SUPREME COURT

STATE OF COLORADO

2 East 14th Avenue
Denver, CO 80203
COURT USE ONLY
Supreme Court Case No.
2013SA336
On Appeal from Honorable Judge David M.
Thorson, District Court Fremont County
Case No. 2012CV22

RANDAL ANKENEY,

Petitioner-Appellee,

v.

RICK RAEMISCH, EXECUTIVE
DIRECTOR OF COLORADO
DEPARTMENT OF CORRECTIONS, LOU
ARCHULETTA, WARDEN OF THE
FREMONT CORRECTIONAL FACILITY,

Respondents-Appellants.
JOHN W. SUTHERS, Attorney General
JAMES X. QUINN, First Assistant
Attorney General, *
Ralph L. Carr Colorado Judicial Center
1300 Broadway, 10th Floor
Denver, CO 80203
Telephone: (720) 508-6610
FAX: (720) 508-6032
E-Mail: james.quinn@state.co.us
Registration Number: 46394
*Counsel of Record
REPLY BRIEF

DATE FILED: September 23, 2014 4:53 PM
FILING ID: EEF84FA1BC375
CASE NUMBER: 2013SA336


Respondents-Appellants Rick Raemisch and Lou Archuletta,
through the Colorado Attorney General, respectfully submit the
following Reply Brief.
TABLE OF CONTENTS

PAGE
i

CERTIFICATE OF COMPLIANCE .......................................................... 1
ARGUMENT ............................................................................................. 1
I. Ankeneys arguments regarding the law of the case are both
factually and legally erroneous. ....................................................... 1
II. The Court of Appeals and district court erroneously
concluded that good time should be credited toward an
inmates mandatory release date. .................................................... 2
III. Inmates have no right to earned time credit, and the CDOC
properly applied all earned time credit toward the
calculations of Ankeneys sentence. ............................................... 18
CONCLUSION ........................................................................................ 20
TABLE OF AUTHORITIES

PAGE
ii

CASES
Ankeney v. Raemisch, et al., Colo. Ct. of App. No. 12CA1930 (Aug.
22, 2013)(unpublished) ....................................................... 10, 11, 13, 20
Badger v. Suthers, 985 P.2d 1042 (Colo. 1999) .................................. 9, 12
City of Pueblo v. Shutt Inv. Co., 28 Colo. 524, 67 P. 162 (1901) .............. 2
Giampapa v. Am. Family Mut. Ins. Co.,64 P.3d 230 (Colo. 2003) ........... 2
Hughes v. Jones, 3 P.2d 1074 (1931) ...................................................... 18
Linker v. Linker, 470 P.2d 882 (1970) .................................................... 18
Mercer v. Theriot, 377 U.S. 152 (1964) ..................................................... 2
Meyers v. Price, 842 P.2d 229 (Colo. 1992) ............................................. 20
Pearson v. Dist. Court, 924 P.2d 512 (Colo. 1996) .................................... 1
People v. McCreadie, 938 P.2d 528 (Colo. 1997) ....................................... 3
People v. Norton, 63 P.3d 339 (Colo. 2003) ............................................... 8
Rather v. Suthers, 973 P.2d 1264 (Colo. 1999), cert denied, 528
U.S. 834 (1999) ....................................................................................... 3
Renneke v. Kautzky, 782 P.2d 343 (Colo. 1989) ..................................... 20
Thiret v. Kautzky, 792 P.2d 801 (Colo. 1990) ................................. passim
Verrier v. Colo. Dept of Corr., 77 P.3d 875 (Colo. App. 2003) ............... 20
STATUTES
16-11-310 (repealed 1988) ................................................................ 8, 11
16-11-310, 8A C.R.S. (1986) (repealed 1988) ......................................... 9
17-22.5-101, 6 C.R.S. (1998) ................................................................... 9
17-22.5-302, C.R.S. (2013) 19
17-22.5-302(1.5), C.R.S. (2013) 18,19
TABLE OF AUTHORITIES

