County District Court
case number 01CR201. He complains that Respondents are violating his constitutional
rights because his release on parole is conditioned on his participation in a sex offender
treatment program and he has been denied a transfer to a prison facility where the
treatment program is offered. As relief, Applicant asks that the Court order his
immediate release.

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The Court must construe Applicant=s filings liberally because he 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 act as
an advocate for a pro se litigant. See Hall, 935 F.2d at 1110. For the reasons stated
below, the Application will be denied and the action dismissed.
Judicial review of the execution of a sentence is governed by ' 2241.
Caravalho v. Pugh, 177 F.3d 1177, 1178 (10th Cir. 1999). A ' 2241 action must be
brought by an applicant who is in custody in violation of the Constitution or laws of the
United States. A[T]he traditional function of the writ is to secure release from illegal
custody.@ Preiser v. Rodriguez, 411 U.S. 475, 484 (1973). Applicant=s claim that he is
being denied an opportunity for parole because he is not being allowed to participate in
sex offender treatment, however, is not cognizable under ' 2241 for the following
reasons.
A[A] federal liberty interest in parole only arises when a prisoner has a legitimate
claim of entitlement to it,@ and Athe mere existence of a purely discretionary parole
authority creates no entitlement and, therefore, no concomitant federal due process
interest.@ Straley v. Utah Bd. of Pardons, 582 F.3d 1208, 1214 (10th Cir. 2009). AThere
is no right under the Federal Constitution to be conditionally released before the
expiration of a valid sentence, and the States are under no duty to offer parole to their
prisoners.@ See Swarthout v. Cooke, 562 U.S. 216, 220 (2011) (per curiam) (citation
omitted); see also Greenholtz v. Inmates of Nebraska Penal & Correctional Complex,
442 U.S. 1, 7 (1979) (An applicant has no inherent constitutional right to be conditionally
released before the expiration of a valid sentence).

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The Colorado Parole Board has unlimited discretion to grant or deny parole for
defendants serving sentences for crimes committed on or after July 1, 1985. See Thiret
v. Kautzky, 792 P.2d 801, 805 (Colo. 1990); Colo. Rev. Stat. ' 17-22.5-303(6).
As may be applicable to this case, the Colorado Parole Board has the following
powers and duties:
To meet as often as necessary every month to consider all
applications for parole. The board may parole any person who is
sentenced or committed to a correctional facility when such person has
served his or her minimum sentence, less time allowed for good behavior,
and there is a strong and reasonable probability that the person will not
thereafter violate the law and that release of such person from institutional
custody is compatible with the welfare of society. If the board refuses an
application for parole, the board shall reconsider the granting of parole to
such person within one year thereafter, or earlier if the board so chooses,
and shall continue to reconsider the granting of parole each year
thereafter until such person is granted parole or until such person is
discharged pursuant to law; except that, if the person applying for parole
was convicted of any class 3 sexual offense described in part 4 of article 3
of title 18, C.R.S., a habitual criminal offense as defined in section
18-1.3-801(2.5), C.R.S., or of any offense subject to the requirements of
section 18-1.3-904, C.R.S., the board need only reconsider granting
parole to such person once every three years, until the board grants such
person parole or until such person is discharged pursuant to law, or if the
person applying for parole was convicted of a class 1 or class 2 felony that
constitutes a crime of violence, as defined in section 18-1.3-406, C.R.S.,
the board need only reconsider granting parole to such person
once every five years, until the board grants such person parole or until
such person is discharged pursuant to law.
Colo. Rev. Stat. ' 17-2-201(4)(a).
The Colorado parole board also is directed in part, as applicable to this case, that
[o]n completion of the minimum period of incarceration specified in a sex
offender's indeterminate sentence, less any earned time credited to the
sex offender pursuant to section 17-22.5-405, C.R.S., the parole board
shall schedule a hearing to determine whether the sex offender may be
released on parole. In determining whether to release the sex offender on
parole, the parole board shall determine whether the sex offender has
successfully progressed in treatment and would not pose an undue threat
to the community if released under appropriate treatment and monitoring
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requirements and whether there is a strong and reasonable probability
that the person will not thereafter violate the law. The department shall
make recommendations to the parole board concerning whether the sex
offender should be released on parole and the level of treatment and
monitoring that should be imposed as a condition of parole. . . .
Colo. Rev. Stat. ' 18-1.3-1006(1)(a).
According to the DOC website, Applicant was sentenced on January 17, 2002, to
eight years to life in prison and became parole eligible on March 19, 2007. See
http://www.doc.state.co.us/oss. 1 Although not alleged in his application, the supporting
documents indicate that Applicant was at one time enrolled in the sex offender
treatment program, but he was released from the program because of the results of a
polygraph. (ECF No. 11 at 7). Applicant has been before the parole board at least two
times, but he asserts that he has been denied parole each time because he has not
completed a treatment program. (ECF No 11 at 6).
The Court, therefore, finds that Applicant has been provided with parole reviews
as may be required. However, he is not entitled to parole under Colorado law because
the granting of parole is discretionary. The parole board may deny Applicant parole
even if he does complete the sex offender treatment program. As a result, Applicant=s
claim is not cognizable pursuant to 28 U.S.C. ' 2241 because his claim, if granted,
would not necessarily result in a speedier release. See Wilkinson v. Dotson, 544 U.S.
74, 82 (2005) (When a prisoner=s claim does not necessarily result in a speedier
release, the claim does not lie at the Acore of habeas corpus.@) (quoting, Preiser, 411

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The Court may take judicial notice of the contents of the CDOC=s Offender Search
website. See Triplet v. Franklin, No. 06-6247, 365 F. App=x 86, 92 n.8 (10th Cir. Feb. 5, 2010)
(unpublished) (taking judicial notice of Oklahoma Department of Corrections= website); see also
N.M. ex rel. Richardson v. Bureau of Land Mgmt., 565 F.3d 683, 702 n. 22 (10th Cir. 2009)
(taking judicial notice of information on A[t]he websites of two federal agencies@).

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U.S. at 489)).
Based on the above findings, the Application will be denied. If Applicant wishes
to assert claims challenging the conditions of his confinement based on the
administration of the sex offender treatment program, he must do so in a separate
prisoner civil rights action filed pursuant to 42 U.S.C. § 1983. See Leamer v. Fauver,
288 F.3d 532 (3d Cir. 2002) (“[U]nless the claim would fall within the ‘core of habeas’
and require sooner release if resolved in the plaintiff’s favor, a prison confinement action
such as this is properly brought under § 1983”) (emphasis added)(citation omitted)).
The Court also certifies pursuant to 28 U.S.C. ' 1915(a)(3) that any appeal from
this Order is not taken in good faith, and, therefore, in forma pauperis status is denied
for the purpose of appeal. See Coppedge v. United States, 369 U.S. 438 (1962). If
Applicant 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 Tenth Circuit within thirty days in
accordance with Fed. R. App. P. 24. Accordingly, it is
ORDERED that the Application is denied and the action dismissed. It is
FURTHER ORDERED that no certificate of appealability will issue because
Applicant has not made a substantial showing of the denial of a constitutional right in a
federal habeas action. It is
FURTHER ORDERED that leave to proceed in forma pauperis on appeal is
denied.

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DATED December 7, 2015, at Denver, Colorado.
BY THE COURT:
_ s/Lewis T. Babcock ________________
LEWIS T. BABCOCK, Senior Judge
United States District Court

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