Free Response - District Court of Colorado - Colorado

Case 1:01-cv-01315-REB-CBS

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 01-cv-01315-REB-CBS LEONARD BALDAUF, Plaintiff,
v.

JOHN HYATT, et. al. Defendants.

DEFENDANTS' RESPONSE TO PLAINTIFF'S BRIEF ON JURISDICTION

Defendants John Hyatt, Robert Fahey, Gary Neet, Gloria Masterson, Charles Tappe, Richard Martinez, Betty Fulton, David Roberts, Paul Carreras, William Zalman, Connie Davis, Patricia Romero, Ken Maestas, Joseph Garcia, Gary Carr, David Archuleta, Nard Claar, and Richard Harlan (hereinafter collectively "Defendants"), by and through their counsel, Andrew D. Ringel, Esq. and Gillian Dale, Esq. of Hall & Evans, L.L.C., pursuant to this Court's Order of August 10, 2005, hereby submit this Response to Plaintiff's Brief on Jurisdiction, as follows: I. PLAINTIFF'S DISCIPLINARY CONVICTION IS THE SUBJECT OF HIS COMPLAINT Plaintiff's Brief on Jurisdiction ("Plaintiff's Brief") first argues the subject of his Complaint is not a disciplinary proceeding, but a "general pattern of retaliation," and as a result the rule of Heck v. Humphrey, 512 U.S. 477 (1994), does not apply. [See Plaintiff's Brief, at p.1-2]. Plaintiff's argument is belied by his own Complaint, which specifically avers he was improperly charged with a disciplinary violation, the hearing on

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the disciplinary violation was a "charade" in which he did not have a full and fair opportunity to present his defense or call witnesses, and as a result of the conviction the probation imposed for a prior disciplinary conviction was wrongly revoked. [See

Complaint, at Section D, Claim I]. A finding the Defendants' actions were undertaken for retaliatory purposes and not for any legitimate penological purpose would therefore necessarily undermine the validity of the disciplinary conviction, and Plaintiff cannot avoid the implications of Heck and its progeny simply by framing his argument in terms of retaliation rather than a direct challenge to the disciplinary conviction. See Roberts v. Champion, 91 Fed. Appx. 108, 2004 U.S. App. LEXIS 2281 (10th Cir. 2004) (rejecting argument that Heck rule does not apply where a prisoner brings a claim of retaliation premised on a disciplinary conviction) (unpublished disposition attached hereto as Exh.A-10). II. PLAINTIFF'S LOSS OF GOOD TIME CREDITS IS IRRELEVANT TO THE JURISDICTIONAL ISSUE Plaintiff next argues that where parole decisions are discretionary, as in Colorado, suits filed for the purpose of moving up a parole eligibility date are not subject to habeas corpus and are therefore not governed by the Heck doctrine. However, contrary to Plaintiff's assumption, Defendants' Jurisdictional Brief does not argue that Heck applies because Plaintiff lost good time credits as the result of his disciplinary conviction, but instead that the rule applies because Plaintiff lost earned time credits. As explained in detail in the Jurisdictional Brief, in Colorado, good time affects an inmate's parole eligibility date, while earned time is deducted from an inmate's sentence and therefore directly affects the length of the sentence. [See Defendants' Jurisdictional 2

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Brief, at pp.7, 16-19, and Exh.A-1]. Therefore, Plaintiff's argument that the imposition of punishment affecting only a prisoner's parole eligibility date is not subject to Heck has absolutely no bearing on the issue before this Court. III. EARNED TIME DIRECTLY IMPACTS THE LENGTH OF A PRISONER'S SENTENCE AND THEREFORE IMPLICATES THE HECK DOCTRINE With respect to earned time, Plaintiff argues that even with the withholding of earned time due to his disciplinary conviction and term in administrative segregation, he still has time to accumulate all earned time available to him under Colorado law, and as a result the disciplinary conviction at issue will not affect his release date. However, the glaring flaw in Plaintiff's reasoning is his assumption that he will accumulate 25% of his sentence in earned time before his sentence expires. To the contrary, as explained in Defendants' Jurisdictional Brief, earned time is awarded only to prisoners who demonstrate substantial and consistent progress in categories such as work and training, group living, participation in counseling and group sessions, progress toward the goals and programs established by the Colorado Diagnostic Program, and not harassing or contacting any victim of the offender's criminal activity. [See Defendants' Jurisdictional Brief, at pp. 7-8, 17, and Exh.A-1]. In addition, earned time is not

available for specified periods after an inmate is convicted of a disciplinary violation or while an inmate is in administrative segregation. [See id. at p.9-10]. Plaintiff cannot be certain that he will satisfy the earned time criteria in any given month between now and his release date, and certainly cannot assume that he will accumulate the full 25% of his sentence even without the earned time he missed due to the disciplinary conviction at issue here. Plaintiff also cannot assume that he will not be convicted of any additional 3

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disciplinary violations and will not be placed in administrative segregation in the remaining period of his sentence. Under Plaintiff's theory, the application of Heck would be based solely upon speculation as to whether or not an inmate will or will not be able to accumulate enough earned time to eliminate the impact of the loss of earned time from any particular disciplinary conviction. The application of a jurisdictional rule created by the United States Supreme Court should not be based upon such speculation, and the federal courts should not be put in the position of having to determine whether earned time affects the length of a prisoner's sentence on a case-by-case basis. In addition, under Plaintiff's theory, the longer a prisoner's sentence is, the more likely it is he or she will be able to accumulate all legally available earned time in spite of a disciplinary conviction. This would create an anomalous situation where inmates convicted of the worst crimes or the greatest number of crimes will be given the most access to the federal courts for purposes of civil rights claims, and inmates with the shortest sentences will most often be barred from bringing such action without first successfully challenging a Code of Penal Discipline Conviction. Under this section, Plaintiff also relies on Meyers v. Price, 842 P.2d 229 (Colo. 1992), in which the Colorado Supreme Court held that earned time vests only for purposes of determining parole eligibility and not for purposes of determining a mandatory date for release from incarceration. Meyers relied on three prior Colorado Supreme Court decisions, each of which interpreted the version of the sentencing statutes in effect for crimes committed prior to 1985, and each of which dealt with an

