Cardiel v. Brittian

• Decision Date: 20 July 1992
• Docket Number: No. 91SA348,91SA348
• Citation: 833 P.2d 748
• Parties: Andrew Steven CARDIEL, Petitioner-Appellant, v. Jim BRITTIAN, Superintendent of the Limon Correctional Facility, Respondent-Appellee.
• Court: Colorado Supreme Court

Page 748

833 P.2d 748

Andrew Steven CARDIEL, Petitioner-Appellant, v. Jim BRITTIAN, Superintendent of the Limon Correctional Facility, Respondent-Appellee.

No. 91SA348.

Supreme Court of Colorado En Banc.

July 20, 1992.

David F. Vela, State Public Defender, Kathleen A. Lord, Deputy State Public Defender, Denver, for petitioner-appellant.

Gale A. Norton, Atty. Gen., Raymond T. Slaughter, Chief Deputy Atty. Gen., Timothy M. Tymkovich, Sol. Gen., Paul Farley, Deputy Atty. Gen., John August Lizza, First Asst. Atty. Gen., Yvonne E. Scott, Asst. Atty. Gen., Denver, for respondent-appellee.

Justice LOHR delivered the Opinion of the Court.

Andrew Steven Cardiel appeals from the dismissal of his petition for habeas corpus relief by which he sought release from incarceration based on the contention that he had fully served the sentences imposed on him. We reverse and remand for further proceedings.

I.

The parties are in agreement regarding most of the critical facts surrounding this controversy. It is the legal effect of these facts that the parties dispute. On March 1, 1985, appellant Cardiel was convicted in Eagle County District Court of second-degree sexual assault ¹ and sentenced to the custody of the Department of Corrections (DOC) for a term of five years plus one year of parole. On November 4, 1986, the Colorado State Board of Parole (parole board, or board) issued a Notice of Parole Board Action by which it noted that the board had paroled the appellant to a Fremont County detainer for "1 year mandatory," subject to certain special conditions, and indicating a projected release date of January 30, 1987. On November 13, 1986, Cardiel was sentenced by the Fremont County District Court to the custody of the DOC for a term of four years "plus up to five years of parole" as a result of his conviction for possession of contraband in the first degree, ² the offense that was the subject of the Fremont County detainer. The court specified that the latter sentence was to be served consecutively to any sentence then being served by Cardiel.

On July 17, 1991, Cardiel petitioned the Lincoln County District Court for a writ of habeas corpus directed to the superintendent of the Limon correctional facility, in which he was incarcerated, contending that he had fully served both sentences. He represented himself throughout the proceedings. The court issued a writ ordering the superintendent to show cause why Cardiel was not entitled to immediate release, and the superintendent responded. See § 13-45-101, 6A C.R.S. (1987). The court held a hearing at which the superintendent was represented by an attorney from the office of the Colorado Attorney General, who participated by telephone. Cardiel presented the Notice of Parole Board Action indicating that he had been granted parole effective January 30, 1987. Cardiel also testified that he met with the parole board before it acted to grant parole. He stated that he had been found guilty of, but not sentenced on, the Fremont County charge before that meeting and that the parole board knew this before granting parole. The district court made no finding as to whether it credited this testimony. In addition, Cardiel attempted to introduce testimony of a witness proffered as an expert concerning the administrative procedures governing the grant and rescission of parole, but the district court sustained the objection of opposing counsel and declined to accept the qualifications of the witness. At the conclusion of Cardiel's case, counsel for the superintendent moved to dismiss on the basis that Cardiel had not presented a prima facie case of entitlement to release. The superintendent's counsel made unsupported argument to the court that a parole agreement and actual release from physical custody are necessary to an effective grant of parole. The district court agreed and ordered dismissal, in effect discharging the writ of habeas corpus. ³ This appeal followed.

II.

The central issue in this case is whether Cardiel was ever effectively granted parole on his 1985 sentence, and more specifically whether he established a prima facie case that he had been granted parole. Cardiel contends that the Notice of Parole Board Action establishes that parole was granted on his 1985 conviction and became effective January 30, 1987. He argues that because the parole board took no action to rescind, suspend or revoke parole, his one-year period of parole took effect as ordered and was fully served while he remained incarcerated on the Fremont County conviction. According to Cardiel's argument, he had fully served both his Fremont County and his 1985 Eagle County sentences as of January 30, 1991, and was entitled to immediate release. ⁴ Additionally, Cardiel asserts that the district court erred in refusing to accept his proffered expert witness who would have testified concerning parole board and DOC procedures for implementing and rescinding parole.

