Wimberly v. Williams, 20-1128

CourtUnited States Courts of Appeals. United States Court of Appeals (10th Circuit)
Writing for the CourtBACHARACH, Circuit Judge.
Citation14 F.4th 1140
Parties Bruce E. WIMBERLY, Petitioner - Appellant, v. Dean WILLIAMS, Respondent - Appellee.
Docket NumberNo. 20-1128,20-1128
Decision Date29 September 2021

14 F.4th 1140

Bruce E. WIMBERLY, Petitioner - Appellant,
v.
Dean WILLIAMS, Respondent - Appellee.

No. 20-1128

United States Court of Appeals, Tenth Circuit.

FILED September 29, 2021


Kathleen Shen, Assistant Federal Public Defender, Districts of Colorado and Wyoming, Denver, Colorado (Virginia L. Grady, Federal Public Defender, Denver, Colorado, with her on the briefs), on behalf of the Petitioner-Appellant.

Ann Stanton, Assistant Attorney General (Phillip J. Weiser, Colorado Attorney General, and Ann Luvera, Assistant Attorney General, with her on the brief), Colorado Department of Law, Denver, Colorado, on behalf of the Respondent-Appellee.

Before BACHARACH, EBEL, and McHUGH, Circuit Judges.

BACHARACH, Circuit Judge.

In 1984, Mr. Bruce E. Wimberly pleaded guilty to first-degree sexual assault. The Colorado trial court accepted his plea and considered the sentencing options. One option was a conventional sentence: a determinate prison term up to 24 years. But the Colorado Sex Offenders Act of 1968 provided a second option: an indeterminate term of confinement lasting anywhere from one day to life imprisonment. The court chose the second option, made additional findings required by the statute, and imposed an indeterminate term of confinement ranging from one day to life imprisonment.

More than 24 years have passed. With passage of this time, Mr. Wimberly argues that the Constitution requires his release because he didn't receive a new hearing at the end of the 24-year determinate term (that the trial court chose not to impose). Without a new hearing, Mr. Wimberly claims that his continued confinement violates his rights to equal protection and due process.

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The federal district court rejected Mr. Wimberly's arguments, and so do we. The state trial court provided adequate procedural safeguards when imposing the indeterminate term of confinement, and that term could last anywhere from a single day to the rest of Mr. Wimberly's lifetime. The State thus had no constitutional duty to provide a new round of procedural safeguards 24 years into Mr. Wimberly's indeterminate term.

1. Based on the conviction, the state trial court imposes an indeterminate term of one day to life.

Mr. Wimberly's indeterminate term was authorized by the Colorado Sex Offenders Act of 1968, Colo. Rev. Stat. §§ 16–13–201 to 216 (1986). This statute authorized Colorado courts to "commit a sex offender ... for an indeterminate term" of one day to life "in lieu of the sentence otherwise provided by law." Colo. Rev. Stat. §§ 16–13–203 (1986). The state trial court applied this provision, as permitted, upon findings that

• Mr. Wimberly was a "sex offender," see Colo. Rev. Stat. § 16–13–202(4)–(5) (1986), and

• his release would create "a threat of bodily harm to members of the public," Colo. Rev. Stat. § 16–13–211(2) (1986) ; see also People v. Kibel , 701 P.2d 37, 40 (Colo. 1985) (explaining the procedures required to commit a defendant under the Sex Offenders Act).

Mr. Wimberly continues to serve the indeterminate term, and the Colorado Board of Parole has denied his multiple requests for release.

2. The federal district court denies habeas relief.

In federal district court, Mr. Wimberly applied for habeas relief, invoking 28 U.S.C. § 2241 and alleging a denial of equal protection and due process. On the equal-protection claim, he relied on the absence of procedural safeguards available to civilly committed Coloradans. On the due-process claim, Mr. Wimberly relied on the State's failure to provide a judicial hearing once he'd served 24 years of his indeterminate term.1 The federal district court denied habeas relief.

3. The maximum of the indeterminate term of confinement is life imprisonment, not 24 years.

The availability of habeas relief turns on the adequacy of process when the trial court ordered confinement, and the adequacy of process turns on whether Mr. Wimberly began a new term once he had served 24 years in prison. If he had not yet served the "maximum sentence" for his crime, no new process was necessary. See Specht v. Patterson , 386 U.S. 605, 87 S.Ct. 1209, 18 L.Ed.2d 326 (1967) ; Humphrey v. Cady , 405 U.S. 504, 92 S.Ct. 1048, 31 L.Ed.2d 394 (1972).