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inmate who had been released on parole but later returned to prison after their parole was revoked. See id. at 230 (citing Bynum v. Kautzky, 784 P.2d 735 (Colo. 1989), Williamson v. Jordan, 797 P.2d 744 (Colo. 1990), Jones v. Martinez, 799 P.2d 385 (Colo. 1990)). While Meyers itself involved a crime committed after 1985, the question addressed by the Colorado Supreme Court there was whether the Department of Corrections was required to release the plaintiff from prison due to the accumulation of good time and earned time, and as a result it was not necessary to the decision to determine whether earned time alone can reduce an inmate's sentence so as to support a habeas corpus petition. To Defendants' knowledge, the Colorado Supreme Court has never been presented with the information submitted to this Court in Defendants' Jurisdictional Brief, clearly demonstrating that good time and earned time are distinguishable and intended by the legislature to be applied in different manners for purposes of sentencing. [See Defendants' Jurisdictional Brief, at pp. 7-8, 16-19, and Exh.A-1]. In addition, it does not appear the Colorado Supreme Court has ever considered the Department of Corrections' interpretation and application of the current sentencing scheme, which is laid out in detail in the Defendants' Jurisdictional Brief and attached exhibits, and which demonstrates that the state agency charged with the administration of the sentencing statutes in fact applies earned time credits to reduce the inmate's sentence, rather that to the parole eligibility date. [See id.] Provided with this

information and according proper deference to the interpretation of the Department of Corrections, see Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc.,

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467 U.S. 837, 843-45 (1994), Defendants believe the Colorado Supreme Court would recognize its own error and acknowledge that earned time does, in fact, reduce an inmate's sentence under the statutes applicable to Plaintiff's sentence.1 As a result, the Heck doctrine is applicable and Plaintiff cannot pursue his 42 U.S.C. §1983 claim without proof he has successfully challenged his disciplinary conviction. CONCLUSION In conclusion, for all of the foregoing reasons, Defendants John Hyatt, Robert Fahey, Gary Neet, Gloria Masterson, Charles Tappe, Richard Martinez, Betty Fulton, David Roberts, Paul Carreras, William Zalman, Connie Davis, Patricia Romero, Ken Maestas, Joseph Garcia, Gary Carr, David Archuleta, Nard Claar, and Richard Harlan respectfully request this Court dismiss the Plaintiff's claims against them, and for all other and further relief as this Court deems just and appropriate.

Although Defendants believe Meyer was wrongly decided and the Colorado Supreme Court would reverse its own error if presented with the record before this Court, if this Court is reluctant to rule on this issue without further input from the Colorado Supreme Court, Defendants respectfully request this Court certify the question to the Colorado Supreme Court pursuant to C.A.R. 21.1. 6

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Dated this 29th day of September, 2005 Respectfully submitted,

s/Andrew D. Ringel Andrew D. Ringel, Esq. Gillian Dale, Esq. Hall & Evans, L.L.C. 1125 17th Street, Suite 600 Denver, CO 80202-2052 [email protected] [email protected] 303-628-3300 ATTORNEYS FOR DEFENDANTS JOHN HYATT, ROBERT FAHEY, GARY NEET, GLORIA MASTERSON, CHARLES TAPPE, RICHARD MARTINEZ, BETTY FULTON, DAVID ROBERTS, PAUL CARRERAS, WILLIAM ZALMAN, CONNIE DAVIS, PATRICIA ROMERO, KEN MAESTAS, JOSEPH GARCIA, GARY CARR, DAVID ARCHLETA, NARD CLAAR, AND RICHARD HARLAN

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CERTIFICATE OF SERVICE (CM/ECF) I HEREBY CERTIFY that on the 29th day of September, 2005, I electronically filed the foregoing with the Clerk of Court using the CM/ECF system which will send notification of such filing to the following e-mail addresses: None and hereby certify that I have mailed or served the document or paper to the following non-CM/ECF participant in the manner (mail, hand delivery, etc.) indicated by the non-participant's name: Leonard Baldauf, #98415 Arkansas Valley Correctional Facility P.O. Box 1000 Crowley, CO 81034

s/Loree Trout, Secretary Andrew D. Ringel, Esq. Gillian Dale, Esq. Hall & Evans, L.L.C. 1125 17th Street, Suite 600 Denver, Colorado 80202-2052 303-628-3300 Fax: 303-293-3238 [email protected] [email protected] ATTORNEYS FOR DEFENDANTS JOHN HYATT, ROBERT FAHEY, GARY NEET, GLORIA MASTERSON, CHARLES TAPPE, RICHARD MARTINEZ, BETTY FULTON, DAVID ROBERTS, PAUL CARRERAS, WILLIAM ZALMAN, CONNIE DAVIS, PATRICIA ROMERO, KEN MAESTAS, JOSEPH GARCIA, GARY CARR, DAVID ARCHLETA, NARD CLAAR, AND RICHARD HARLAN
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