Beville v. Clear
| Citation | 25 F.3d 1055 |
| Parties | NOTICE: Although citation of unpublished opinions remains unfavored, unpublished opinions may now be cited if the opinion has persuasive value on a material issue, and a copy is attached to the citing document or, if cited in oral argument, copies are furnished to the Court and all parties. See General Order of |
| Decision Date | 29 November 1993 |
| Court | United States Courts of Appeals. United States Court of Appeals (10th Circuit) |
Before ANDERSON and KELLY, Circuit Judges, and LUNGSTRUM, ** District Judge.
After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed.R.App.P. 34(a); 10th Cir. R. 34.1.9. The case is therefore ordered submitted without oral argument.
Plaintiff Robin Bruce Beville appeals from the district court's grant of summary judgment in favor of defendants on his complaint pursuant to 42 U.S.C.1983 for deprivation of his liberty interest without due process. We have jurisdiction under 28 U.S.C. 1291 and affirm.
On September 4, 1985, plaintiff was convicted of attempted felony theft (a class 5 felony committed on November 26, 1984) and felony theft (a class 4 felony committed in December 1982). He was sentenced to four years on each conviction, to be served concurrently. Plaintiff's 1983 complaint generally alleges that the Colorado Department of Corrections (DOC) and various department employees violated his liberty interests by holding him in custody too long.
Based on his time served before and after sentencing and good and earned time credits accrued before and after sentencing, plaintiff was released on mandatory parole for three years on November 9, 1986. His parole was revoked for parole violations on July 12, 1989. In determining his subsequent periods of custody and his mandatory release date, DOC did not give plaintiff credit for the good and earned time credits he had earned prior to his parole violation or for the period he spent on parole before it was revoked. He was subsequently in custody or on parole, which is constructive custody, until July 17, 1990, when he received his mandatory discharge. Plaintiff claims that he should have been released on November 9, 1989. He claims that the defendants' failure to release him from custody at that time violated state parole statutes and, in turn, violated his liberty interest without due process. See, e.g., Kentucky Dep't of Corrections v. Thompson, 490 U.S. 454, 461-62 (1989).
We note first that it is unclear from plaintiff's complaint whether he is suing defendants in their official or individual capacities or both. Though this issue was not addressed by the district court, "we are free to affirm a district court decision on any grounds for which there is a record sufficient to permit conclusions of law." Griess v. Colorado, 841 F.2d 1042, 1047 (10th Cir.1988)(quotation omitted). To the extent he is suing them in their official capacities, that part of his complaint fails because it is barred by Eleventh Amendment immunity. See id. at 1044-45. Construing his pro se pleadings liberally, we conclude that he is also suing defendants in their individual capacities. See Houston v. Reich, 932 F.2d 883, 885 (10th Cir.1991).
Plaintiff's claims are based on two somewhat related theories. First, he claims that when his parole was revoked he should have been given credit for the good and earned time credits he had accrued at that point because they had "vested" under Colorado law. This argument is based primarily on People v. Leedom, 781 P.2d 173, 175 (Colo. Ct.App.1989), which held that good time and earned time credits may not be withdrawn once vested even after parole has been violated and revoked. As the district court correctly noted, this argument is invalid because Leedom was effectively overruled three months later by Bynum v. Kautzky, 784 P.2d 735, 738-39 (Colo.1989)(good time and earned time credits vest only for determining parole eligibility, not for determining time already served and period of reincarceration after parole violation).
Plaintiff argues that if Bynum did overrule Leedom and hold that his credits were not vested, then applying Bynum retroactively to his situation violates due process because it in effect amounts to an ex post facto law created by judicial construction that was unforeseeable. See Bouie v. City of Columbia, 378 U.S. 347, 353-54 (1964)("If a state legislature is barred by the Ex Post Facto Clause from passing such a law, it must follow that a State Supreme Court is barred by the Due Process Clause from achieving precisely the same result by judicial construction."); Devine v. New Mexico Dep't of Corrections, 866 F.2d 339, 342, 345 (10th Cir.1989)(for judicial interpretation of statute to violate due process, interpretation must be unforeseeable). We agree with the Colorado Court of Appeals' analysis and conclusion with respect to the same argument plaintiff advances here that Bynum was foreseeable and did not violate due process. People v. Grenemyer, 827 P.2d 603, 606-07 (Colo. Ct.App.1992). We therefore conclude that plaintiff's claim based on allegedly vested good and earned time credits is without merit.
Plaintiff's second theory is that he should have been given credit for the time he spent on parole prior to its being revoked. In support of this argument, he cites People v. Browning...
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