Glaser v. Wilson

Filing 20

ORDER of Dismissal. The 1 Application is denied and the action is dismissed without prejudice. No certificate of appealability will issue, by Judge R. Brooke Jackson on 11/1/11. (lsw, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 11-cv-01614-RBJ
DOUGLAS A. GLASER,
Applicant,
v.
GARY WILSON,
Respondent.

ORDER OF DISMISSAL

Applicant, Douglas A. Glaser, is an inmate at the Denver County Jail in Denver,
Colorado. Mr. Glaser has filed pro se an application for a writ of habeas corpus
pursuant to 28 U.S.C. § 2241 seeking dismissal of the criminal charges pending against
him in the District Court for the City and County of Denver and his release from custody.
The Court must construe the application liberally because Mr. Glaser is not represented
by an attorney. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972); Hall v. Bellmon,
935 F.2d 1106, 1110 (10th Cir. 1991). However, the Court should not be an advocate
for a pro se litigant. See Hall, 935 F.2d at 1110. For the reasons stated below, the
application will be denied and the action will be dismissed.
I. Background and State Court Proceedings
Mr. Glaser originally was arrested on February 14, 2005, and “the procedural
history of [his criminal] case is extraordinarily ‘tortured and star-crossed.’” People v.
Glaser, 250 P.3d 632, 635 (Colo. 2010). This procedural history includes, “[a]mong
other things, eight rescheduled trial dates, two mistrials, three replacements of defense

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counsel (including one because of a suicide and another because of a mental
breakdown mid-trial), one interlocutory appeal by the prosecution, and two petitions to
the supreme court by defendant.” Id. On January 21, 2010, after the trial court
dismissed the charges against Mr. Glaser on state and federal constitutional speedy
trial grounds, the Colorado Court of Appeals reversed that order and remanded the
case with directions to reinstate the charges. See Glaser, 250 P.3d at 632. On
November 15, 2010, the Colorado Supreme Court denied Mr. Glaser’s petition for
certiorari review. The mandate issued on December 22, 2010.
On January 11, 2011, the trial court granted the prosecutor’s motion for an arrest
warrant for Mr. Glaser. See Answer at 12. Mr. Glaser was arrested on April 2, 2011, in
Atlanta, Georgia, and appeared in custody in Denver District Court on April 25, 2011.
Id. Mr. Glaser’s trifurcated criminal case is currently set for jury trial on a possession of
weapon by previous offender charge on November 1, 2011, jury trial on securities fraud
charges on January 3, 2012, and jury trial on criminal impersonation charges on
January 10, 2012. Id. at 13.
Mr. Glaser filed an Application for a Writ of Habeas Corpus Pursuant to 28
U.S.C. § 2241 in this Court on June 20, 2011. In the Application, he asserts the
following claims:
1.

His pending criminal case must be dismissed for violations of speedy trial
under the Colorado state and federal constitutions, as well as the
Colorado state statute;

2.

Double jeopardy bars prosecution of certain charges against him, based
on the joinder statute and a Douglas County plea agreement;

3.

Government officials falsified evidence and committed perjury in order to
obtain search warrants and procure a grand jury indictment;

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4.

His previous incarceration was based on an unconstitutional condition of
bond and he lost his house due to a spurious government lien, after which
he was unable to retain his private counsel;

5.

Double jeopardy bars his retrial because no manifest necessity existed to
declare a mistrial when the jury deadlocked or when his counsel was
unable to proceed because of his mental condition; and

6.

He is entitled to declaratory relief because the prosecution’s evidence is
insufficient to convict him and there is evidence of personal animus
towards him by government officials.

As relief, Mr. Glaser requests that the Court dismiss all state court criminal
charges in Denver District Court Case No. 2000-CR-3986 and release him from
custody.
On July 18, 2011, the Court directed Respondent to show cause why the
Application should not be granted. Respondent filed an Answer on September 14,
2011. Mr. Glaser filed a Reply on September 21, 2011. In the Answer, Respondent
argues that the Application should be dismissed pursuant to the Younger abstention
doctrine. In the alternative, Respondent argues that Mr. Glaser has failed to exhaust
state court remedies for his claims.
II.

