FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT February 13, 2020
_________________________________
Christopher M. Wolpert
Clerk of Court
RAYMOND LEE FETZER,
Plaintiff - Appellant,
v. No. 19-1200
(D.C. No. 1:19-CV-00089-LTB)
RICK RAEMISCH, Executive Director of (D. Colo.)
the Colorado Department of Corrections;
MARY CARLSON, Head of Time/Release
Operations for the C.D.O.C.,
Defendants - Appellees.
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before MATHESON, KELLY, and PHILLIPS, Circuit Judges.
_________________________________
Raymond Lee Fetzer, a Colorado state prisoner appearing pro se, appeals the
district court’s judgment in favor of defendants on claims brought under 42 U.S.C.
§ 1983 concerning the calculation of his parole-eligibility date. Exercising
jurisdiction under 28 U.S.C. § 1291, we affirm.
*
After examining the brief and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral
estoppel. It may be cited, however, for its persuasive value consistent with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
I. Background
Fetzer is serving sentences for multiple convictions dating back to 1988. He
filed a mandamus petition in state court to compel the Colorado Department of
Corrections (CDOC) to recalculate his parole-eligibility date (PED). He alleged that
by designating one of the longest of his concurrent sentences (a 30-year sentence) as
the governing sentence and computing his PED based solely on that sentence, CDOC
failed to comply with a Colorado statutory requirement to treat all of his separate
sentences as a single continuous sentence. See Exec. Dir. Colo. Dep’t of Corr. v.
Fetzer, 396 P.3d 1108, 1109 (Colo. 2017) (discussing mandamus petition).
According to Fetzer, if CDOC had calculated his PED according to the statutory
mandate, he would have become eligible for parole several years earlier. See id. The
state district court denied the petition, but the Colorado Court of Appeals (CCA)
reversed and remanded. See id. The state appealed, and the Colorado Supreme Court
affirmed the judgment but reversed the remand order, directing the district court to
conduct further proceedings in accordance with the Supreme Court’s opinion. See id.
According to Fetzer’s complaint in this action, on remand, the state district
court ordered CDOC to recalculate his PED in accordance with the Colorado
Supreme Court’s opinion, and CDOC recalculated the PED but intentionally
misapplied several Colorado statutes, again resulting in an incorrect PED.
Fetzer then filed an amended mandamus petition in state court, which the court
denied. He appealed that decision to the CCA, and as of this writing, that appeal
remains pending.
2
Fetzer next filed this § 1983 action against defendants in their official and
individual capacities, alleging they improperly calculated his PED and his mandatory
release date (MRD), and that doing so violated his Fourteenth Amendment
due-process rights and his right to equal protection under the Colorado constitution.
He sought monetary damages and injunctive relief. He also asked to proceed in
forma pauperis (IFP). The district court granted IFP and, because Fetzer’s complaint
concerned the same issues as his pending appeal before the CCA, ordered Fetzer to
show cause why the court should not dismiss the case under the Younger abstention
doctrine.1
After Fetzer responded, the district court entered an order dismissing without
prejudice (1) any official-capacity claims for money damages as barred by Eleventh
Amendment sovereign immunity and (2) any official-capacity claims for prospective
injunctive relief under the Younger abstention doctrine because of the ongoing
state-court mandamus proceeding.
Turning to Fetzer’s individual-capacity due-process claim for money damages
arising from the calculation of his PED, the district court ruled that Younger
abstention would be proper but for the legal frivolity of that claim. The court
explained that the grant of parole is a privilege, not a right, and even if the court
1
Younger v. Harris, 401 U.S. 37 (1971). “The Younger doctrine, as
developed, requires abstention when federal proceedings would (1) interfere with an
ongoing state judicial proceeding (2) that implicates important state interests and
(3) that affords an adequate opportunity to raise the federal claims.” J.B. ex rel. Hart
v. Valdez, 186 F.3d 1280, 1291 (10th Cir. 1999).
3
ordered defendants to calculate a specific PED, which Fetzer claimed was a
nondiscretionary act affording him a state-created liberty interest in a correctly
calculated PED, the Colorado Parole Board has unlimited discretion whether to grant
or deny parole. Therefore, the court concluded, Fetzer did not have a liberty interest
in a particular PED, and the claim was legally frivolous. Consequently, rather than
abstain under Younger, the court dismissed the claim pursuant to 28 U.S.C.
§ 1915(e)(2)(B)(i),2 with prejudice.
Finally, the court stayed and administratively closed the case with regard to
the one remaining claim, Fetzer’s individual-capacity due-process claim arising from
the calculation of his MRD. Fetzer appealed the district court’s order, but we
dismissed the appeal for lack of jurisdiction. See R., Vol. I at 74-77.
Fetzer then filed a motion to dismiss the remaining MRD claim, stating he had
not intended to raise such a claim. Construing the motion to dismiss as a motion for
voluntary dismissal of the MRD claim under Fed. R. Civ. P. 41(a)(1), the district
court granted it and entered judgment in favor of defendants.3
Fetzer appeals only the district court’s dismissal with prejudice of his
individual-capacity due-process claim for damages arising out of the alleged
miscalculation of his PED.