PAGE
iii

17-22.5-302(4), 6 C.R.S. (2013).20
17-22.5-303(2), 6 C.R.S. (1998) ............................................................... 9
17-22.5-303(6), 6 C.R.S. (1998) ............................................................... 9
17-22.5-403(1), C.R.S. (2013) .............................................................. 3, 4
17-22.5-405, C.R.S. (2013) ...................................................................... 4
18-1-105(1)(a)(V), 6 C.R.S. (1998) .................................................... 8, 12
RULES
C.A.R. 28 .................................................................................................... 1
C.A.R. 28(g) ................................................................................................ 1
C.A.R. 28(k) ............................................................................................... 1
C.A.R. 32 .................................................................................................... 1



CERTIFICATE OF COMPLIANCE
I hereby certify that this brief complies with all requirements of
C.A.R. 28 and C.A.R. 32, including all formatting requirements set forth
in these rules. Specifically, undersigned counsel certifies that:
The brief complies with C.A.R. 28(g). It contains 4,005 words,
excluding the caption, table of contents, table of authorities, certificate
of compliance, certificate of service, and signature block.

s/ James X. Quinn
James X. Quinn


ARGUMENT
I. Ankeneys arguments regarding the law of the
case are both factually and legally erroneous.
The district court initially granted Respondents motion to dismiss
Ankeneys claim for habeas corpus relief and permitted Ankeney to
proceed on his mandamus claim. Later the district court dismissed
Ankeneys mandamus claim. Ankeney appealed the district courts
order to the Colorado Court of Appeals.
The Court of Appeals addressed the question of whether
Ankeneys complaint set forth a claim upon which mandamus relief
could be granted. The Court of Appeals did not, and could not, address
the district courts denial of habeas relief and specifically ordered the
district court to address the merits of the habeas claim on remand.
After remand, Ankeney filed an Amended Petition. On remand,
the district court specifically granted habeas relief. Courts considering
whether or not to review one of their own cases are reminded that the
law of the case doctrine neither requires nor encourages courts to
support erroneous judgments. Pearson v. Dist. Court, 924 P.2d 512, 515
(Colo. 1996); Giampapa v. Am. Family Mut. Ins. Co.,64 P.3d 230,

2

243(Colo. 2003). Moreover, a decision of an intermediate appellate
court in a prior appeal remains subject to review by a higher court even
after retrial and a second round of appellate proceedings in the same
case. See Mercer v. Theriot, 377 U.S. 152, 153-54 (1964); City of Pueblo
v. Shutt Inv. Co., 28 Colo. 524, 530, 67 P. 162, 164 (1901); Giampapa v.
Am. Family Mut. Ins. Co.,64 P.3d 230, 243 (Colo. 2003). Accordingly,
this Court may reach the substantive issues arising from the Court of
Appeals prior decision.
II. The Court of Appeals and district court
erroneously concluded that good time should be
credited toward an inmates mandatory release
date.
The Court of Appeals and district courts construction of Colorado
law regarding the proper application of time credit is flawed. As noted,
in Colorado there are two types of time credit that may be awarded to
inmates: good time credit and earned time credit. Good time credits are
awarded for good conduct in prisons, such as obeying rules; earned time
credits may be awarded for substantial progress in rehabilitation or
work programs. Rather v. Suthers, 973 P.2d 1264, 1266 (Colo. 1999),

3

cert denied, 528 U.S. 834 (1999); People v. McCreadie, 938 P.2d 528, 531
n.6 (Colo. 1997). For inmates serving sentences for crimes committed
after July 1, 1985, both types of credit are utilized to determine the date
that inmate become eligible for release to parole at the discretion of the
Parole Board; however, good time is not applied to determine when
inmates reach their mandatory release dates, the dates that they are
entitled to release from incarceration.
Ankeney correctly states that the only issue before this Court is
whether statutory good time applies to the determination of a Parole
Eligibility Date, or the date an offender is released from incarceration to
begin serving a mandatory period of parole. Ankeney argues that good
time applies to the release date, and that all offenders are entitled to
release from incarceration after serving fifty percent of the sentence
imposed by the sentencing court. Thus, under Ankeneys construction,
Ankeney is only required to serve a maximum of four years of
incarceration on an eight year sentence before released to serve a
mandatory period of parole.