Younger Abstention
Mr. Glaser has previously sought habeas corpus relief in this Court seeking

dismissal of the pending criminal charges. See Glaser v. Wilson, No. 11-cv-01335-LTB
(D. Colo. June 9, 2011); Glaser v. Lovinger, No. 07-cv-00843-LTB-BNB (D. Colo. Mar.
3, 2008). In both of the prior habeas corpus actions, the Court abstained from
exercising jurisdiction in accordance with Younger v. Harris, 401 U.S. 37 (1971), and
dismissed the application without prejudice. For the reasons discussed below, the

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Court finds that Younger abstention again is appropriate and will dismiss this action
without prejudice.
Absent extraordinary or special circumstances, federal courts are prohibited from
interfering with ongoing state criminal proceedings. See Younger, 401 U.S. at 37;
Phelps v. Hamilton, 122 F.3d 885, 889 (10th Cir. 1997). To establish extraordinary or
special circumstances, a defendant must be facing an irreparable injury that is both
great and immediate. See Younger, 401 U.S. at 46. Abstention is appropriate if three
conditions are met: “(1) the state proceedings are ongoing; (2) the state proceedings
implicate important state interests; and (3) the state proceedings afford an adequate
opportunity to present the federal constitutional challenges.” Phelps, 122 F.3d at 889.
In this case, the first condition is met because Mr. Glaser alleges that the
charges remain pending against him in state court. The second condition also is met
because the Supreme Court “has recognized that the States’ interest in administering
their criminal justice systems free from federal interference is one of the most powerful
of the considerations that should influence a court considering equitable types of relief.”
Kelly v. Robinson, 479 U.S. 36, 49 (1986) (citing Younger, 401 U.S. at 44-45). With
respect to the third condition, Mr. Glaser fails to demonstrate that the state proceedings
do not afford an adequate opportunity to present his federal claims. In fact, it is
apparent that Mr. Glaser has taken advantage of the opportunity to present at least his
federal constitutional speedy trial claim in the state court proceedings. See, e.g.,
Glaser, 250 P.3d 632. The fact that Mr. Glaser’s efforts to have the criminal charges
against him dismissed so far have been unsuccessful does not mean that he has not

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had, or does not have, an adequate opportunity to present his federal claims in the state
court proceedings.
Mr. Glaser “may overcome the presumption of abstention ‘in cases of proven
harassment or prosecutions undertaken by state officials in bad faith without hope of
obtaining a valid conviction and perhaps in other extraordinary circumstances where
irreparable injury can be shown.’” Phelps, 122 F.3d at 889 (quoting Perez v. Ledesma,
401 U.S. 82, 85 (1971)). However, the fact that Mr. Glaser will be forced to appear in
state court on criminal charges, by itself, is not sufficient to establish great and
immediate irreparable injury. See Younger, 401 U.S. at 46; Dolack v. Allenbrand, 548
F.2d 891, 894 (10th Cir. 1977).
Courts have considered three factors in determining whether a prosecution is
commenced in bad faith or to harass:
(1) whether it was frivolous or undertaken with no reasonably
objective hope of success; (2) whether it was motivated by
the defendant’s suspect class or in retaliation for the
defendant’s exercise of constitutional rights; and (3) whether
it was conducted in such a way as to constitute harassment
and an abuse of prosecutorial discretion, typically through
the unjustified and oppressive use of multiple prosecutions.
Phelps, 122 F.3d at 889. It is Mr. Glaser’s “‘heavy burden’ to overcome the bar of
Younger abstention by setting forth more than mere allegations of bad faith or
harassment.” Id. at 890.
Mr. Glaser argues “the prosecution has fabricated evidence to obtain search
warrants, utilized that evidence to unconstitutionally deprive Petitioner of his liberty after
posting a $750,000 [bond], committed perjury at the grand jury to indict Petitioner . . . .”
Application at 12. He also asserts that “the government has continually abused the