Mr. Wimberly contends that he has already served the maximum sentence, defining it as the longest possible determinate term: 24 years’ imprisonment.2 The district court rejected this assumption,

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treating the maximum indeterminate term as life imprisonment.

Because determination of the maximum sentence is a legal conclusion, we conduct de novo review. Leatherwood v. Allbaugh , 861 F.3d 1034, 1042 (10th Cir. 2017). Conducting this review, we agree with the district court. Mr. Wimberly's claim assumes that the maximum sentence was 24 years rather than life imprisonment. But this assumption lacks support in the Sex Offenders Act, Colorado Supreme Court opinions interpreting the statute, or the judgment of conviction.

When Mr. Wimberly was sentenced for first-degree sexual assault, the Sex Offenders Act allowed the state trial court to commit a sex offender to the custody of the Colorado Department of Corrections for an indeterminate term from one day to life "in lieu of the sentence otherwise provided by law ." Colo. Rev. Stat. § 16–13-203 (1986) (emphasis added). "In lieu of" means "in place of" or "instead of." In lieu of , Black's Law Dictionary 941 (11th ed. 2019) (Garner, ed.-in-chief).

By using the term "in lieu of," the Colorado legislature allowed the trial court to impose either a determinate sentence or the indeterminate sentence—but not both for the same offense. The Colorado Supreme Court has prohibited hybrid sentences incorporating both determinate and indeterminate sentencing options. This prohibition is reflected in People v. Sanchez , 184 Colo. 379, 520 P.2d 751 (1974), where the sentencing court had imposed a sentence of both a range of years and an indeterminate term of one day to life. Id. at 751. The Colorado Supreme Court held that the sentencing court had erred by imposing both alternatives. Id.

The Colorado Supreme Court explained that the sentencing court could commit the defendant to an indeterminate term of confinement, adding that "[i]f [the sentencing court] elects to exercise this option, it must do so in lieu of the sentence otherwise provided by law." Id. at 753 (internal quotation marks omitted). Given the indeterminate term, the sentencing court could not impose a "concurrent term for the underlying offense." Id. ; see also People v. Lyons , 185 Colo. 112, 521 P.2d 1265, 1267 (1974) (stating that Sanchez "established that the district courts could not give a defendant ... a sentence of commitment and a sentence of imprisonment") (cleaned up); People v. Ingram , 40 Colo.App. 518, 582 P.2d 689, 691 (1978) ("As Sanchez and Lyons recognize, concomitant to such power to commit a defendant as a sexual offender is the duty to elect between the sentencing option [of an indeterminate commitment as a sex offender] or a term of imprisonment.") (cleaned up).

In Mr. Wimberly's case, the trial court viewed an indeterminate term of confinement and a specific prison term as discrete sentencing options. The court chose a different option for each count of conviction. For the second count, the written judgment imposed an indeterminate sentence ranging from one day to life:

It is now the Judgment and Sentence of the Court that the Defendant be sentenced to the custody of the Executive Director of the Department of Corrections ... for a term of from 1 day to life pursuant to sex offenders act, C.R.S. 1973 16-13-102 plus 1 year parole.

R. at 23 (emphasis added; capitalization altered).

Two months earlier, the court had chosen a different sentencing option for Mr. Wimberly on a separate charge of sexual assault. That time, the judgment had specified "a term of 24 years plus 1 year parole." Id. at 22 (capitalization altered). The court had not mentioned an indeterminate term. Id.

Despite the wording of the newer judgment, Mr. Wimberly resists characterizing

14 F.4th 1145

his indeterminate term of confinement as a "sentence." He instead regards the indeterminate term as a form of "criminal commitment." In distinguishing between a sentence and a criminal commitment , Mr. Wimberly points out that Colorado's legislature and the Supreme Court have used the terms "committed" and "commitment" when referring to the Sex Offenders Act. See, e.g. , Colo. Rev. Stat. § 16-13-203 ("The district court ... may ... commit a sex offender to the custody of the [D]epartment [of Corrections] ....") (emphasis added).

But Mr. Wimberly misinterprets the statutory term "commitment." Colorado courts regularly interpret the statutory option of indeterminate commitment under the Sex Offenders Act as a

• "sentencing option[ ]," People v. White , 656 P.2d 690, 694 n.3 (Colo. 1983), or

• "sentence." People v. Kibel , 701 P.2d 37, 40 (Colo. 1985) ; People v. Medina , 193 Colo. 190, 564 P.2d 119, 121 (1977) ; People v. Breazeale , 190 Colo. 17, 544 P.2d 970, 976 (1975).

And...

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