No. 83SA176Supreme Court of Colorado.
Decided July 2, 1984.
Appeal from the District Court, El Paso County Honorable Bernard Baker, Judge
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Barton, Schwartz Crowder, Ronald G. Crowder, for petitioner-appellant.
Duane Woodard, Attorney General, Charles B. Howe, Chief Deputy Attorney General, Richard H. Forman, Solicitor General, David R. Demuro, First Assistant Attorney General, for respondents-appellees.
EN BANC
JUSTICE KIRSHBAUM delivered the opinion of the Court.
[1] Petitioner, Larry White, appeals an order of the El Paso County District Court dismissing his amended petition for “Writ of Habeas Corpus, Or In The Alternative, Writ of Mandamus.” Petitioner was committed to the custody of the Department of Corrections for an indeterminate term, pursuant to section 16-13-203, 8 C.R.S. (1978), of the Colorado Sex Offenders Act, in November 1975. His petition, relying expressly on the provisions of section 13-45-103(2)(b), 6 C.R.S. (1973), and C.R.C.P. 106(a)(2),[1] seeks an order “directing the Department of Corrections to transfer the Petitioner forthwith to Fort Logan Mental Hospital or the Fort Logan Community Corrections facility.” The trial court ruled that it lacked jurisdiction to hear petitioner’s claims.[2] We affirm the trial court’s dismissal of petitioner’s habeas corpus claim, but reverse its conclusion that it had no jurisdiction over petitioner’s C.R.C.P. 106(a)(2) claim.Page 241
I
[2] The petition alleges that in May of 1982 the Parole Board ordered the petitioner transferred to the Fort Logan Mental Hospital pursuant to section 16-13-216(2), 8 C.R.S. (1983 Supp.), that the Department of Corrections took no action to effectuate such transfer, and that, therefore, petitioner is “being illegally detained.” The petition named the Executive Director of the Department of Corrections, the Superintendent of the Centennial Correctional Facility, and the Colorado Department of Corrections as respondents. The trial court issued a writ of habeas corpus to the two officials, who responded by asserting that the trial court lacked subject matter jurisdiction over the dispute and, alternatively, that the Parole Board in fact had ordered petitioner transferred to the Community Correctional Center at Fort Logan, not the Fort Logan Mental Hospital.
(1980), and that in any event the trial court has jurisdiction to consider the C.R.C.P. 106(a)(2) claim for relief in the nature of mandamus.
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[6] The Colorado Habeas Corpus Act, sections 13-45-101 to -211, 6 C.R.S. (1973 1983 Supp.), defines rights judicially enforceable by means of the venerable writ of habeas corpus. Ryan v. Cronin, 191 Colo. 487, 553 P.2d 754 (1976). Section 13-45-103(2) permits the discharge of incarcerated prisoners upon a showing of one or more of the following causes:
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transfer.” However, petitioner does not assert that, pursuant to section 13-45-103(2)(b), he is entitled to discharge from the custody and control of the Department of Corrections, nor does he assert a violation of any other section of the statute.
[16] In habeas corpus proceedings, judicial inquiry generally is limited to an investigation of the validity of petitioner’s confinement at the time of the hearing. Ryan v. Cronin, supra; Crumrine v. Erickson, 186 Colo. 139, 526 P.2d 148 (1974); McGill v. Leach, 180 Colo. 331, 505 P.2d 374 (1973) North v. Koch, 169 Colo. 508, 457 P.2d 915 (1969). Petitioner alleges only that the place of his confinement should be altered. He does not assert that the particular circumstances of his place of confinement deprive him of constitutionally protected rights. The alleged failure of the Department of Corrections to execute a transfer order issued by the Parole Board pursuant to section 16-13-216(2), 8 C.R.S. (1983 Supp.), does not in and of itself furnish any basis for the relief petitioner seeks. See Pigg v. Tinsley, 158 Colo. 160, 405 P.2d 687 (1965). In the absence of appropriate factual allegations in the petition, the trial court did not err in dismissing petitioner’s request for habeas corpus relief. Minor v. Tinsley, 154 Colo. 249, 389 P.2d 850 (1964). We, therefore, affirm the dismissal of this claim, although for reasons different from those expressed by the trial court. See Allen v. First National Bank, 120 Colo. 275, 208 P.2d 935 (1949).III
[17] The trial court relied upon our decision in Berry v. State Board, 148 Colo. 547, 367 P.2d 338 (1961), in dismissing the petition for mandamus relief, apparently viewing that case as authority for the proposition that actions of the Parole Board are immune from judicial scrutiny. Insofar as certain broad language of Berry and of Folks v. Patterson, 159 Colo. 403, 412 P.2d 214 (1966), suggested that courts lack authority to compel the Parole Board to carry out certain mandatory statutory duties, such language was expressly overruled in In re Question Concerning State Judicial Review, 199 Colo. 463, 610 P.2d 1340 (1980). Furthermore, petitioner here seeks review of conduct of the Department of Corrections; he certainly does not challenge the Parole Board’s transfer order.
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order, petitioner has alleged both a right to relief and a duty owed to him by the Department of Corrections.[3] It has not been suggested that petitioner has any other remedy available to him to compel the Department of Corrections to implement the Parole Board’s order. Accordingly, the petition contains sufficient allegations to state a claim for relief under C.R.C.P. 106(a)(2), and the trial court erred in dismissing the mandamus claim for lack of jurisdiction.
[24] The judgment dismissing petitioner’s claim for habeas corpus relief pursuant to section 13-45-103(2)(b) is affirmed. The judgment dismissing petitioner’s claim for relief in the nature of mandamus and for money damages is reversed, and the case is remanded to the trial court for further proceedings with respect to that claim. [25] JUSTICE QUINN does not participate.(Colo. 1981).