2
In pertinent part, the statute requires a district court to dismiss a case if the
court determines it “is frivolous.” § 1915(e)(2)(B)(i).
3
Because of the procedural posture of the case, defendants never entered an
appearance in either the district court or this court.
4
II. Standard of review
We review de novo a district court’s § 1915(e)(2)(B)(i) dismissal of a claim as
legally frivolous. Fogle v. Pierson, 435 F.3d 1252, 1259 (10th Cir. 2006). Because
Fetzer is pro se, we construe his filings liberally but do not act as his advocate. See
Yang v. Archuleta, 525 F.3d 925, 927 n.1 (10th Cir. 2008).
III. Discussion
“No State shall . . . deprive any person of life, liberty, or property, without due
process of law . . . .” U.S. Const. amend. XIV, § 1. To invoke this procedural
protection, a person “must establish that one of these rights is at stake.” Wilkinson v.
Austin, 545 U.S. 209, 221 (2005). “A liberty interest may arise from the Constitution
itself, by reason of guarantees implicit in the word ‘liberty,’ or it may arise from an
expectation or interest created by state laws or policies.” Id. (citations omitted).
Here, Fetzer invokes a liberty interest, but not in parole itself, and for good
reason: “There is no constitutional or inherent right of a convicted person to be
conditionally released before the expiration of a valid sentence.” Greenholtz v.
Inmates of Neb. Penal & Corr. Complex, 442 U.S. 1, 7 (1979); see also Nowak v.
Suthers, 320 P.3d 340, 348 (Colo. 2014) (explaining that under Colorado law, “[t]he
grant of parole is a privilege, not a right,” and even after a “PED is calculated, the
parole board has the ultimate discretion to grant or deny parole based on the totality
of the circumstances”). Instead, proceeding essentially under Wilkinson’s
5
“expectation or interest” formulation, 545 U.S. at 221,4 Fetzer characterizes the
liberty interest at stake as the right to have his PED accurately calculated as directed
by several Colorado statutes.5 He contends those statutes eliminate discretion in
determining a PED, and therefore Colorado has “create[d] a protected liberty interest
by placing substantive limitations on official discretion,” Olim v. Wakinekona,
461 U.S. 238, 249 (1983) (abrogated on other grounds as recognized in Elwell v.
Byers, 699 F.3d 1208, 1214 (10th Cir. 2012)).
We disagree. “[W]hat Wilkinson meant by an ‘expectation or interest’ was . . .
a present and legally recognized substantive entitlement.” Kerry v. Din, 575 U.S. 86,
___, 135 S. Ct. 2128, 2136-37 (2015) (plurality opinion). As the Court stated earlier
in Olim: “Process is not an end in itself. Its constitutional purpose is to protect a
substantive interest to which the individual has a legitimate claim of entitlement.”
461 U.S. at 250 (emphasis added). What Fetzer ultimately seeks is parole, but as he
properly concedes, he has no “legitimate claim of entitlement” to parole. He
therefore has no subsidiary liberty interest in the process used to determine his PED,
even if that process involves a nondiscretionary calculation. See Dist. Att’y’s Office
v. Osborne, 557 U.S. 52, 67-68 (2009) (concluding that a prisoner has no liberty
interest with respect to “any procedures available to vindicate an interest in state
4
Fetzer does not cite Wilkinson or refer to its “expectation or interest”
formulation, but he repeatedly refers to a “State-Created Liberty Interest,” see Aplt.
Br. at 3, 4, 6, 7, 12, 16, 18, 21, 23, 25, 26, 29, which is no different.
5
The statutes he relies on are scattered throughout Title 17, Article 22.5 of the
Colorado Revised Statutes.
6
clemency” because clemency is inherently discretionary); Olim, 461 U.S. at 250 (“If
officials may transfer a prisoner for whatever reason or no reason at all, there is no
[substantive liberty] interest for process to protect.” (citation and internal quotation
marks omitted)); Elliott v. Martinez, 675 F.3d 1241, 1245 (10th Cir. 2012) (“[A]n
entitlement to nothing but procedure cannot be the basis for a liberty . . . interest.”
(internal quotation marks omitted)); cf. Conn. Bd. of Pardons v. Dumschat, 452 U.S.
458, 463 (1981) (explaining that a “state-created right can, in some circumstances,
beget yet other rights to procedures essential to the realization of the parent right,”
but “the underlying right must have come into existence before it can trigger due
process protections” (emphasis added)); Nowak, 320 P.3d at 348 (“The parole
eligibility date is just that—an eligibility date.”). Put differently, absent an
overarching right to parole, the mere fact that the process used to determine a PED is
(allegedly) nondiscretionary is insufficient to create a liberty interest that the Due
Process clause protects.
IV. Conclusion
The district court’s judgment is affirmed. We grant Fetzer’s motion to proceed
IFP on appeal but remind him of his obligation under 28 U.S.C. § 1915(b)(1)-(2) to
continue making partial payments until his filing fee is paid in full.
Entered for the Court
Paul J. Kelly, Jr.
Circuit Judge
7
Fetzer v. Raemisch
Combined Opinion