Glaser v. Wilson

FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS May 11, 2012
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
DOUGLAS A. GLASER,
Petitioner-Appellant, No. 11-1529
(D.C. No. 1:11-CV-01614-RBJ)
v. (D. of Colo.)
GARY WILSON,
Respondent-Appellee.
ORDER DENYING CERTIFICATE OF APPEALABILITY *
Before KELLY, TYMKOVICH, and GORSUCH, Circuit Judges. **
Douglas A. Glaser, a Colorado state prisoner proceeding pro se, seeks a
certificate of appealability (COA) to appeal the district court’s dismissal of his
application for a writ of habeas corpus pursuant to 28 U.S.C. § 2241. He also
requests leave to proceed in forma pauperis on appeal. Having jurisdiction under
28 U.S.C. § 1291, we DENY Glaser’s request for a COA and DISMISS his
appeal. We also DENY his motion to proceed in forma pauperis.
*
This order is not binding precedent except under the doctrines of law of
the case, res judicata and collateral estoppel. It may be cited, however, for its
persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
**
After examining the briefs and the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument.
I. Background
Glaser is an inmate at the Denver County Jail, where he awaits trial on
various charges, including securities fraud, possession of a weapon by a previous
offender, and criminal impersonation. Glaser was first arrested on February 14,
2005. Since then, the history of his case has been extraordinarily complex,
including “eight rescheduled trial dates, two mistrials, three replacements of
defense counsel (including one because of a suicide and another because of a
mental breakdown mid-trial), one interlocutory appeal by the prosecution, and
two petitions to the [S]upreme [C]ourt. . . .” People v. Glaser, 250 P.3d 632, 635
(Colo. App. 2010).
The state trial court dismissed the charges against Glaser on speedy trial
grounds in 2008, but was reversed by the Colorado Court of Appeals. Id. at
635–36. Glaser was then re-arrested in April 2011. He was convicted of the
securities fraud charges on January 6, 2012. His remaining charges are set for
trial on May 22, 2012.
Meanwhile, Glaser filed a habeas petition in federal district court pursuant
to 28 U.S.C. § 2241 asserting a number of claims, including malicious
prosecution, speedy trial violations, and double jeopardy violations. The district
court dismissed his petition without prejudice under the abstention doctrine of
Younger v. Harris, 401 U.S. 37 (1971), and denied Glaser a COA. This appeal
followed.
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II. Discussion
We review de novo the district court’s denial of a § 2241 petition.
Bradshaw v. Story, 86 F.3d 164, 166 (10th Cir. 1996).
A petitioner may not appeal a denial of habeas relief without a COA.
28 U.S.C. § 2253(c)(1)(A). To obtain a COA, a petitioner must demonstrate a
“substantial showing of the denial of a constitutional right.” Id. § 2253(c)(2).
When a district court denies a habeas petition on procedural grounds, a COA
should issue only when the prisoner shows that “jurists of reason would find it
debatable whether the petition states a valid claim of the denial of a constitutional
right and that jurists of reason would find it debatable whether the district court
was correct in its procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 484
(2000).
Federal courts are prohibited from interfering with ongoing state criminal
proceedings absent extraordinary or special circumstances. Younger, 401 U.S. at
37. To establish such extraordinary circumstances, a defendant must show he
faces a great, immediate, and irreparable injury. Id. at 46. This can include
showing that state officials are prosecuting the defendant in bad faith. Phelps v.
Hamilton, 122 F.3d 885, 889 (10th Cir. 1997).
Glaser argues that he should receive a COA because his petition establishes
many violations of his constitutional rights. But he fails to argue that reasonable
jurists would find it debatable whether the district court correctly applied Younger
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and dismissed his petition on procedural grounds. Slack, 529 U.S. at 484. Our
review of Glaser’s appellate brief, his habeas petition, and the district court’s
order reveals the opposite.
Glaser’s appellate brief attempts to invoke the malicious prosecution
exception to Younger by rehashing the same arguments he made before the
district court. See Phelps, 122 F.3d at 889. Accordingly, we affirm the dismissal
of Glaser’s petition for substantially the same reasons articulated by the district
court. 1 As the district court concluded, no factual basis supported Glaser’s claim
that the government fabricated evidence or abused its prosecutorial discretion.
Glaser also claims for the first time on appeal that the Colorado Court of
Appeals erred when it reversed the dismissal of his case on speedy trial grounds
and that the prosecution violated his right to due process by failing to provide him
with a bill of particulars, despite a court order to do so. Even if we had
jurisdiction to consider these claims, because Glaser did not raise them before the
district court, he is barred from asserting them here. Johnson v. Champion, 288
F.3d 1215, 1229 (10th Cir. 2002).
1
Although Glaser was convicted on the securities fraud charges after the
district court issued its decision, this does not render his petition moot or alter the
district court’s application of Younger because the state criminal proceedings
against him are ongoing. He has yet to face trial on his remaining charges, and
may appeal his securities fraud convictions to the Colorado Court of Appeals.
See Pennzoil Co. v. Texaco, Inc., 481 U.S. 1, 14 n.13 (1987) (observing that a
pending appeal before a state court indicated state proceedings were ongoing for
Younger purposes).
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III. Conclusion
For the reasons stated above, we DENY Glaser’s request for a COA and
DISMISS his appeal. Finally, we note that Glaser has filed two previous habeas
petitions in federal district court, both of which were also dismissed on Younger
grounds. See Glaser v. Wilson, No. 11-cv-01335-LTB (D. Colo. June 9, 2011);
Glaser v. Lovinger, No. 07-cv-00843-LTB-BNB (D. Colo. Mar. 3, 2008). Given
this history and Glaser’s failure to identify a non-frivolous argument that Younger
should not apply once again, we also DENY his request to proceed in forma
pauperis. See McIntosh v. U.S. Parole Comm’n, 115 F.3d 809, 812–13 (10th Cir.
1997).
ENTERED FOR THE COURT
Timothy M. Tymkovich
Circuit Judge
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