Opinion
Civil Action No. 14-cv-00487-BNB
02-28-2014
DERRIS RUSSELL MAYBERRY, Applicant, v. 2nd JUDICIAL DISTRICT COURT, Respondent.
ORDER OF DISMISSAL
Applicant, Derris Russell Mayberry, acting pro se, initiated this action by filing an Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2241. Applicant paid the $5 filing fee.
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. The action will be dismissed for the following reasons.
Applicant states that he pled not guilty on August 2, 2013, in a state criminal proceeding, and a jury trial was set for October 29, 2013. Applicant further states that on October 21, 2013, the trial court granted the prosecution's request for a continuance until December 3, 2013; and, on December 2, the trial court granted defense counsel's request for a continuance over Applicant's objection. Applicant also states that his request for substitute counsel was denied; his counsel's request to withdraw was denied; trial was set for February 4, 2014, and reset for April 22, 2014, due to the alleged victim's inability to appear; and his speedy trial deadline now is June 2, 2014. Applicant contends that, as a result of the continuances, he has been denied his rights to a speedy trial and to effective assistance of counsel.
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. With respect to the second condition, Applicant fails to demonstrate the absence of an adequate opportunity to present his claims in the state proceedings. The fact that Applicant objected to the continuances but has not obtained the relief he seeks in state court does not mean that he has not had, or does not have, an adequate opportunity to present his federal claims in the state court proceedings. The third 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).
To establish extraordinary or special circumstances that would override abstention in this case, 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 "very narrow gate for federal intervention." Phelps, 59 F.3d at 1064 (internal quotation marks omitted). Applicant, however, "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.Id. 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. at 890.
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. 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. "[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).
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 4344; see also Penzoil Co. v. Texaco, Inc., 481 U.S. 1, 10-12 (1987) (noting that Younger abstention "'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))).
Because none of the Younger abstention doctrine exceptions apply, this Court will abstain from exercising jurisdiction over the Application and will refrain from discussing exhaustion issues.
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 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. It is
FURTHER ORDERED that leave to proceed in forma pauperis on appeal is denied.
DATED at Denver, Colorado, this 28th day of February, 2014.
BY THE COURT:
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LEWIS T. BABCOCK, Senior Judge
United States District Court