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judicial system in a way to harass and illegally imprison Petitioner.” Id. at 13. Mr.
Glaser argues that the prosecution obtained illegal search warrants in order to harass
him as follows:
Applicant was the victim of a hit and run traffic accident February 20, 2005.
Responding Denver Police Officer Dalvit responded to the scene. Dalvit states
that Applicant identified himself as Michael Douglas Glaser and presented a U.S.
Passport to this affect [sic]. Applicant produced proof of insurance and vehicle
registration all in Applicant’s name, Douglas Alan Glaser. Applicant was
released from the scene. Dalvit states that he ran a query in the name of
Michael Douglas Glaser and there was no record found, . . . . Dalvit then states
that he ran Applicant’s vehicle license plate and found Douglas A. Glaser, 2720
E. 4th Ave, Denver, CO 80206. This affidavit was utilized to obtain a search
warrant for the alleged fictitious Passport in the name of Michael Douglas Glaser.
Response at 4.
Mr. Glaser argues that a “CBI report” attached to Respondent’s Answer “clearly
shows” that the government did not “conduct a search or query into the name Michael
Douglas Glaser as stated by Officer Dalvit.” Response at 5. Therefore, he concludes
that “[o]fficials involved in this fishing expedition abused their position of trust, and
misled a Denver judge with false statements of fabricated evidence for the purpose of
securing search warrants without probable cause.” Id. at 17. He further argues that
“the government agents have acted with malice and a personal animus against
petitioner to illegally deprive him of his liberty, property, and constitutional rights.”
Application at 15.
The Court has reviewed the Colorado Bureau of Investigation (CBI) report, which
is attached to the Respondent’s Answer at Exhibit Q. The CBI report demonstrates that
Officer Dalvit performed the following name searches on February 20, 2005: Michael
Douglas, Douglas Glaser, Douglas M. Glaser, Michael Glaser, and Douglas A. Glaser.
Answer at Ex. Q, p. 3. Because it appears that Officer Dalvit performed multiple

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combinations of name searches in order to locate Mr. Glaser, the Court finds no factual
support in the record for Mr. Glaser’s argument that the government invented the story
of a fake passport in the name of Michael Douglas Glaser in order to obtain an illegal
search warrant. Likewise, the Court can find no support for Mr. Glaser’s argument that
government officials lied to the grand jury, or that the behavior of the government
officials was malicious.
In the Application, Mr. Glaser presents numerous unsupported accusations,
conclusory allegations and attempts to establish factual discrepancies in the testimony
of witnesses at the grand jury proceeding. The Application appears to be an attempt on
Mr. Glaser’s part to argue his criminal case to this court. However, none of these
allegations establish the special circumstances that would overcome the presumption of
Younger abstention. See Younger, 401 U.S. at 46. Having reviewed the record, the
Court finds that Mr. Glaser has failed to demonstrate any improper motivation for the
criminal charges pending against him. See Phelps, 122 F.3d at 889. Moreover, the
Court can find no indication that the criminal case against Mr. Glaser has been
conducted in such a way as to constitute harassment or an abuse of prosecutorial
discretion. Id. Mr. Glaser has not overcome his “heavy burden” to overcome the bar of
Younger abstention because he has failed to do more than set forth conclusory
“allegations of bad faith [and] harassment.” Id. at 890. Therefore, because none of the
factors set forth by the Tenth Circuit in Phelps are present here, the Court finds that
Younger abstention is appropriate in this action. See id.
In summary, Mr. Glaser does not allege any facts that indicate he will suffer great
and immediate irreparable injury if the Court fails to intervene in the ongoing state court

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criminal proceedings. If Mr. Glaser ultimately is convicted in state court and he believes
that his federal constitutional rights were violated in obtaining that conviction,
he may pursue his claims in federal court by filing an application for a writ of habeas
corpus pursuant to 28 U.S.C. § 2254 after he exhausts state remedies.
III.

Conclusion
Accordingly, it is
ORDERED that the Application is denied and the action is dismissed without

prejudice pursuant to the Younger abstention doctrine. It is
FURTHER ORDERED that no certificate of appealability will issue because
Applicant has not made a substantial showing of the denial of a constitutional right.
DATED at Denver, Colorado, this 1st day of November, 2011.
BY THE COURT:

R. BROOKE JACKSON
United States District Judge

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