Wildermuth v. Key et al

Filing 23

ORDER denying 7 Application for Writ of Habeas Corpus filed by Dean Wildermuth by Judge R. Brooke Jackson on 10/24/17. (jdyne, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
District Judge R. Brooke Jackson
Civil Action No. 16-cv-01966-RBJ
DEAN WILDERMUTH, a/k/a Shane McKnight,
Applicant,
v.
JAMES KEY, Superintendent,
JOE MORALES, Colorado Board of Parole,
BRANDON SHAFFER, Colorado Board of Parole, and
DENISE BALAZIC, Colorado Board of Parole,
Respondents.

ORDER ON APPLICATION FOR A WRIT OF HABEAS CORPUS

Applicant, Dean Wildermuth, has filed an Application for a Writ of Habeas Corpus
Pursuant to 28 U.S.C. § 2241 (Docket No. 7) challenging a decision by the Colorado
Parole Board to deny him parole. Respondents have filed a Response to the Application
(Docket No. 21), and Applicant has filed a Reply. (ECF No. 22). For the reasons
discussed below, the Application is DENIED.
I. Background and Habeas Application
Mr. Wildermuth was convicted of first degree murder in 1975. (Docket No. 7 at 6).
He is serving a life sentence, with the possibility of parole. (Id. at 12, 15). Applicant has
appeared before the Colorado Parole Board several times, but has been denied parole
each time. See Wildermuth v. Furlong, 147 F.3d 1234, 1235 (10th Cir. 1998). (See also
Docket No. 7 at 20; 8/8/12 Notice of Colorado Parole Board Action). Most recently, Mr.

Wildermuth was denied parole on August 5, 2015. (Id. at 21; 8/5/15 Notice of Colorado
Parole Board Action). He is eligible for parole consideration again in 2020. (Id. at 19).
Mr. Wildermuth initiated this action on August 2, 2016. In the § 2241 Application,
he claims that the Colorado Parole Board’s August 5, 2015 decision to deny him parole
violated his federal due process rights. (Id. at 6, 11-12, 21). Applicant further claims
that the Parole Board’s decision was arbitrary and capricious and constituted an abuse of
discretion. (Id. at 8, 11). Mr. Wildermuth asserts that he was not given sufficient notice
of the reasons for denial; that the Board failed to consider any positive and extenuating
circumstances concerning his behavior in prison; and, that he was not informed about
what steps he should take to enhance his chances of being released at his next parole
review. (Id. at 7, 8). For relief, Mr. Wildermuth seeks a court order directing the
Colorado Parole Board to hold a new hearing and “to consider only permissible factors.”
(Id. at 13).
II. Jurisdiction
Although neither party has challenged the Court’s statutory jurisdiction over the
§ 2241 Application, the Court is mindful of it independent obligation to determine whether
subject matter jurisdiction exists. See Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574,
583 (1999).
Pursuant to 28 U.S.C. § 2241(a), a writ of habeas corpus may be granted by “the
district courts and any circuit judge within their respective jurisdictions.” In most cases,
there is “only one proper respondent to a given prisoner's habeas petition,” and the proper
respondent generally is “the warden of facility where the prisoner is being held.”
Rumsfeld v. Padilla, 542 U.S. 426, 434-35 (2004). However, there are exceptions to the
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general rule that the “custodian” is the warden of the institution where the petitioner is
confined, and that the petition must be brought in the district of confinement.
In Braden v. 30th Judicial Circuit Court of Kentucky, 410 U.S. 484 (1973), the
Supreme Court recognized that “[t]he writ of habeas corpus does not act upon the
prisoner who seeks relief, but upon the person who holds him in what is alleged to be
unlawful custody.” Id. at 494-95. In that case, the petitioner was serving a sentence in
an Alabama prison pursuant to an Alabama conviction but he was challenging a detainer
lodged against him in Kentucky state court. Id. 486-87. The Supreme Court held that the
Kentucky court, rather than the Alabama warden, was the proper respondent. Id. at
494-95. The Supreme Court observed that “the State holding the prisoner in immediate
confinement acts as agent for the demanding State, and the custodian State is
presumably indifferent to the resolution of the prisoner's attack on the detainer.” Id. at
498-99. The Court's conclusion was supported in part by traditional venue
considerations because “[i]t is in Kentucky, where all of the material events took place,
that the records and witnesses pertinent to petitioner's claim are likely to be found.” Id. at
493-94.
Mr. Wildermuth is a Colorado state prisoner who is currently incarcerated in a
Washington state prison pursuant to an interstate compact. Colorado, not Washington,
has custody and control over Mr. Wildermuth and the execution of his sentence. The
federal district court in Washington has no jurisdiction over Colorado parole officials or the
execution of Applicant’s Colorado-imposed sentence. Stated otherwise, the
Respondent superintendent of the Washington prison in which Mr. Wildermuth is
confined does not “exercise[ ] legal control with respect to the challenged ‘custody.’”
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Padilla, 542 U.S. at 438. Under these circumstances, the State of Colorado, acting
through the Colorado Parole Board officials, is Mr. Wildermuth’s “true custodian.” See
Holder v. Curley, 749 F.Supp.2d 644, 647 (E.D.Mich. 2010) (concluding that the habeas
petitioner’s “’true custodian’ is the Pennsylvania Department of Corrections. The only
connection between Petitioner's Pennsylvania state-court conviction and Michigan is that
Petitioner is housed in Michigan pursuant to a contractual agreement.”); Williams v.
Miller-Strout, No. 05-CV-864-ID, 2006 WL 3147667 at *1 and n.2 (M.D. Ala. 2006) (noting
that the petitioner, who was currently incarcerated in a Washintgon state prison pursuant
to an interstate compact between the State of Washington and the State of Alabama, was
under the custody and control of the Alabama Department of Corrections, and that the
Alabama Board of Pardons and Parole “directly controls whether Petitioner remains in
custody”). The Court thus finds that jurisdiction over the § 2241 Application is proper in
the District of Colorado.
III. Legal Standards
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). A challenge to the denial of parole is properly brought under 28 U.S.C.
' 2241. Henderson v. Scott, 260 F.3d 1213, 1214 (10th Cir. 2001). Habeas corpus
relief is warranted only if Mr. Wildermuth “is in custody in violation of the Constitution or
laws or treaties of the United States.” 28 U.S.C. § 2241(c)(3).