4

Initially, it is important to note that Ankeneys analysis is in
direct contravention of C.R.S. 17-22.5-403(1) which states that any
person sentenced for a class 2 through class 6 felony, or any unclassified
felony, shall be eligible for parole after such person has served fifty
percent of the sentence imposed upon such person, less any time
authorized for earned time granted pursuant to section 17-22.5-405.
C.R.S. 17-22.5-403(1) (emphasis added).
Ankeney asserts in his Answer Brief that because the Court of
Appeals did so, there is a need for a journey through the maze of prior
statutes and cases. However, this Court already ventured on that
journey, explaining the various parole schemes and the impact on time
computation in Thiret v. Kautzky, 792 P.2d 801, 804-805 (Colo. 1990).
As clearly explained in that case, the handling of sentences to
incarceration and parole has undergone several major shifts since 1979,
due to statutory enactments by the General Assembly, which have
impacted the manner in which good time credits and earned time
credits are applied to an inmates sentence. Id.

5

As noted in Thiret, prior to 1979, prisoners received indeterminate
sentences, and release to parole was entirely at the discretion of the
Parole Board. Id. at 804. Under this system, good time credits merely
determined the date on which the inmate became eligible to be
considered for release to parole, at the discretion of the Parole Board.
Id. In 1979, the legislature adopted new determinate sentencing laws,
that departed from the previous discretionary parole system, and, in
effect, adopted a system of mandatory parole. Id. The effect of this
legislation was to remove discretion from the Parole Board over the
decision to release a prisoner to parole, and to tie release to parole to
the accumulation of time served, earned time credits, and good time
credits. Id. Under this mandatory parole scheme, both good time and
earned time applied to the offenders release date. Then, in 1985, the
General Assembly again enacted legislation affecting parole. The 1985
legislation once again granted the Parole Board discretion to grant or
deny parole prior to the expiration of a prisoners sentence. Id. at 805.
As a result, for prisoners serving sentences for crimes committed after
July 1, 1985, good time credit only applies to determine the date upon

6

which they become eligible for release to parole, at the Parole Boards
discretion. Id.
This Court in Thiret specifically identified these various parole
schemes and the application of good time applicable to each.
Thus, in Colorado, with respect to the statutory
scheme governing parole, we have three general
classes of persons now serving sentences in our
prisons:
1. Those serving sentences for crimes committed
prior to July 1, 1979.
2. Those serving sentences for crimes committed
on or after July 1, 1979 but before July 1, 1985.
3. Those serving sentences for crimes committed
on or after July 1, 1985.
Upon accruing sufficient credits to become
eligible for parole, persons fitting under the
first and third categories may be granted or
denied parole at the discretion of the Parole
Board. Good time and earned time credits
earned by an inmate towards his release, for
persons coming under these categories,
merely establish the date of parole
eligibility. A person fitting under the second
category, however, must be paroled upon
reaching the parole date as determined by
deducting vested good time and earned time
credits from the persons sentence.

7

Id. at 805 (emphasis added). Accordingly, prisoners like Ankeney who
are serving sentences for crimes committed after July 1, 1985, (the third
category) are only entitled to have good time credit applied toward their
parole eligibility dates.
The Court of Appeals and district court simply misread Thiret. In
Thiret, this Court utilized descriptive labels regarding the differing
parole schemes, including what it referred to as discretionary parole
and mandatory parole. Id. at 804-805. However, Colorados current
parole scheme is not a mandatory parole scheme as it existed between
1979 and 1985. Rather, Colorado currently has a discretionary parole
system, which is followed by a statutorily prescribed mandatory period
of parole after an offender discharges the incarceration portion of a
sentence. Specifically, after this Court issued its decision in Thiret,
statutory sentencing laws were amended in 1993. The General
Assembly created a new sentencing scheme, such that for most felony
offenses (Felony 2 through Felony 6), there is both an incarceration
period as well as a pre-determined period of mandatory parole that also
applies to those felony sentences. See People v. Norton, 63 P.3d 339,

8

343 (Colo. 2003). The 1993 changes to the law continue to afford the
Parole Board the discretion to release inmates to parole prior to
completing the entire term of the incarceration portions of their
sentences, which is consistent with the 1985 amendments returning
discretion over release to parole prior to completion of the incarceration
portion of the sentence to the Parole Board; however, the length of term
of parole to be served is set by statute and correlated to the level of
felony. Id. This was not a return to the mandatory parole system
discussed in Thiret (which was the parole system applicable to prisoners
serving sentences for crimes committed between July 1, 1979, and July
1, 1985), because under that parole scheme, the Parole Board had no
discretion regarding the date on which an inmate was released to
parole. Thiret, 792 P.2d at 804.
Indeed, this Court expressly noted that [i]t is important to
distinguish between mandatory parole as used in the sense that an
offender must be released or placed on parole upon expiration of a
sentence less good time and earned time deductions, see C.R.S. 16-11-
310 (repealed 1988); Thiret v. Kautzky, 792 P.2d 801, 804 & n.6, 805

