Prisoner Wins Mandamus Case to Compel Colorado DOC to Consider Transfer Application

by Derek Gilna

Colorado state court prisoner Robert D. Gandy, proceeding Pro Se, has won his appeal of a lower-court dismissal of his mandamus petition against Colorado Department of Corrections (DOC) officials, who refused to consider his application for transfer. Gandy, a Canadian citizen, had cited the Inter-American Convention on Serving Criminal Sentences Abroad (the convention), which provides that, “it is advisable that the sentenced person be given an opportunity to serve the sentence in the country of which the sentenced person is a national.”

The plaintiff also cited 24-60-2301, C.R.S. 2008, which stated: “If a treaty in effect between the United States a foreign country provides for the transfer or exchange of convicted offenders to the county of which they are citizens or nationals, the governor may ...authorize the ... department   of correction to consent to the transfer ... and ... initiate the participation of the state in the treaty.”

Gandy’s complaint had sought review under C.R.C.P. 106(a)(2) or the Administrative Procedure Act APA), Section 24-4 106, C.R.S. 2008 of the DOC determination not to transfer him to Canada, citing an abuse of discretion and seeking an order directing DOC to exercise its discretion. A previous unpublished opinion of the court had already agreed that DOC officials had failed to comply with their duties in this regard. Gandy v. Colo. Dep’t of Corr., (Colo. App. No. 03CA1065, June 24, 2004) (Gandy I). Gandy alleged in this appeal that the “DOC has an unlawful practice of denying treaty transfers without applying any of the criteria of the regulation,” according to the opinion.

The appeals court agreed with Gandy’s central argument that, “he was not seeking an order directing his transfer, but rather an order directing that DOC consider his request to transfer under the applicable regulations,” as provided for in Rule 106(a)(2).

The court concluded that, “The district court judgment is affirmed insofar as it denied a writ of mandamus directing plaintiff to be transferred, [but] [t]he judgment is vacated to the extent it did not grant relief under Rule 106(a)(2) directing that his transfer request be considered under the applicable regulations, and the case is remanded with the directions stated in this opinion.” See: Gandy v. Colorado Department of Corrections, et al., Case No. 07CA2381, Colorado Court of Appeals (2008).

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