The superintendent, in contrast, contends that Cardiel was never effectively granted parole. The superintendent refers to the parole board action as only a "recommendation" for parole and advances several arguments in support of the position that parole was never granted. First, the superintendent argues that the parole was not granted because it was purportedly granted to a Fremont County detainer and could not be implemented in accordance with its terms because the detainer was automatically canceled or voided when Cardiel was sentenced on the underlying charge on November 13, 1986. Second, the superintendent asserts that parole was never effectively granted because Cardiel did not sign a parole agreement, an act that the superintendent argues is essential to the initiation of parole. Finally, the superintendent maintains that parole was not granted because Cardiel was never physically released from the custody of the DOC. According to the superintendent, when Cardiel received his Fremont County sentence, the DOC properly construed the two sentences as one continuous sentence pursuant to section 17-22.5-101, 8A C.R.S. (1986), and consequently, according to DOC calculations, Cardiel will not have fully served his sentence until November 30, 1992. ⁵

We first address whether Cardiel established a prima facie case that he was entitled to release. Concluding that he did, we then review his contention that the district court erred in refusing to accept the qualifications of the witness Cardiel tendered as an expert in parole procedure, for the issue is likely to arise in further proceedings.

III.

A.

The Habeas Corpus Act, §§ 13-45-101 to -119, 6A C.R.S. (1987 & 1991 Supp.), provides a civil remedy for the purpose of determining "whether the person instituting the proceeding is being unlawfully detained by the respondent who is holding him in custody." Mulkey v. Sullivan, 753 P.2d 1226, 1232 (Colo.1988). The only parties to a habeas corpus proceeding are the petitioner and the person holding the petitioner in custody, and the only issue for resolution is "whether the custodian has authority to deprive the petitioner of his liberty." Reed v. People, 745 P.2d 235, 238 (Colo.1987); accord Stilley v. Tinsley, 153 Colo. 66, 70, 385 P.2d 677, 680 (1963). ⁶ When a person petitions a district court for a writ of habeas corpus, he must make a written application "setting forth the facts concerning his imprisonment and in whose custody he is detained." § 13-45-101(1). The petitioner in a habeas corpus proceeding has the burden of alleging facts entitling him to relief. Pigg v. Tinsley, 158 Colo. 160, 162, 405 P.2d 687, 689 (1965); see also § 13-45-101(1). Unless it appears from the petition and supporting documents that the petitioner is not entitled to relief, the court must issue a writ of habeas corpus forthwith. § 13-45-101(1); People v. Calyer, 736 P.2d 1204, 1207 (Colo.1987); Osborne v. Van Cleave, 166 Colo. 398, 400, 443 P.2d 988, 989 (1968). Upon return of the writ, the court must set a hearing. § 13-45-103(1); Calyer, 736 P.2d at 1207.

"Because a habeas corpus petition filed pursuant to the [Habeas Corpus] Act initiates a special statutory proceeding, the Colorado Rules of Civil Procedure govern the proceeding insofar as they are consistent with the procedures delineated in the Act." Calyer, 736 P.2d at 1207; see Evans v. District Court, 194 Colo. 299, 302, 572 P.2d 811, 813 (1977) (stating converse of foregoing proposition); Wright v. Tinsley, 148 Colo. 258, 260-61, 365 P.2d 691, 692 (1961) (same). The Habeas Corpus Act, however, contemplates a less structured and more abbreviated hearing procedure than that utilized in other civil proceedings. Under the Act, "[t]he court shall proceed in a summary way to settle the facts by hearing the testimony and arguments ... of the prisoner and the person who holds him in custody and shall dispose of the prisoner as the case may require." § 13-45-103(1).

In the matter now before us, counsel for the superintendent moved to dismiss the proceeding at the conclusion of Cardiel's case on the basis that Cardiel had not presented a prima facie case entitling him to relief. A petitioner makes a prima facie showing by producing evidence that, when considered in a light most favorable to the petitioner and when all reasonable inferences therefrom are drawn in the petitioner's favor, would permit the court to find that the petitioner is entitled to release. Cf. People v. Shaver, 630 P.2d 600, 605 (Colo.1981) (defining prima facie case in the context of a challenge to the constitutional sufficiency of traffic offense convictions underlying an order of driver's license revocation). The court evaluated the evidence on the basis of the prima facie case standard in resolving the motion to dismiss. ⁷ We are satisfied that in doing so the court acted within its discretion in implementing the statutory mandate to proceed in a summary way to settle the facts by hearing testimony and arguments of the prisoner and his...