UNITED STATES COURT OF APPEALS

Tenth Circuit

Byron White United States Courthouse

1823 Stout Street

Denver, Colorado 80294

(303) 844-3157

Patrick J. Fisher, Jr.	Elisabeth A. Shumaker

Clerk	Chief Deputy Clerk

June 23, 1998

TO:	ALL RECIPIENTS OF THE CAPTIONED OPINION

RE:	97-1259, Wildermuth v. Furlong

March 25, 1998

The published opinion originally filed on March 25, 1998, is amended to include Judge Stephan H. Anderson's dissent. A copy of the majority opinion and the dissent are attached for your convenience.

Very truly yours,

Patrick Fisher, Clerk

Keith Nelson

Deputy Clerk

PUBLISH

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

DEAN WILDERMUTH, also known as Shane McKnight,

Petitioner-Appellant,

v.

ROBERT FURLONG; COLORADO DEPARTMENT OF PAROLE, also known as Parole Department; ATTORNEY GENERAL OF THE STATE OF COLORADO,

Respondents-Appellees.	No. 97-1259

Appeal from the United States District Court

for the District of Colorado

(D.C. No. 96-D-599)

Submitted on the briefs:*

Michael G. Katz, Federal Public Defender, and Howard A. Pincus, Assistant Federal Public Defender, for the Petitioner-Appellant.

Gale A. Norton, Attorney General, and Joseph Haughain, Assistant Attorney General, Civil Litigation Section, for the Respondents-Appellees.

Before ANDERSON, McKAY and LUCERO, Circuit Judges.

LUCERO, Circuit Judge.

Mr. Wildermuth is a prisoner in the Colorado state system convicted of first degree murder, serving a life sentence which began in 1975. He has appeared before the Parole Board several times. The Board has denied parole each time. Mr. Wildermuth commenced this 28 U.S.C. § 2254 action after his last parole hearing in 1995.1 He appeals from an order of the district court denying his petition.2 We affirm.

In his petition, Mr. Wildermuth alleges that the Parole Board violated his constitutional rights by requiring that he complete a sex offender treatment program ("SOTP") before becoming eligible for parole. Mr. Wildermuth asserts that he need not complete the SOTP because his crime was not sexual in nature.

The magistrate judge held an evidentiary hearing at which a Parole Board member, Ms. Scott, testified. The magistrate judge found her testimony credible and therefore recommended that the district court find no constitutional violation had occurred. After reviewing the entire record and considering Mr. Wildermuth's objections to the magistrate's findings, the district court adopted the recommendation and denied relief.

On appeal, Mr. Wildermuth argues that the district court erred in finding that the Board had not violated his constitutional rights. He also contends that the district court should have held an evidentiary hearing because Ms. Scott's testimony before the magistrate was inconsistent with her statements recorded at the parole hearing.

When reviewing a district court's denial of a habeas petition, we accept the court's findings of fact unless they are clearly erroneous. See Brewer v. Reynolds, 51 F.3d 1519, 1522 (10th Cir. 1995), cert. denied, 116 S. Ct. 936 (1996). We review the court's conclusions of law de novo. See id.

Before the magistrate, Ms. Scott testified that Mr. Wildermuth was denied parole for several reasons. She noted that he has never expressed remorse for his conduct and has changed his account of the crime multiple times. Her major concern, she testified, arose from Mr. Wildermuth's statement that when he gets drunk, he blacks out and becomes violent: "[T]here's no indication at all that this cannot reoccur. Because when he gets drunk he gets violent and he blacks out. And he commits these types of crimes. And that's a scary thought to me, and to me that makes him a public risk." II R. at 62-63. She conceded that Petitioner's refusal to participate in various programs offered at the prison, as well as the reasons for his refusal, factored into her decision.

Petitioner asserts that the district court should have held a de novo evidentiary hearing, because Ms. Scott's testimony before the magistrate is at odds with her statements at the parole hearing. If a party files objections to the magistrate judge's credibility findings, the district court must undertake a de novo review of the record, which includes reading the transcript of the evidentiary hearing. See Gee v. Estes, 829 F.2d 1005, 1008-09 (10th Cir. 1987). However, a de novo hearing is not required if the court adopts the magistrate judge's recommendation. See United States v. Orrego-Fernandez, 78 F.3d 1497, 1501 (10th Cir. 1996); see also United States v. Raddatz, 447 U.S. 667, 681 n.7 (1980) (district court's rejection of a magistrate judge's proposed findings on credibility without seeing and hearing the witness whose credibility was at issue could give rise to serious questions). Because the district court accepted the magistrate judge's findings and credibility determination, a de novo hearing was not required.