9

(Colo. 1990); and mandatory period of parole meaning a period of
parole that an offender must serve following his or her discharge from
imprisonment, see C.R.S. 18-1-105(1)(a)(V), 6 C.R.S. (1998). Badger v.
Suthers, 985 P.2d 1042, 1043 (Colo. 1999).
1


1
Badger is instructive. Badger was convicted of the crime of second-
degree murder and the crime of escape. On December 17, 1986, the
district court sentenced Badger on the escape conviction to nine years in
the custody of the DOC, plus a mandatory period of parole. The
following day, the district court sentenced Badger on the murder
conviction to twenty-three years, to be served consecutively to his
escape sentence. Accordingly, the DOC calculated a continuous
sentence for Badger of thirty-two years pursuant to 17-22.5-101, 6
C.R.S. (1998). (When any inmate has been committed under several
convictions with separate sentences, the department shall construe all
sentences as one continuous sentence.). Because Badger committed
the escape after July 1, 1985, his escape sentence was governed by the
discretionary parole provisions of section 17-22.5-303(6), 6 C.R.S.
(1998). Because Badger committed the murder between July 1, 1981
and July 1, 1984, his murder sentence is governed by the mandatory
parole provisions of section 17-22.5-303(2), 6 C.R.S. (1998) and section
16-11-310, 8A C.R.S. (1986) (repealed 1988). Badger argued that his
continuous sentence of thirty-two years should be governed by the
parole provisions applicable to his murder sentence, since it is the
longer of the two sentences that make up his continuous sentence.
Because Badger was entitled to mandatory parole under his murder
sentence, he reasoned that he was entitled to mandatory parole for his
one continuous sentence after he served 50% of his continuous sentence
or after he has served sixteen years (applying both good time and
earned time to discharge date). The DOC argued that Badger was not
entitled to mandatory parole until he served 100% of that portion of his
sentence that is subject to discretionary parole (the escape portion of his

10

In summary, the division of the court of appeals, and the district
court on remand, was mistaken in its analysis of the applicable statutes
and case law regarding the application of good time and earned time
credits toward an inmates mandatory release date. In the Ankeney
decision, the Court of Appeals interpreted the decision in Thiret v.
Kautzky so as to mean that the application of good time credits is
determined by whether an inmate is serving a sentence subject to a
discretionary parole scheme or a mandatory parole scheme. Ankeney,
at 6-7. The Court of Appeals collapsed the three categories of prisoners
that this Court identified in Thiret into these two categories, apparently
characterizing the first and third categories identified in Thiret
(prisoners serving sentences for crimes committed before July 1, 1979
and after July 1, 1985) as being discretionary parole schemes, and

sentence) plus 50% of that portion of his sentence that is subject to
mandatory parole (the murder portion of his sentence). Thus, according
to the calculation of the DOC, Badger was not entitled to mandatory
parole until he has served nine years plus eleven and a half years, for a
total of twenty and a half years. This Court agreed with the DOC,
expressly recognizing that Badger was not entitled to mandatory parole
until he has served all of his escape sentence (nine years) plus half of
his murder sentence (eleven and a half years), for a total of twenty and
a half years, although he could be released on discretionary parole
before that date.

11

characterizing the second category identified in Thiret (prisoners
serving sentences for crimes committed between July 1, 1979 and July
1, 1985) as being a mandatory parole scheme. Id. The Court of
Appeals then concluded that prisoners sentenced after the 1993
statutory amendments, who receive both an incarceration portion of
their sentence and a period of mandatory parole, fall within a
mandatory parole scheme. Id. at 8. This analysis is flawed. The
Court of Appeals replaced the Colorado Supreme Courts use of the
terms first category, second category, and third category with the
terms discretionary parole scheme and mandatory parole scheme
and erroneously determined that the 1993 amendments reinstituted
mandatory parole, and determined that for this reason, good time
credit must be applied toward an inmates release date, under the
holding in Thiret. However, the 1993 amendments did not reinstate
the mandatory parole scheme discussed in Thiret that applies to
prisoners sentenced between July 1, 1979, and July 1, 1985. As
explained above, the 1993 amendments maintained the post 1985
discretionary parole system. The 1993 amendments instituted a

