Evans v. District Court In and For Arapahoe County, No. 27634

• Docket Nº: No. 27634
• Citation: 194 Colo. 299, 572 P.2d 811
• Case Date: November 29, 1977
• Court: Supreme Court of Colorado

Page 811

572 P.2d 811 194 Colo. 299 Donald R. EVANS, Petitioner,
v.
DISTRICT COURT IN AND FOR the COUNTY OF ARAPAHOE and the
State of Colorado,and the Honorable Richard D.
Greene, a judge thereof, Respondents. No. 27634. Supreme Court of Colorado, En Banc. Nov. 29, 1977.

Page 812

[194 Colo. 300] J. D. MacFarlane, Atty. Gen., David W. Robbins, Deputy Atty. Gen., Edward G. Donovan, Sol. Gen., Joseph N. de Raismes, First Asst. Atty. Gen., Frederick Y. Yu, Asst. Atty. Gen., Denver, for petitioner.

Rollie R. Rogers, Colorado State Public Defender, James F. Dumas, Jr., Chief Deputy State Public Defender, Denver, Forrest W. Lewis, Deputy State Public Defender, Littleton, for respondents.

KELLEY, Justice.

[194 Colo. 301] Donald R. Evans, Superintendent of the Colorado State Penitentiary, the petitioner herein, initiated this original proceeding pursuant to C.A.R. 21 for relief in the nature of prohibition. He petitioned this court to restrain the respondent judge from proceeding further in the case of Gibson, et al. v. Evans, Civil Action No. 37054, now pending before the respondent, and to quash the writs of habeas corpus previously issued in that case by the respondent. We issued a rule to show cause, which we now make absolute.

Plaintiffs in Civil Action No. 37054, Gary M. Gibson, Robert Rivera, Wilbur Cabanyog and Charles Penno (hereinafter, prisoners), are all prisoners of the Colorado State Penitentiary, having been duly convicted and sentenced. It does not appear in the record before us from whence the prisoners were convicted and sentenced. The inmates, by and through the public defender, petitioned the respondent court for a writ of habeas corpus. In their petition the prisoners alleged that, pursuant to penitentiary classification procedures, they were all given regressive classifications which resulted in substantial losses of privilege and statutory and meritorious good time. The petition further alleged that they "were deprived of their liberty by virtue of said regressive classification and were not afforded a hearing that complied with minimal due process of law."

Simultaneously with their petition for a writ of habeas corpus, the prisoners filed a motion for waiver of the necessity of attaching copies of the warrants of commitment, as required by section 13-45-101(1), C.R.S.1973. The respondent judge ordered that a writ of habeas corpus issue to petitioner without ruling on the motion for waiver.

The petitioner contends that the respondent exceeded his jurisdiction under the Habeas Corpus Act, section 13-45-101, et seq., C.R.S.1973, in the following respects: (1) "Habeas corpus is not available as a

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remedy to challenge confinement pursuant to a regressive classification"; (2) the prisoners failed to exhaust their administrative remedies; (3) the petition was not accompanied by the jurisdictional and statutorily required copies of warrants of commitment as set forth in section 13-45-101(1); (4) under the facts of this case, venue is improper in Arapahoe County; and (5) the respondent failed to require security or payment of transportation costs. ¹

[194 Colo. 302] We agree with the petitioner as to issues (3) and (4) and therefore do not reach the other issues raised by him.

I.

Pursuant to section 13-45-101(1), petitions for writs of habeas corpus

"shall be accompanied by a copy of the warrant of commitment, or an affidavit that the said copy has been demanded of the person in whose custody the prisoner is detained, and by him refused or neglected to be given."

This is a mandatory requirement; it is therefore jurisdictional. Prisoners must comply with the requirement, and the courts may not waive it. Garrett v. Knight, 173 Colo. 419, 480 P.2d 569 (1971).

Instead of attaching the designated documents, the prisoners filed a motion for leave to file their petition without the necessary accompanying papers. The respondent judge ignored the motion and granted the...