Mr. Wildermuth is not entitled to mandatory parole. See Thiret v. Kautzky, 792 P.2d 801, 805 (Colo. 1990) (only inmates serving sentences for crimes committed between July 1, 1979 and July 1, 1985, are entitled to mandatory parole). Thus, the district court reviews the Parole Board's action for abuse of discretion, asking whether the Board's action resulted "in an abridgement of the petitioner's constitutional rights." Paz v. Warden, Fed. Correctional Inst., 787 F.2d 469, 473 (10th Cir. 1986) (Billiteri v. United States Bd. of Parole, 541 F.2d 938, 944 (2d Cir. 1976)); see also Schuemann v. Colorado State Bd. of Adult Parole, 624 F.2d 172, 173 (10th Cir. 1980). We review the district court's decision de novo. See Paz, 787 F.2d at 472-73.

"[W]here the denial of parole . . . rests on one constitutionally valid ground, the Board's consideration of an allegedly invalid ground would not violate a constitutional right." Bloodgood v. Garraghty, 783 F.2d 470, 475 (4th Cir. 1986). Here the Board's denial rested upon several valid reasons: Mr. Wildermuth's lack of remorse, his inconsistent stories, and his violent tendencies when drunk. We need not reach the propriety of the Board's consideration of the SOTP issue, because even if the Board considered Mr. Wildermuth's refusal to participate in the SOTP in reaching its decision, no error occurred. See id.; Solomon v. Elsea, 676 F.2d 282, 290-91 (7th Cir. 1982) (so long as sufficient evidence was before Parole Board to support its decision, its actions are not an abuse of discretion). We see no reason to disturb the Board's decision or that of the district court.

The judgment is AFFIRMED.

PUBLISH

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

DEAN WILDERMUTH, also known as Shane McKnight,

Petitioner - Appellant,
v.	No. 97-1259
ROBERT FURLONG; COLORADO DEPARTMENT OF PAROLE, also known as Parole Department; ATTORNEY GENERAL OF THE STATE OF COLORADO,

Respondents - Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLORADO

(D.C. NO. 96-D-599)

Submitted on the briefs:*

Michael G. Katz, Federal Public Defender, and Howard A. Pincus, Assistant Federal Public Defender, Denver, Colorado, for the Petitioner-Appellant.

Gale A Norton, Attorney General, and Joseph Haughain, Assistant Attorney General, Civil Litigation Section, Denver, Colorado, for the Respondents - Appellees.

Before ANDERSON, McKAY, and LUCERO, Circuit Judges.

ANDERSON, Circuit Judge, dissenting.

We should never have reached the merits of this case. In direct conflict with abundant Supreme Court authority, the majority opinion has improperly constitutionalized discretionary Colorado state parole board decisions without identifying the source of any liberty interest or other constitutional grounds.
In 1995, Wildermuth, a Colorado state inmate sentenced to life for first degree murder, was denied parole. In response to this denial, Wildermuth filed a petition for a writ of habeas corpus under 28 U.S.C. § 2254, arguing that "[t]he Colorado Parole Board, by basing its decision on inmate's refusal to confess to rape and participate in the sex offender treatment program, a crime for which he was never charged, acted arbitrarily and capriciously." The district court ultimately denied this petition, and Wildermuth appeals.

Wildermuth's petition is based on two versions of a single issue—whether the parole board violated the Constitution by allegedly requiring him to confess to an uncharged crime in order to enter a sex offenders treatment program and thus obtain parole. Construing his petition broadly, I interpret Wildermuth's argument to be either that the parole board violated his Fifth Amendment right against self-
incrimination or that the board violated his Fourteenth Amendment right to due process.1

The Supreme Court has recently rejected an argument substantially similar to the issue Wildermuth raises regarding an alleged violation of his Fifth Amendment rights. In Ohio Adult Parole Authority v. Woodard, 118 S. Ct. 1244 (1998), a unanimous Court held that a voluntary interview does not "compel" an inmate to speak, and thus does not offend the Fifth Amendment. Id. at 1252 (analyzing Ohio's clemency proceedings). Here, Wildermuth's parole interview was voluntary, and "pressure to speak in the hope of improving his chance of being granted [parole] does not make the interview compelled." Id. at 1253.2

As for Wildermuth's due process claim, the Supreme Court has also squarely addressed this issue. As always, the threshold question in any due process analysis for a case like this is whether a liberty interest is implicated.3 Greenholtz v. Inmates of Neb. Penal & Correctional Complex, 442 U.S. 1, 7 (1979); see Shirley v. Chestnut, 603 F.2d 805, 806 (10th Cir. 1979) (applying Greenholtz). Here, the state parole board's wholly discretionary decision does not implicate a constitutional liberty interest.