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The Court must construe Mr. Wildermuth’s filings liberally because he is not
represented by an attorney. Trackwell v. United States, 472 F.3d 1242, 1243 (10th Cir.
2007) (citations omitted); see also Haines v. Kerner, 404 U.S. 519, 520B21 (1972).
However, a pro se litigant's Aconclusory allegations without supporting factual averments
are insufficient to state a claim on which relief can be based.@ Hall v. Bellmon, 935 F.2d
1106, 1110 (10th Cir.1991). An applicant=s pro se status does not entitle him to an
application of different rules. See Montoya v. Chao, 296 F.3d 952, 957 (10th Cir. 2002).
IV. Analysis
Mr. Wildermuth challenges the Colorado Parole Board=s August 2015 decision to
deny him parole as a deprivation of his federal due process rights. 1
The Due Process Clause of the Fourteenth Amendment of the United States
Constitution prohibits the state deprivation of life, liberty, or property without due process
of law. See Templeman v. Gunter, 16 F.3d 367, 369 (10th Cir. 1994). Mr. Wildermuth
was not deprived of life or property when he was denied release on parole. His claim
therefore must implicate a constitutionally-protected liberty interest. See Kentucky Dep't
of Corrections v. Thompson, 490 U.S. 454, 460 (1989).
Generally, a liberty interest may arise from either the United States Constitution or
state law. See Fristoe v. Thompson, 144 F.3d 627, 630 (10th Cir.1998); Boutwell v.
Keating, 399 F.3d 1203, 1213 (10th Cir. 2005) (recognizing that a state statute may
Acreate a liberty interest when the statute's language and structure sufficiently limits the
1 In the Preliminary Response, Respondents conceded that the instant action was timely filed within one
year after the August 5, 2015 denial of parole. See 28 U.S.C. § 2244(d). (Docket No. 11 at 2). Applicant
is not required to exhaust state court remedies prior to challenging the denial of parole in a federal habeas
corpus action. See Wildermuth, 147 F.3d at 1237 n.1 Cir.1992). Therefore, the Court considers the
merits of Applicant’s due process claim.