12

statutorily prescribed mandatory period of parole after an offender
discharges the incarceration portion of a sentence. As this Court noted
in Badger, [i]t is important to distinguish between mandatory parole
as used in the sense that an offender must be released or placed on
parole upon expiration of a sentence less good time and earned time
deductions, see C.R.S. 16-11-310 (repealed 1988); Thiret v. Kautzky,
792 P.2d 801, 804 & n.6, 805 (Colo. 1990); and mandatory period of
parole meaning a period of parole that an offender must serve following
his or her discharge from imprisonment, see 18-1-105(1)(a)(V), 6
C.R.S. (1998). Badger v. Suthers, 985 P.2d at 1043 n. 1. In reaching
its decision in Ankeney, the Court of Appeals and district court failed to
make this distinction, and characterized the 1993 amendments as
reinstating the prior mandatory parole scheme, which they did not.
The 1993 amendments continue to afford the Parole Board the
discretion to determine whether an inmate should be released to parole
prior to serving the full term of incarceration. Because prisoners
remain eligible for release to parole at the discretion of the Parole
Board, prior to the natural expirations of the incarceration portions of

13

their sentences, it makes sense to apply good time credits only toward
ones Parole Eligibility Date, but not the Mandatory Release Date, so as
to allow there to be distinction between the two.
Therefore, the Respondent Appellants respectfully submit that the
division that decided the unpublished Ankeney decision misread and
misapplied this Courts decision in Thiret, and was mistaken in its
determination as to the application of good time credits. Moreover,
after the Ankeney decision was released, multiple offenders citing the
unpublished Ankeney decision, have filed similar habeas corpus
petitions. Every district court receiving the post Ankeney filings has
expressly refused to follow the flawed analysis in the unpublished
Ankeney decision. (See Exhibit A, Order in Wallin v. Raemisch,
Crowley District Court case no. 14cv2; Exhibit B, Order in Cowand v.
Raemisch, Fremont District Court case no. 14cv10; Exhibit C, Order in
Sumpter v. Raemisch, Fremont District Court case no. 14cv8; Exhibit
D, Order in Dixon v. Archuleta, Fremont District Court case no. 14cv43;
Exhibit E, Order in Crawford v. Archuleta, Fremont District Court
case no. 14cv36; Exhibit F, Order in Lovato v. Clements, Fremont

14

District Court case no. 14cv23; Exhibit G, Wu v. Executive Director,
Fremont District Court case no. 14cv24; Exhibit H, Brackeen v.
Raemisch, Fremont District Court case no. 14cv73; Exhibit I, Order in
Aragon v. Raemisch, Freemont District Court case no. 14cv66; Exhibit
J, Order in Vondette v Archuleta Fremont District Court case no.
14cv47; Exhibit K, Order in Sines v Raemisch Et Al, Fremont District
Court case no. 14cv15; Exhibit L, Langstaff v. Archuletta , Fremont
District Court case no. 14cv27; Exhibit M, Yeiser v. Raemisch, Fremont
District Court case no. 14cv78, Exhibit N, Garcia v. Carlson Et Al,
Fremont District Court case no. 14cv81; Exhibit O, People of the State
of Colorado v. Ackerman, Fremont District Court case no. 14cv87;
Exhibit P, Young v. Raemisch Et Al, Fremont District Court case no.
14cv90; Exhibit Q, Sharon v. Raemisch Et Al, Fremont District Court
case no. 14cv94; Exhibit R, Luark v. Colorado Department of
Corrections Time Computation Division, Fremont District Court case
no. 14cv41; Exhibit S, Romary v. Mary Carlson Et Al, Fremont District
Court case no. 14cv89; Exhibit T, Candelaria v. Raemisch Et Al,
Fremont District Court case no. 14cv97; Exhibit U, Moreno v.

