UNITED STATES COURT OF APPEALS
Filed 9/26/96
TENTH CIRCUIT
DEAN WILDERMUTH, a/k/a Shane
McKnight,
Plaintiff - Appellant,
No. 96-1167
v. (D. Ct. No. 96-S-602)
(D. Colo.)
YVONNE E. SCOTT; DON ALDERS,
State Parole Board Member,
Defendants - Appellees.
ORDER AND JUDGMENT *
Before TACHA, BALDOCK, and BRISCOE, Circuit Judges.
After examining the briefs and the appellate record, this three-judge panel
has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1.9. The cause is therefore ordered submitted without oral argument.
Appellant Dean Wildermuth appeals the district court’s dismissal of his 42
U.S.C. § 1983 action as frivolous under 28 U.S.C. § 1915(d). In his complaint
*
This order and judgment is not binding precedent, except under the doctrines of law of
the case, res judicata, and collateral estoppel. This court generally disfavors the citation of orders
and judgments; nevertheless, an order and judgment may be cited under the terms and conditions
of 10th Cir. R. 36.3.
appellant claimed that Parole Board’s failure to conduct a parole hearing pursuant
to Colo. Rev. Stat. § 17-2-201(4)(a) (1986) implicates a liberty interest and
constitutes a denial of due process under the Fourteenth Amendment. The district
court dismissed the complaint as frivolous under section 1915(d) because the
Board’s decision not to afford appellant an annual parole hearing under the
amended version of Colo. Rev. Stat. § 17-2-201(4)(a) (1995 Supp.) does not
implicate a Fourteenth Amendment liberty interest.
Section 17-2-201(4)(a) governs the timing of an applicant’s parole review.
Appellant contends that the relevant Colorado statute is the pre-amendment
version of section 17-2-201(4)(a) and that the district court erred in applying the
amended version of that statute “retroactively.” Under the pre-amendment
version, the Parole Board was bound to annually review the denial of an eligible
applicant’s parole. The amended version of section 17-2-201(4)(a) that became
effective on July 1, 1994, changes this rule. Under the amended statute, the
Parole Board retains the discretion to reconsider granting parole to an applicant
convicted of a class 1 or class 2 crime of violence every three years rather than
every year. See Colo. Rev. Stat. § 16-11-309.
Although appellant correctly notes that statutes are generally applied
prospectively, he applies this general principle incorrectly. Neither the Parole
Board nor the district court applied this statute retroactively, but only
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prospectively. From July 1, 1994, onward, the statute allows the Board to
postpone the rehearing of the denial of an applicant’s parole for two additional
years. The Board’s discretion is not limited by the date that a particular applicant
was convicted or sentenced. In appellant’s case, the Parole Board exercised that
discretion under the amended statute, choosing to review the denial of his parole
in three years rather than one year. Therefore, the court must next consider
whether the district court correctly held that the amended section 17-2-201(4)(a)
does not create a liberty interest under the Fourteenth Amendment..
Although a state may create a liberty interest in the review of parole
decisions that is protected by the Fourteenth Amendment, the provision at issue
here is not such a statute. Indeed, one of the ordinary incidents of appellant’s
incarceration is that the Board may reconsider the denial of his parole every year
or every three years at the option of the Parole Board. The application of the
statute at issue constitutes neither a restraint on appellant’s freedom that “exceeds
the sentence in such an unexpected manner as to give rise to protection of the Due
process clause by its own force” nor a restraint that imposes “atypical and
significant hardship on the inmate in relation to the ordinary incidents of prison
life.” Sandin v. O’Connor, ___ U.S. ___, 115 S. Ct. 2293, 2300 (1995). Neither
will the Board’s action “inevitably affect the duration of [appellant’s] sentence.”
Sandin, 115 S. Ct. at 2301. The Board’s decision to review the denial of
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appellant’s parole in three years rather than one does not implicate appellant’s
liberty interests under the Fourteenth Amendment. Accordingly, we AFFIRM the
decision of the district court.
The mandate shall issue forthwith.
ENTERED FOR THE COURT,
Deanell Reece Tacha
Circuit Judge
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