Graham v. Beicker

Filing 6

ORDER dismissing this action without prejudice, and denying without prejudice leave to proceed in forma pauperis on appeal, by Judge Lewis T. Babcock on 8/12/14. No certificate of appealability will issue. (dkals, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Civil Action No. 14-cv-02137-BNB
ALBERT M. GRAHAM,
Applicant,
v.
JUDGE DAVID M. THORSON, Div. 1, Fremont County Dist. Court,
Respondent.

ORDER OF DISMISSAL

Applicant, Albert M. Graham, is an inmate at the Fremont County Detention
Center in Cañon City, Colorado. Mr. Graham has filed pro se an Application for a Writ
of Habeas Corpus Pursuant to 28 U.S.C. § 2241 (ECF No. 1) asking the Court to
intervene in his state court criminal case. Mr. Graham specifically claims that his
federal constitutional rights to due process and a speedy trial have been violated. As
relief he asks that the criminal charges be dismissed and that he be released from
custody.
The Court must construe the application liberally because Mr. Graham 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.
A state prisoner subject to untried charges may bring a pretrial habeas corpus

action in federal court pursuant to 28 U.S.C. § 2241 to “demand enforcement of the
[State’s] affirmative constitutional obligation to bring him promptly to trial.” Braden v.
30th Judicial Circuit Court, 410 U.S. 484, 489-90 (1973). In the instant action, Mr.
Graham is not demanding enforcement of his right to be brought to trial promptly.
Instead, he seeks to have this Court intervene in the state court proceedings and enter
an order dismissing the criminal charges against him so that he may be released from
custody. The Court may not do so.
Absent extraordinary or special circumstances, federal courts are prohibited from
interfering with ongoing state criminal proceedings. See Younger v. Harris, 401 U.S. 37
(1971); Phelps v. Hamilton, 122 F.3d 885, 889 (10th Cir. 1997). 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.
The first condition is met because Mr. Graham concedes that the state court
proceedings are ongoing. 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. Graham fails to demonstrate the absence of an adequate opportunity to
present his claims in the state proceedings. In fact, Mr. Graham concedes that he has
raised his claims in the state court proceedings in various motions. The fact that those
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motions have not been successful does not demonstrate Mr. Graham lacks an
adequate opportunity to present his claims.
Mr. Graham “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. Graham 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. Graham’s “‘heavy burden’ to overcome the bar of
Younger abstention by setting forth more than mere allegations of bad faith or
harassment.” Id.
Mr. Graham fails to demonstrate that the criminal case against him was
commenced with no reasonable hope of success. He also fails to demonstrate any
improper motivation for the charges. Finally, there is no indication that the criminal case
against Mr. Graham has been conducted in such a way as to constitute harassment or
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an abuse of prosecutorial discretion. Therefore, the Court finds that Younger abstention
is appropriate in this action.
In summary, the instant action will be dismissed because Mr. Graham fails to
allege facts that indicate he will suffer great and immediate irreparable injury if the Court
does not intervene in the ongoing state court criminal proceedings. If Mr. Graham
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.
The Court also 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 Mr. Graham files a notice of appeal he also must pay the full $505 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 for a Writ of Habeas Corpus Pursuant to 28
U.S.C. § 2241 (ECF No. 1) is denied and the action is dismissed without prejudice. 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. It is

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FURTHER ORDERED that leave to proceed in forma pauperis on appeal is
denied without prejudice to the filing of a motion seeking leave to proceed in forma
pauperis on appeal in the United States Court of Appeals for the Tenth Circuit.
DATED at Denver, Colorado, this

12th

day of

August

, 2014.

BY THE COURT:

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

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