15

Raemisch Et Al, Fremont District Court case no. 14cv101; Exhibit V,
Varney v. Carlson Et Al, Fremont District Court case no. 14cv99;
Exhibit W, Garcia v. Raemisch Et Al, Fremont District Court case no.
14cv100; Exhibit X, Smith v. Raemisch Et Al, Fremont District Court
case no. 14cv111; Exhibit Y, Montoya v. Carlson Et Al, Fremont
District Court case no. 14cv110; Exhibit Z, Mathews v. Raemisch Et Al,
Fremont District Court case no. 14cv109; Exhibit Aa, The People of the
State of Colorado v. Robert E. Charlton, Adams County Court case no.
8CR2833; Exhibit Ab, Cline v. Carlson Et Al, Fremont District Court
case no. 14cv84; Exhibit Ac, Harvey v. Raemisch Et Al, Bent County
District Court case no. 14cv10; Exhibit Ad, Walker v. Ploughe,
Fremont District Court case no. 14cv115; Exhibit Ae, Dougherty v.
Raemisch, Fremont District Court case no. 14cv116; Exhibit Af,
Marquez v. Raemisch, Fremont District Court case no. 14cv113;
Exhibit Ag, Harrison v. Raemisch, Fremont District Court case no.
14cv118; Exhibit Ah, Major v. Raemisch, Fremont District Court case
no. 14cv123; Exhibit Ai, Chavez v. Raemisch et al, Fremont District
Court case no. 14cv126; Exhibit Aj, Faust v. Raemisch et al, Fremont

16

District Court case no. 14cv127; Exhibit Ak, Baca v. Raemisch et al,
Fremont District Court case no. 14cv124; Exhibit Al, Macsween v.
Raemisch et al, Fremont District Court case no. 14cv125; Exhibit Am,
Dudley v. Raemisch et al, Lincoln County District Court case no. 14cv7;
Exhibit An, Westley v. Raemisch et al, Fremont District Court case no.
14cv119; Exhibit Ao, Johnson v. Mary Carlson et al, Fremont District
Court case no. 14cv129; Exhibit Ap, Burritt v. Rick Raemisch et al, El
Paso County Court case no. 14cv192; Exhibit Aq, Taylor v. Rick
Raemisch et al, Bent County Court case no. 14cv16; Exhibit Ar, Wilson
v. Rick Raemisch et al, Bent County Court case no. 14cv14; Exhibit As,
Reiger v. Rick Raemisch et al, Fremont County Court case no. 14cv131;
Exhibit At, Proctor v. Rick Raemisch et al, Fremont County Court case
no. 14cv134; Exhibit Au, Bebb-Jones v. CDOC Time Computation
Division, Fremont County Court case no. 14cv52; Exhibit Av, Matthew
Mcklusky v. CDOC Time Computation Division, Fremont County Court
case no. 14cv58; Exhibit As, Shelly v. Rick Raemisch et al, Fremont
County Court case no. 14cv20; Exhibit Ax, Manigo v. Rick Raemisch et
al, Fremont County Court case no. 14cv135; Exhibit Ay, Trujillo v.

17

Goodrich et al, Bent County District Court case no. 14cv4; Exhibit Az,
Hardy v. CDOC Time Computation Division, Fremont County Court
case no. 14cv42; Exhibit Ba, Chaparro v. CDOC Time Computation
Division, Fremont County Court case no. 14cv57; Exhibit Bb, Barella
v. CDOC Time Computation Division, Fremont County Court case no.
14cv50; Exhibit Bc, Douglas v. CDOC Time Computation Division,
Fremont County Court case no. 14cv59; Exhibit Bd, Rodriguez v.
CDOC Time Computation Division, Fremont County Court case no.
14cv53; Exhibit Be, Dutton v. CDOC Time Computation Division,
Fremont County Court case no. 14cv54; Exhibit Bf, Gingles v. CDOC
Time Computation Division, Fremont County Court case no. 14cv56;
Exhibit Bg, Amez Cua-Ruiz v. CDOC Time Computation Division,
Fremont County Court case no. 14cv49; Exhibit Bh, Dowd v. Pam
Plugh, Warden CMC Facilities, Fremont County Court case no.
14cv139; Exhibit Bi, Wilson v. Rick Raemisch, Bent County Court case
no. 14cv14; Exhibit Bj, Cuddie v. CDOC Time Computation Division,
Fremont County Court case no. 14cv55.).
2