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discretion of a parole board.@). 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, 562 U.S. 216, 220 (2011) (per curiam); Greenholtz v. Inmates of Neb. Penal and
Corr. Complex, 442 U.S. 1, 7 (1979). Furthermore, a review of the applicable Colorado
parole scheme demonstrates that Mr. Wildermuth does not have a legitimate claim of
entitlement to parole under Colorado law.
Inmates in Colorado generally are subject to a discretionary parole system unless
they were convicted of offenses committed between July 1, 1979, and June 30, 1985.
See Thiret v. Kautzky, 792 P.2d 801, 805 (Colo. 1990). Mr. Wildermuth was convicted of
murder in 1975. As such, he is subject to Colorado=s discretionary parole scheme. Id.;
see also COLO. REV. STAT. (“C.R.S.”) § 17-2-201(5)(a) (2017) (“as to any person
sentenced for conviction of a felony committed prior to July 1, 1979, . . .the board has the
sole power to grant or refuse to grant parole. . . “); Martinez v. Furlong, 893 P.2d 130, 131
(Colo.1995) (en banc).
Mr. Wildermuth has no entitlement to parole under a discretionary parole
scheme. Greenholtz, 442 U.S. at 7; see also Straley v. Utah Bd. of Pardons, 582 F.3d
1208, 1214 (10th Cir. 2009). Nonetheless the Tenth Circuit has recognized that federal
habeas relief may be warranted where the decision to deny parole constituted an abuse
of the parole board's discretion such that it “resulted in an abridgement of the petitioner's
constitutional rights.” Wildermuth, 147 F.3d at 1236. See also Schuemann v. Colorado
State Bd. of Adult Parole, 624 F.2d 172, 173 (10th Cir.1980) (stating that a court “may
review [a] decision of the parole board to determine if it was arbitrary, capricious or an
abuse of discretion.”).
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The Court first considers the state procedures applicable to parole proceedings.
Colorado law does not create any limits on the procedures to be used by the parole board
when it considers a state prisoner’s parole application. State law provides only that a
parole interview shall be conducted by one or more parole board members as follows:
[W]henever an inmate initially applies for parole, the board shall conduct an
interview with the inmate. At such interview at least one member of the
board shall be present. Any final action on an application shall not be
required to be made in the presence of the inmate or parolee, and any such
action shall require the concurrence of at least two members of the board.
When the two members do not concur, a third member shall review the
record and, if deemed necessary, interview the applicant and cast the
deciding vote. Any subsequent application for parole shall be considered by
the board in accordance with the provisions of paragraph (a) of subsection
(4) of this section.
...
When a recommendation has been made before the board for revocation or
modification of a parole, the final disposition of such application shall be
reduced to writing. The parolee shall be advised by the board of the final
decision at the conclusion of the hearing or within a period not to exceed
five working days following said hearing; however, a parolee may waive the
five-day notice requirement. A copy of the final order of the board shall be
delivered to the parolee within ten working days after the completion of the
hearing.
' 17B2B201(9)(a)(I) and (b), C.R.S. (2017). The statutory procedure was followed in Mr.
Wildermuth’s case and he does not contend otherwise. Therefore, the question
remaining is whether the denial of parole was arbitrary, capricious or an abuse of
discretion.
The Colorado Parole Board may not release an offender on parole unless “there is
a strong and reasonable probability that the person will not thereafter violate the law and
that release of such person . . . is compatible with the welfare of society.” § 17-2-201(4),
C.R.S. The parole board's decision regarding whether to release an inmate is Asubtle
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and depends on an amalgam of elements, some of which are factual but many of which
are purely subjective appraisals by the Board members based upon their experience with
the difficult and sensitive task of evaluating the advisability of parole release.@ Greenholtz,
442 U.S. at 9-10. On federal habeas review, the Court=s Ainquiry is only whether there is
a rational basis in the record for [the parole board's] conclusions embodied in its
statement of reasons.@ Mulberry v. Neal, 96 F.Supp.2d 1149, 1151 (D. Colo. 2000). ASo
long as there was sufficient evidence before the Parole Board to support its decision, its
actions are not an abuse of discretion.@ Id. Federal courts may not reweigh evidence,
rule on credibility matters, or substitute their judgment for the judgment exercised by a
parole board. Fiumara v. O'Brien, 889 F.2d 254, 257 (10th Cir. 1989).
Mr. Wildermuth was denied parole based on the circumstances and violent nature
of his offense. (Docket No. 21-1, Declaration of Jennifer Wagoner, Colorado Parole
Board Administrator, at ¶7, and attached Notice of Colorado Parole Board Action dated
8/5/15). Although the parole board's explanation in the notice of action is terse, there is
no question that the nature of the crime committed is a proper factor for consideration by
the parole board. See Schuemann, 624 F.2d at 174; see also Childs v. Clements, No.
12-cv-01401-CMA, 2013 WL 389087 at *5 (D. Colo. Jan. 31, 2013) (concluding that
decision to deny parole based on the nature of the offense was sufficient and not an
abuse of discretion). Moreover, “[i]t would be discordant to require unduly specific and
detailed reasons from a Board vested with a subjective, predictive, and experimental
function.” Schuemann, 624 F.2d at 174. The Court thus finds that there was a rational
basis for the Parole Board’s decision to deny parole. Consequently, Mr. Wildermuth fails

