Opana v. No Named Respondent

Filing 5

ORDER dismissing this action without prejudice, and denying leave to proceed in forma pauperis on appeal, by Judge Lewis T. Babcock on 2/11/15. (dkals, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 14-cv-03501-GPG
KALANI OPANA,
Petitioner,
v.
[NO NAMED RESPONDENT],
Respondent(s).

ORDER OF DISMISSAL

Petitioner, Kalani Opana, is in the custody of the Colorado Department of
Corrections at the Colorado Territorial Correctional Facility in Canón City, Colorado. He
initiated this action by submitting a Letter (ECF No. 1) to the Court in which he asks the
Court to intervene in an ongoing state criminal proceeding.
On January 6, 2015, Magistrate Judge Gordon P. Gallagher directed Mr. Opana
to show cause, in writing, within 30 days, why this action should not be dismissed
without prejudice pursuant to abstention principles articulated in Younger v. Harris, 401
U.S. 37 (1971). (ECF No. 3). Petitioner filed a Letter responding to the Order to Show
Cause (Response) on January 22, 2015. (ECF No. 4).
The Court construes Mr. Opana’s allegations liberally because he 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 discussed
below, this action will be dismissed.

Mr. Opana alleges in his Letter that his state court conviction for second degree
murder was reversed by the Colorado Court of Appeals in May 2014, and the case was
remanded for a new trial. He further alleges that the State filed a petition for certiorari
review with the Colorado Supreme Court in October 2014 which is pending. Mr. Opana
complains that he has been incarcerated since August 2009 and he presumably seeks
release from prison.
Absent extraordinary or special circumstances, federal courts are prohibited from
interfering with ongoing state criminal proceedings. See Younger, 401 U.S. 37; 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 for Younger abstention is met by Mr. Opana’s affirmative
allegations that the state court criminal proceeding is ongoing. The second condition
also is satisfied 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. Opana fails to demonstrate the absence
of an adequate opportunity to present his claims in the state proceedings. Indeed, his
only claim appears to be that the Colorado Supreme Court is taking too long to rule on
the State’s petition. However, the federal district court has no authority to order the
state supreme court to enter an order granting or denying a petition for certiorari review.
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Mr. Opana “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)).
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. Opana’s “‘heavy burden’ to overcome the bar of
Younger abstention by setting forth more than mere allegations of bad faith or
harassment.” Id.
In his Response, Mr. Opana does not allege any facts to suggest that the State’s
petition for certiorari review in the Colorado Supreme Court was unconstitutionally
motivated, or constituted harassment or an abuse of prosecutorial discretion.
Furthermore, the fact that Petitioner remains incarcerated while the Colorado
Supreme Court considers whether to grant the State’s petition for certiorari review does
not establish great and immediate irreparable injury. Because Mr. Opana has failed to
overcome the presumption of abstention, this action will be dismissed. Accordingly, it is
ORDERED that this action is DISMISSED WITHOUT PREJUDICE pursuant to
the doctrine of Younger abstention. It is
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FURTHER ORDERED that leave to proceed in forma pauperis is denied for the
purpose of appeal. 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. See Coppedge v. United
States, 369 U.S. 438 (1962). If Mr. Opana files a notice of appeal he must also 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.
DATED February 11, 2015, at Denver, Colorado.

BY THE COURT:

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

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