Russell v. Otero County Court et al
ORDER of Dismissal. ORDERED that the document titled Petition for Writ of Habeas Corpus With Motion to Stay Proceedings 1 is denied and the action dismissed without prejudice. FURTHER ORDERED that, to the extent Mr. Russell seeks relief agains t the states of Alaska and Arizona, the Court is without jurisdiction to grant his requests. FURTHER ORDERED that Motion for Order of Stay of State Proceedings Otero County Case No. 12 T 515 3 is denied as moot. FURTHER ORDERED that leave to proceed in forma pauperis on appeal is denied. FURTHER ORDERED that no certificate of appealability will issue, by Judge Lewis T. Babcock on 12/28/12.(sgrim)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 12-cv-03248-BNB
ELMER B. RUSSELL,
OTERO COUNTY COURT, OTERO COUNTY, COLORADO,
DOUGLAS R. MANLEY, Judge,
COLORADO DEPARTMENT OF REVENUE, Driver Control,
COLORADO FAMILY REGISTRY,
STATE OF ALASKA DEPARTMENT OF REVENUE, Child Support Enforcement,
LEORA BILLINGS, Montezuma County Department of Social Services,
ORDER OF DISMISSAL
Petitioner, Elmer B. Russell, is a resident of Goodland, Kansas. Mr. Russell,
acting pro se, filed on December 13, 2012, a document titled “Petition for Writ of
Habeas Corpus With Motion to Stay Proceedings” (ECF No. 1) and a “Motion for Order
of Stay of State Proceedings Otero County Case No. 12 T 515” (ECF No. 3).
Jurisdiction is asserted pursuant to 28 U.S.C. § 2251, although § 2251 only appears
applicable to the motion for stay.
Mr. Russell has failed either to pay the $5.00 filing fee for a habeas corpus action
or to submit a Prisoner’s Motion and Affidavit for Leave to Proceed Pursuant to 28
U.S.C. § 1915 in a Habeas Corpus Action. However, he will not be directed to cure this
deficiency because, for the reasons stated below, the action will be dismissed.
In the petition, Mr. Russell alleges he is charged in Case No. 12 T 515 in county
court in Otero County, Colorado, with driving while his Colorado driving privilege was
suspended and driving without a seat belt. He asks this Court to order the Otero
County Court to dismiss the charges and order the State of Colorado to reimburse the
$95.00 he paid to reinstate his driving privilege. To the extent Mr. Russell seeks relief
against the states of Alaska and Arizona, the Court is without jurisdiction to grant his
The Court must construe Mr. Russell’s filings liberally because he 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.
Mr. Russell is subject to untried criminal 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
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). In determining whether Younger is
appropriate, a court considers 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. Russell is involved in a
state criminal proceeding that is ongoing, as evidenced by his pending criminal case in
Otero County Court. Second, Mr. Russell has not demonstrated that the state court is
not an adequate forum to hear his constitutional challenges. Third, there are important
state interests in allowing the Colorado state court to resolve the issues brought by Mr.
Further, no exceptions to Younger exist in this case. Mr. Russell’s challenge to
the state charges for driving while his Colorado driving privilege was suspended and
driving without a seat belt does 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. Russell 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. Russell’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 $455.00 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 document titled “Petition for Writ of Habeas Corpus With
Motion to Stay Proceedings” (ECF No. 1) that Petitioner, Elmer B. Russell, filed pro se
on December 13, 2012, is denied and the action dismissed without prejudice pursuant
to the abstention doctrine of Younger v. Harris, 401 U.S. 37 (1971). It is
FURTHER ORDERED that, to the extent Mr. Russell seeks relief against the
states of Alaska and Arizona, the Court is without jurisdiction to grant his requests. It is
FURTHER ORDERED that “Motion for Order of Stay of State Proceedings Otero
County Case No. 12 T 515” (ECF No. 3) is denied as moot. It is
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
Petitioner has not made a substantial showing of the denial of a constitutional right.
DATED at Denver, Colorado, this
28th day of
BY THE COURT:
s/Lewis T. Babcock
LEWIS T. BABCOCK, Senior Judge
United States District Court
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