United States District Court, D. Colorado
ORDER OF DISMISSAL
LEWIS T. BABCOCK,
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 incompetency evaluation of Applicant; (2) is "prejudice 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 "factual 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 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 " >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 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); Drop ...