2
This Court can take judicial notice of all of these cases. See Hughes v.

18

III. Inmates have no right to earned time credit, and
the CDOC properly applied all earned time
credit toward the calculations of Ankeneys
sentence.
As indicated, the issue before the Court is the proper application
of good time credit toward the calculation of Ankeneys sentence.
Nevertheless, Ankeney asserts in the Answer Brief that he had an
entitlement to certain types of earned time credit, namely, educational
earned time credits, and that such credits were not applied toward the
calculation of his Parole Eligibility Date and his Mandatory Release
Date. Inmates who are awarded earned time for participation in
education programs outlined under C.R.S. 17-22.5-302(1.5) shall
receive earned time pursuant to section 17-22.5-405. C.R.S. 17-
22.5-302(1.5)(a) (emphasis added). For the purposes of clarification, as
explained in the Affidavit of Mary Carlson, all earned time credit that
Ankeney was actually awarded by the CDOC pursuant to 17-22.5-
405 was applied toward the calculation of both his Parole Eligibility

Jones, 3 P.2d 1074, 1076 (1931); Linker v. Linker, 470 P.2d 882, 887
(1970). See also, Vento v. Colorado Nat. Bank, 985 P.2d 48 (Colo. App.
1999) rehearing denied, and certiorari denied. (A court may take
judicial notice of the contents of court records in a related proceeding).

19

Date and Mandatory Release Date, as it was earned by Ankeney. See
Affidavit of Mary Carlson, Exhibit B, Motion to Dismiss, paras. 8, 10,
CD Record, pp. 55-57. As earned time credit received for the conduct
outlined in C.R.S. 17-22.5-302(1.5) is awarded pursuant to section 17-
22.5-405, there is nothing in the record showing that the CDOC did not
apply educational earned time credits to Ankeneys sentence pursuant
to C.R.S. 17-22.5-302(1.5) any such earned time would ultimately be
awarded to Ankeney pursuant to section 17-22.5-405, which is exactly
the way that Ms. Carlson described it in her Affidavit.
Alternatively, to the extent that Ankeney contends he had a right
to educational earned time credit pursuant to C.R.S. 17-22.5-302,
and also that the CDOC should assume prospectively that he would be
awarded educational earned time credits in calculating his sentence,
this is not the case. Inmates have no right to receive earned time
credits of any type and the CDOC has no obligation to assume that an
inmate will receive earned time credits when calculating his sentence.
See C.R.S. 17-22.5-405 (for each inmate sentenced to the custody of
the department, or for each parolee, the department shall review the

20

performance record of the inmate or parolee and may grant, withhold,
withdraw, or restore, consistent with the provisions of this section, an
earned time deduction from the sentence imposed. . .); Meyers v. Price,
842 P.2d 229, 231 (Colo. 1992). Inmates have no clear right to receive
earned time credits, and the CDOC has no duty to provide such credits.
Verrier v. Colo. Dept of Corr., 77 P.3d 875, 878 (Colo. App. 2003). For
inmates convicted of offenses after July 1, 1985, not only is earned time
credit awarded at the discretion of the CDOC, even once it is awarded it
may be withdrawn at the discretion of the CDOC. 17-22.5-302(4),
C.R.S.; Renneke v. Kautzky, 782 P.2d 343, 345 (Colo. 1989). To the
extent Ankeney makes assertions to the contrary, he is incorrect.
CONCLUSION
For the reasons set forth in the Opening Brief and above, the
decision of the Colorado Court of Appeals in Ankeney v. Raemisch et al.,
Case No. 12CA1930; and the District Courts decision in 2012CV22,
should be reversed.


21

JOHN W. SUTHERS
Attorney General

/s/ James X. Quinn
JAMES X. QUINN, 21729*
First Assistant Attorney General
Corrections Unit
Civil Litigation and Employment Law
Section
Attorneys for Respondents-
Appellants*Counsel of Record



CERTIFICATE OF SERVICE

This is to certify that I have duly served the within Opening Brief
upon all parties herein via ICCES on this 23
rd
day of September, 2014,
addressed as follows:

Davis Lane
Danielle Jeffries
1543 Champa Street, 400
Denver, CO 80202

Marc B. Tull, Esq.
P.O. Box 1935
Elisabeth, CO 80107
MarcBTull@gmail.com



/s/ Mariah Cruz-Nanio