Hodson v. Reams

Filing 17

ORDER dismissing this action, and leave to proceed in forma pauperis on appeal, by Judge Lewis T. Babcock on 3/22/16. No certificate of appealability will issue. (dkals, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Civil Action No. 15-cv-02341-GPG

TRAVIS HODSON,
Applicant,
v.
STEVE REAMS,
Respondent.

ORDER OF DISMISSAL

Applicant Travis Hodson, acting pro se, initiated this action by filing an Application
for a Writ of Habeas Corpus Pursuant to 28 U.S.C. ' 2241 and a Prisoner=s Motion and
Affidavit for Leave to Proceed Pursuant to 28 U.S.C. ' 1915 in a Habeas Corpus Action.
Applicant was denied his request to proceed pursuant to ' 1915 and subsequently paid
the $5 filing fee on November 13, 2015.
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 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.
Applicant asserts that the public defender representing him in his current state
criminal proceeding, Case No. 13CR1106, is ineffective because he (1) ordered a second
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incompetency evaluation of Applicant; (2) is Aprejudice about the rules of evidence@; (3) is
biased and prejudice, which has caused errors in the judicial proceedings; (4) does not
consult with Applicant before he makes a decision; and (5) violated the client-attorney
privilege when he consulted with Dr. Wachtel about Applicant=s defense. ECF No. 1 at 3
and 5-8. Applicant further asserts that he is competent to proceed because he has
shown Afactual findings of competence.@ Id. at 8.
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 under
Younger is jurisdictional in nature, see D.L. v. Unified Sch. Dist. No. 497, 392 F.3d 1223,
1228 (10th Cir. 2004), and is appropriate when three conditions are met:
First, there must be ongoing state criminal, civil, or
administrative proceedings. Second, the state court must
offer an adequate forum to hear the federal plaintiff=s claims
from the federal lawsuit. Third, the state proceeding must
involve important state interests, matters which traditionally
look to state law for their resolution or implicate separately
articulated state policies.
Taylor v. Jaquez, 126 F.3d 1294, 1297 (10th Cir. 1997). If the three requirements are
met, and no exceptions to Younger apply, a federal court must abstain from hearing the
case. See Weitzel v. Div. of Occupational & Prof=l Licensing, 240 F.3d 871, 875 (10th
Cir. 2001).
The first condition is met because Applicant=s charges remain pending against him
in his state court criminal case. ECF No. 1 at 5 and 10 (Applicant has been found
incompetent to proceed with Case No. 13CR1106 and asks that his criminal proceeding
be removed to this Court for further consideration of the pretrial proceedings.). The
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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). Applicant fails to demonstrate that the state criminal proceeding is not an
adequate forum to hear his claims that his public defender is ineffective. He concedes
that he has raised the ineffective assistance of counsel claims in state court. ECF No. 1
at 8.
Accordingly, the state court proceeding offers Applicant a forum to raise his
constitutional challenges and the adjudication of this federal lawsuit would unavoidably
invade the state court=s ability to decide the same issues. See Younger, 401 U.S. at
43-44; see also Penzoil Co. v. Texaco, Inc., 481 U.S. 1, 10-12 (1987) (noting that
Younger abstention A >offers the opportunity for narrowing constructions that might
obviate the constitutional problem and intelligently mediate federal constitutional
concerns and state interests= @) (quoting Moore v. Sims, 442 U.S. 415, 429-30 (1979))).
With respect to the third condition, the State has an important interest in the
administration of its Criminal Code, see Penzoil, 481 U.S. at 12-13, as well as the state
competency procedures set forth in Colo. Rev. Stat. '' 16-8.5-101-118.
To establish extraordinary or special circumstances, Applicant must be facing an
irreparable injury that is both great and immediate. See Younger, 401 U.S. at 46. The
exceptions to Younger provide only for a Avery narrow gate for federal intervention.@
Phelps, 59 F.3d at 1064 (internal quotation marks omitted). Applicant, however, Amay
overcome the presumption of abstention >in cases of proven harassment or prosecutions
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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.
Id. 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 harassment.@ Id. at 890.
To the extent that Applicant may be attempting to assert that his prosecution is