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to demonstrate the parole board's decision was arbitrary, capricious or an abuse of
discretion.
Mr. Wildermuth argues in his Reply that the Parole Board failed to consider “the
totality of the circumstances” in denying parole. Applicant emphasizes that he was 20
years old when he committed the murder; that he has served over forty years in prison;
and, during that time he had only one penal code violation (in 1987). (Docket No. 22 at
2). Mr. Wildermuth further states that while in prison, he has completed higher level
education courses, work programs, and attended Alcoholics Anonymous and anger
management classes. (Id. at 3; see also Docket No. 21-1 at 5-12).
The Colorado Parole Guidelines provide that “[i]n considering offenders for parole,
the state board of parole shall consider the totality of the circumstances,” which include,
but are not limited to, the offender’s completion of treatment or other programs in prison;
the offender’s institutional conduct; and, the offender’s work toward or completion of
education classes. Section 17-22.5-404(a), C.R.S. (2017). Even so, “[t]he
determination of how to monitor an offender's progress and what, if any, weight the Parole
Board chooses to place on the evidence before it are matters solely for the Parole Board's
consideration and discretion.” White v. People, 866 P.2d 1371, 1373 (Colo. 1994). Mr.
Wildermuth presented his evidence of rehabilitation and education to the Parole Board,
but the Board decided to deny parole based on the fact that Mr. Wildermuth committed a
murder, which is a class one felony and crime of violence. 2 The denial of parole was not
arbitrary or an abuse of discretion.

2 See §18-3-102(3) and § 18-1.3-406(2)(a)(II)(B), C.R.S. (2017).

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And, finally, to the extent Mr. Wildermuth argues that the Parole Board must review
his application sooner than the five year review indicated on the Notice of Colorado
Parole Board Action, Colorado law provides otherwise. Pursuant to § 17-2-201(4)(a),
C.R.S., the Parole Board need only reconsider granting parole once every five years to a
person convicted of a class I or class 2 felony that constitutes a crime of violence.
Accordingly, Mr. Wildermuth is not entitled to parole consideration again until 2020.
V. Orders
For the reasons discussed above, it is
ORDERED that Applicant Dean Wildermuth’s Application For a Writ of Habeas
Corpus Pursuant to 28 U.S.C. § 2241 (Docket No. 7) is DENIED and this action is
DISMISSED on the merits. It is
FURTHER ORDERED that no certificate of appealability will issue because Mr.
Wildermuth has not made a substantial showing that jurists of reason would find it
debatable whether the jurisdictional and procedural rulings are correct and whether the
Application states a valid claim of the denial of a constitutional right. It is
FURTHER ORDERED that pursuant to 28 U.S.C. § 1915(a)(3), the Court certifies
that any appeal from this order would not be taken in good faith and therefore in forma
pauperis status will be denied for the purpose of appeal. See Coppedge v. United
States, 369 U.S. 438 (1962). If Mr. Wildermuth files a notice of appeal he also must 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 October 24, 2017, at Denver, Colorado.
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BY THE COURT:

R. BROOKE JACKSON
United States District Judge

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