Shepard v. Denver Sheriff's Department, The et al

Filing 10

ORDER of Dismissal. The application is denied and the action is dismissed without prejudice. Leave to proceed in forma pauperis on appeal is denied and no certificate of appealability will issue, by Judge Lewis T. Babcock on 5/29/12. (gmssl, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 12-cv-01152-BNB

KENNETH L. SHEPARD,
Applicant,
v.
THE DENVER SHERIFF’S DEPARTMENT,
UNDERSHERIFF GARY WILSON, and
THE ATTORNEY GENERAL OF THE STATE OF COLORADO,
Respondents.

ORDER OF DISMISSAL

Applicant, Kenneth L. Shepard, is a pretrial detainee and currently is held at the
Downtown Detention Center in Denver, Colorado. Mr. Shepard, acting pro se, has filed
an Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254. In the
Application, Mr. Shepard asserts two claims, including (1) the police lacked probable
cause to arrest him; and (2) he did not consent to the search of his vehicle. All claims
involve Mr. Shepard’s ongoing state criminal proceeding in Case No. 12CR00418. Mr.
Shepard seeks dismissal of the charges against him and release from detention.
The Court must construe the Application liberally because Mr. Shepard is a pro
se litigant. 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 act as a pro se
litigant’s advocate. See Hall, 935 F.2d at 1110. For the reasons stated below, the
action will be dismissed.

Mr. Shepard is a pretrial detainee and is subject to untried charges. Absent
extraordinary or special circumstances, federal courts are prohibited from interfering
with ongoing state criminal proceedings. See Younger v. Harris, 401 U.S. 37, 45
(1971); Phelps v. Hamilton, 59 F.3d 1058, 1063-64 (10th Cir. 1995). To establish
extraordinary or special circumstances, a party must be facing an irreparable injury that
is both great and immediate. See Younger, 401 U.S. at 46. The exceptions to Younger
provide only for a "very narrow gate for federal intervention." Phelps, 59 F.3d at 1064
(internal quotation marks omitted).
The Supreme Court has established three factors that are relevant to determine
whether abstention is required under Younger, see Chapman v. Oklahoma, 472 F.3d
747, 749 (10th Cir. 2006) (citations omitted), including whether:
(1) there is an ongoing state criminal, civil, or administrative
proceeding, (2) the state court provides an adequate forum
to hear the federal complaint, and (3) the state proceedings
involve important state interests, matters which traditionally
look to state law for their resolution or implicate separately
articulated state policies.
Crown Point I, LLC v. Intermountain Rural Elec. Ass’n, 319 F.3d 1211, 1215 (10th Cir.
2003) (citation and quotation marks omitted). “Once these three conditions are met,
Younger abstention is non-discretionary and, absent extraordinary circumstances, a
district court is required to abstain.” Id. (citation omitted).
In the instant action, all three conditions are met. Mr. Shepard is involved in a
state criminal proceeding that is ongoing, as evidenced by his pending criminal trial in
the Denver County District Court. Second, Mr. Shepard has not demonstrated that the
state court is not an adequate forum to hear his constitutional challenges. Third, there
2

are important state interests in allowing the Colorado state court to resolve the issues
brought by Mr. Shepard.
Further, no exceptions to Younger exist in this case. Mr. Shepard’s challenge of
his arrest and the search of his vehicle do not demonstrate he will suffer great and
immediate irreparable injury if this Court fails to intervene in the ongoing, state-court,
criminal proceedings. See Younger, 401 U.S. at 46; Dolack v. Allenbrand, 548 F.2d
891, 894 (10th Cir. 1977). Because Mr. Shepard fails to assert an exception to
Younger, the Court should abstain from exercising jurisdiction. See, e.g., D.L. v. Unified
Sch. Dist. No. 497, 392 F.3d 1223, 1228 (10th Cir. 2004).
Moreover, if Mr. Shepard’s sentence and conviction are ultimately upheld in state
court, and he believes that his federal constitutional rights were violated, he may pursue
his claims in this Court by filing an application for a writ of habeas corpus pursuant to 28
U.S.C. § 2254 after he exhausts state court remedies.
Finally, the Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal
from this order would not be taken in good faith and therefore in forma pauperis status
will be denied for the purpose of appeal. See Coppedge v. United States, 369 U.S. 438
(1962). If Applicant files a notice of appeal he must also pay the full $455 appellate
filing fee or file a motion to proceed in forma pauperis in the United States Court of
Appeals for the Tenth Circuit within thirty days in accordance with Fed. R. App. P. 24.
Accordingly, it is
ORDERED that the Application is denied and the action dismissed without
prejudice pursuant to the abstention doctrine of Younger v. Harris, 401 U.S. 37 (1971).
It is
3

FURTHER ORDERED that leave to proceed in forma pauperis on appeal is
denied. 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

29th

day of

May

, 2012.

BY THE COURT:

s/Lewis T. Babcock
LEWIS T. BABCOCK, Senior Judge
United States District Court

4