being conducted to harass him by conducting multiple competency evaluations,
competency may be of concern when a defendant does not waive an incompetency
defense or a competency procedure is not constitutionally adequate or procedures are
not properly applied. See, e.g., Pate v. Robinson, 383 U.S. 375, 385 (1966) (discussing
application of Illinois competency statutes in conjunction with holding that petitioner did
not waive defense of incompetency to stand trial); Drope v. Missouri, 420 U.S. 162 (1975)
(concluding that Missouri competency procedures were constitutionally adequate, but not
properly applied).
Here, however, Applicant is claiming he is competent to proceed with his trial, and
his trial has been unnecessarily delayed due to a second request for a competency
evaluation. Applicant challenges the public defender=s request for a second evaluation
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and Applicant appears to assert that he has demonstrated competence but still has been
deemed incompetent. Id. Applicant=s generic statement that he has shown factual
findings of competence does not demonstrate a violation of his constitutional rights that
he is not able to challenge in a state court forum; and his claims regarding the
competency proceedings are vague and conclusory. ECF No. 1 at 8.
Furthermore, the state incompetency procedures are designed to protect a
criminal defendant=s federal due process rights. See Jones v. District Court, 617 P.2d
803 (Colo. 1980) (citing Supreme Court due process precedent); Bloom v. People, 185
P.32d 797 (Colo. 2008). Applicant=s claims indicate that the trial court is endeavoring to
ensure that Applicant=s criminal case does not proceed until he is restored to
competency. See Palmer v. Schneider, 699 F.2d 322, 324-25 (6th Cir. 1983)
(dismissing action under Younger where plaintiff was indicted by state court for murder
but found incompetent to stand trial, and no irreparable injury occurred because there
was no evidence that state officials had acted in bad faith and plaintiff had never been
tried for murder).
Pursuant to Colo. Rev. Stat. ' 16B8.5-116(2), the trial court must review the issue
of Applicant=s competency every three months, which based on Applicant’ assertions
this most likely is happening. Furthermore, absent a showing of bad faith, the
extraordinary circumstances would not be demonstrated even if an applicant has been
adjudicated incompetent incorrectly under state statutory procedures. See Younger,
401 U.S. at 46-47.
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
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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. Applicant fails to state any facts to indicate that he will suffer
great and immediate irreparable injury if this Court does not intervene in the ongoing state
court criminal proceedings. His claims are conclusory and insufficient to meet the
exception to Younger abstention. A[I]t is the [applicant=s] heavy burden to overcome the
bar of Younger abstention by setting forth more than mere allegations of bad faith or
harassment.@ Phelps, 122 F.3d at 889 (internal quotation marks omitted).
Finding no Younger abstention doctrine exceptions apply and Applicant has failed
to demonstrate extraordinary circumstances, this Court will abstain from exercising
jurisdiction over the Application.
Because the Court abstains from exercising jurisdiction over the Application, the
Court will refrain from discussing exhaustion issues. Applicant is instructed that if he is
convicted and his conviction and sentence are ultimately upheld in state court, and he
believes that his federal constitutional rights were violated, he may pursue his claims in
this Court by filing an application for a writ of habeas corpus pursuant to 28 U.S.C.
' 2254 after he exhausts state remedies.
In summary, the instant action will be dismissed because Applicant is subject to a
criminal proceeding and he 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.
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
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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 is denied and the action is dismissed without
prejudice for lack of jurisdiction. 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 or that
this court was incorrect in its procedural ruling. It is
FURTHER ORDERED that leave to proceed in forma pauperis on appeal is
denied.
DATED at Denver, Colorado, this

22nd

day of

March

BY THE COURT:
s/Lewis T. Babcock
LEWIS T. BABCOCK, Senior Judge
United States District Court

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, 2016.