Schwartz v. Pelle

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 12/16/14. No certificate of appealability will issue and 4 Prisoner's Motion and Affidavit for Leave to Proceed Pursuant to 28 U.S.C. § 1915 in a Habeas Corpus Action is granted. (dkals, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Civil Action No. 14-cv-03087-GPG
ERIC SCHWARTZ,
Applicant,
v.
JOE PELLE,
Respondent.

ORDER OF DISMISSAL

Applicant, Eric Schwartz, is an inmate at the Boulder County Jail in Boulder,
Colorado. Mr. Schwartz initiated this action by filing pro se an Application for Writ of
Habeas Corpus (ECF No. 1) seeking relief pertinent to his pending state court criminal
case in the Boulder County District Court. The instant action was commenced and, on
November 17, 2014, Magistrate Judge Gordon P. Gallagher entered an order directing
Mr. Schwartz to cure certain deficiencies if he wishes to pursue his claims. In particular,
Magistrate Judge Gallagher directed Mr. Schwartz to file an amended application on the
proper form and either to pay the $5.00 filing fee or to file on the proper form a motion
seeking leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915.
On December 12, 2014, Mr. Schwartz filed a Prisoner’s Motion and Affidavit for
Leave to Proceed Pursuant to 28 U.S.C. § 1915 in a Habeas Corpus Action (ECF No. 4)
and an Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2241 (ECF No.
5). Mr. Schwartz claims his constitutional rights are being violated because he cannot

afford bail, he is being denied a speedy trial, and his arraignment and preliminary
hearing were scheduled in a biased and prejudiced manner. As relief he seeks
damages and he asks that the criminal charges be dropped and that he be released
immediately. The motion seeking leave to proceed in forma pauperis pursuant to 28
U.S.C. § 1915 will be granted.
The Court must construe the amended application liberally because Mr.
Schwartz 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 action will be dismissed.
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. Schwartz 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
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condition, Mr. Schwartz fails to demonstrate the absence of an adequate opportunity to
present his claims in the state proceedings.
Mr. Schwartz “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. Schwartz 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. Schwartz’s “‘heavy burden’ to overcome the bar of
Younger abstention by setting forth more than mere allegations of bad faith or
harassment.” Id.
Mr. Schwartz 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. Schwartz 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. Schwartz 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. Schwartz
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 Applicant 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 Prisoner’s Motion and Affidavit for Leave to Proceed
Pursuant to 28 U.S.C. § 1915 in a Habeas Corpus Action (ECF No. 4) is granted. It is
FURTHER ORDERED the amended Application for a Writ of Habeas Corpus
Pursuant to 28 U.S.C. § 2241 (ECF No. 5) 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 16th

day of

December

BY THE COURT:

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

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, 2014.