Brown v. Arapahoe County 18th Judicial District

Filing 10

ORDER dismissing this action without prejudice, and denying without prejudice leave to proceed in forma pauperis on appeal, by Judge Lewis T. Babcock on 1/22/15. No certificate of appealability will issue. (dkals, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 14-cv-03384-GPG

ALEXANDER BROWN,
Applicant,
v.
ARAPAHOE COUNTY 18th JUDICIAL DISTRICT,
Respondent.

ORDER OF DISMISSAL

Applicant Alexander Brown is detained at the Arapahoe County Detention Facility
in Centennial, Colorado. Applicant has filed pro se an Application for a Writ of Habeas
Corpus Pursuant to 28 U.S.C. § 2254, ECF No. 9, asking the Court to intervene in his
state court criminal case. Applicant specifically claims that the prosecution has violated
his constitutional rights to due process and a fair trial. Applicant further contends the
prosecution lacks the evidence to support the charges against him and that he has
attempted to contact the trial court, but he has not received a response, even though
prosecution’s court-ordered bill of particulars was insufficient and failed to specify
“jurisdictional authority for Arapahoe County,” ECF No. 8 at 10. As relief, Applicant asks
that the criminal charges be dismissed for lack of evidence and that he be released from
custody.
The Court must construe the Application liberally because Applicant 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 act as 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, Applicant
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 Applicant 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, Applicant

fails to demonstrate the absence of an adequate opportunity to present his claims in the
state proceedings.
Applicant asserts that he is represented by counsel, but also claims that he has
“attempted to contact the trial court and file my complaint without so much as a
response to my grievances.” Application, ECF No. 8 at 8. Furthermore, throughout the
Application, Applicant claims the prosecution’s “bill of particulars . . . was insufficient.”
Applicant concedes that he was able to challenge the prosecution’s criminal charges by
filing a defense motion for a bill of particulars, and that the trial court granted and
ordered the prosecution to elect specific acts of criminal conduct that they will be bound
by at trial; but he claims that in violation of the trial court’s order the prosecution has
failed to elect specific acts for the two counts of sexual misconduct, which may result in
additional charges outside of the Arapahoe County jurisdiction.
Applicant does not identify what grievances he raised before the trial court and
how he presented these claims to the Court, especially since he has been represented
by counsel. Applicant, therefore, does not demonstrate that the trial court has denied
him an adequate forum to present his due process and fair trial claims. Furthermore,
Applicant may present his federal claims of right to due process and to a fair trial on
direct appeal in the Colorado Court of Appeals. The Tenth Circuit has found that the
ability to present a federal claim on direct appeal demonstrates the opportunity to
present claims in an adequate state forum. See Fisher v. Whetsel, 142 F. App’x 337,
339 (10th Cir. 2005) (Tenth Circuit found an ineffective assistance of counsel claim
could be raised in the Oklahoma Court of Criminal Appeals). Applicant also may
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present ineffective assistance of counsel claims in a postconviction motion in Colorado
state court. See Colo. R. Crim.

P. 35(c)(2). Based on the above findings, Applicant has failed to demonstrate an
adequate opportunity to present his federal claims in a state proceeding.
Applicant “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 Applicant 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 Applicant’s “‘heavy burden’ to overcome the bar of
Younger abstention by setting forth more than mere allegations of bad faith or
harassment.” Id.
Applicant fails to demonstrate that the criminal case against him was
commenced with no reasonable hope of success. He also fails to demonstrate any
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improper motivation for the charges. Finally, there is no indication that the criminal case
against Applicant has been conducted in such a way as to constitute harassment or 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 Applicant 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 Applicant 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 Application for a Writ of Habeas Corpus Pursuant to 28
U.S.C. § 2254, ECF No. 8, 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 22nd

day of

January

, 2015.

BY THE COURT:

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

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