First, Wildermuth has no liberty interest in parole through the Due Process clause itself. See Greenholtz, 442 U.S. at 7 ("There is no constitutional or inherent right of a convicted person to be conditionally released before the expiration of a valid sentence."); Malek v. Haun, 26 F.3d 1013, 1015 (10th Cir. 1994). Wildermuth's interest in release "is indistinguishable from the initial resistance to being confined," and that interest was extinguished by his conviction and sentence. Greenholtz, 442 U.S. at 7; see Ohio Adult Parole Auth., 118 S. Ct. at 1249.

Second, although a liberty interest in parole may be created if the state employs mandatory language in its statutory scheme, Greenholtz, 442 U.S. at 11-
12; Board of Pardons v. Allen, 482 U.S. 369, 375-78 (1987), Colorado's statutory language does not create such a liberty interest here. In Colorado, the parole board is given the "sole power to grant or refuse to grant parole" to inmates such as Wildermuth who were convicted of a felony committed prior to July 1, 1979. See Colo. Rev. Stat. § 17-2-201(5)(a); Martinez v. Furlong, 893 P.2d 130, 131 (Colo. 1995) (en banc). Therefore, for Wildermuth, "the Colorado statutory scheme does not create a constitutionally protected entitlement to, or liberty interest in, parole."4 Thompson v. Riveland, 714 P.2d 1338, 1340 (Colo. Ct. App. 1986); see also Ohio Adult Parole Auth., 118 S. Ct. at 1250-51 (citing Greenholtz and concluding that Ohio's discretionary clemency procedures create only a "unilateral hope," and not a "substantive expectation," in clemency).

The Supreme Court has held that under a discretionary parole scheme such as Colorado's which does not create an entitlement to or liberty interest in parole, an inmate is not entitled to due process protections. See Greenholtz, 442 U.S. at 7 (analyzing a state parole statute and stating that due process protections apply only when a person has a "legitimate claim of entitlement" and warning that decisions of the Executive Branch do not automatically invoke due process protection, no matter how serious their impact); see also Ohio Adult Parole Auth., 118 S. Ct. at 1250-52 (plurality opinion) (analyzing discretionary state clemency procedures); Connecticut Bd. of Pardons v. Dumschat, 452 U.S. 458, 464-67 (1981) (analyzing discretionary state commutation procedures ).

Because Wildermuth has no liberty interest in parole under Colorado's system and thus is not entitled to due process protections, he has no claim which would entitle him to relief and his petition should have been dismissed without an evidentiary hearing, and without analyzing the case on the merits.5

The district court proceeded to the merits, however, without addressing the liberty interest issue. In particular, the district court relied on Paz v. Warden, 787 F.2d 469, 473 (10th Cir. 1986) (holding that the U.S. Parole Commission acted arbitrarily and capriciously in requiring a federal inmate to confess to uncharged crimes as a prerequisite to parole). The district court's reliance on Paz is misplaced, however, because Paz involved a federal parole statute, which is unique from the state parole statute at issue here and which may or may not create a protected liberty interest. See Miller v. Federal Bureau of Prisons, 989 F.2d 420, 423 n.4 (10th Cir. 1993) (assuming without deciding that the federal parole statutes create a protected liberty interest and citing cases that have declined to address the issue); Roberts v. Corrothers, 812 F.2d 1173, 1179 (9th Cir. 1987) (noting that other circuits have addressed the issue and held that federal parole statutes do create a protected liberty interest). Because the federal inmate in Paz likely had a liberty interest in parole that Wildermuth does not have, the district court, relying on that case, and subsequently this court in its majority opinion, engaged in an inappropriate due process merits analysis.6

Finally, to the extent that Wildermuth's due process claim may be substantive, rather than procedural, it also fails.7 See, e.g., Johnson v. Rodriguez, 110 F.3d 299, 308 (5th Cir.), cert. denied, 118 S. Ct. 559 (1997) ("[B]ecause Texas prisoners have no protected liberty interest in parole they cannot mount a challenge against any state parole review procedure on procedural (or substantive) Due Process grounds."); Jones v. Georgia State Bd. of Pardons & Paroles, 59 F.3d 1145, 1150 (11th Cir. 1995) (rejecting a substantive due process claim because the inmate had no due-process protected liberty interest in parole); Bailey v. Gardebring, 940 F.2d 1150, 1157 (8th Cir. 1991) (affirming the denial of a substantive due process claim because the inmate had no liberty interest in parole and no fundamental right to parole).8

Ultimately, the district court denied Wildermuth's § 2254 petition, as did the majority opinion here. Those dispositions would be correct if the case warranted a denial on the merits; however, the merits should not have been reached. Because Wildermuth does not allege the violation of a federal right, his petition should have been dismissed by the district court on that ground, and no certificate of probable cause should have been issued by the district court and none should issue from this court.9 This appeal should have been dismissed. Accordingly, I respectfully dissent.10