Burns v. Sheriff Jefferson County Jail
ORDER dismissing this action without prejudice, and denying without prejudice leave to proceed in forma pauperis on appeal, by Judge Lewis T. Babcock on 10/8/15. No certificate of appealability will issue. (dkals, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 15-cv-01875-GPG
SHERIFF, Jefferson County Jail,
ORDER OF DISMISSAL
Applicant Douglas Burns is detained at the Jefferson County Detention Facility in
Golden, Colorado. Applicant 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. Applicant specifically claims that his due process rights are have been
violated because he was forced to represent himself and then was given counsel who is
ineffective. As relief, Applicant asks that the criminal case be dismissed.
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 Ademand 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: A(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
Ahas 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,
Applicant fails to demonstrate the absence of an adequate opportunity to present his
claims in the state proceedings.
Applicant asserts that he was forced to be represented by counsel during his
preliminary hearing, but counsel was ineffective. ECF No. 1 at 3. Applicant further
claims that counsel, apparently subsequent to the preliminary hearing, will not fill motions
to dismiss or investigate and has lied to Applicant, resulting in Applicant representing
himself. Id. Applicant further claims that he filed objections regarding counsel, but the
trial court would not address Applicant=s concerns and forced him to proceed pro se. Id.
Applicant also claims he has appealed several times to the Colorado Supreme Court, but
his appeals were denied. Id.
Applicant does not identify specifically what grievances he raised before the trial
court, other than to state he filed objections, and how he presented these claims to the
Court. Applicant, therefore, does not demonstrate that the trial court has denied him an
adequate forum to present his due process and ineffective assistance of counsel claims.
Furthermore, Applicant may present his federal claims 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 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 Amay 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 A>heavy burden= to overcome the bar of
Younger abstention by setting forth more than mere allegations of bad faith or
Applicant 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
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 or
recently has been 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. 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
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. It is
FURTHER ORDERED that all pending motions are denied as moot.
DATED at Denver, Colorado, this 8th day of
BY THE COURT:
s/Lewis T. Babcock
LEWIS T. BABCOCK, Senior Judge
United States District Court
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