Aurelio v. Mullin

• Court: Court of Appeals for the Tenth Circuit
• Decided: October 4, 2024
• Docket: 24-1120
• Status: Unpublished

Opinion

Appellate Case: 24-1120 Document: 25-1 Date Filed: 10/04/2024 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT October 4, 2024 _________________________________ Christopher M. Wolpert Clerk of Court NICHOLAS JOSEPH AURELIO,

Plaintiff - Appellant,

v. No. 24-1120 (D.C. No. 1:24-CV-00114-LTB-SBP) LARA J. MULLIN; MARION ALISON (D. Colo.) ROCKER-TUOHY; JAY SUTHERLAND GRANT; DENVER DISTRICT COURT; CITY AND COUNTY OF DENVER,

Defendants - Appellees. _________________________________

ORDER AND JUDGMENT * _________________________________

Before PHILLIPS, BALDOCK, and FEDERICO, Circuit Judges. _________________________________

Nicholas Aurelio appeals the district court’s dismissal of his 42 U.S.C. § 1983

complaint. We have jurisdiction under 28 U.S.C. § 1291 and affirm.

After examining the briefs and appellate record, this panel has determined *

unanimously that oral argument would not materially assist in the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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. Appellate Case: 24-1120 Document: 25-1 Date Filed: 10/04/2024 Page: 2

I. Background

A.

A Colorado jury convicted Mr. Aurelio of crimes committed against a former

girlfriend, including kidnapping, sexual assault, burglary, witness intimidation,

evidence tampering, stalking, violating a protection order, and violating bail bond

conditions. His conviction was affirmed on appeal. People v. Aurelio,

No. 16CA0264, 2018 WL 813746 (Colo. Ct. App. Feb. 8, 2018) (unpublished). He

filed a motion for postconviction relief in the state district court, where it was

pending through various proceedings for five years before the court fully denied

relief. He appealed that denial to the Colorado Court of Appeals.

B.

With his state appeal still pending, Mr. Aurelio filed this action in federal

district court, bringing § 1983 claims against two prosecutors from his state criminal

case, the state district judge who presided in his postconviction proceedings, the City

and County of Denver, and the Denver District Court. His complaint alleges

constitutional violations related to both his trial and the postconviction proceedings.

Related to his trial, Mr. Aurelio alleged his conviction depended “solely” on

the victim’s credibility, R. at 11, that she testified falsely, and that he was convicted

based on her “fantastical and fabricated allegations,” id. at 23. He further alleged the

prosecutors obtained his conviction by concealing exculpatory evidence, introducing

false testimony, and concealing information he claims would have undercut the

credibility of the victim and another former girlfriend who also testified against him.

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Related to the state postconviction proceedings, Mr. Aurelio alleged the state

district court “engaged in a biased, rushed and erroneous fact finding process,” R.

at 9, that he was denied adequate representation of counsel and an expert witness, and

that the judge was biased and made retaliatory rulings. He claimed the

postconviction proceedings involved “unreasonable delays violating due process,

equal protection . . . and the Suspension Clause.” Id. at 10. He also claimed he had

received ineffective assistance from public defenders before trial, from retained

counsel before during and after trial, and from two appointed postconviction counsel.

Based on these allegations, he brought claims for denial of access to the

courts, and for violations of the Constitution’s Suspension Clause and his rights to

due process and equal protection. He sought declaratory judgment stating, in part,

that: (1) defendants “failed to afford [him] . . . due process during his postconviction

proceedings,” R. at 30; (2) the prosecutors violated his rights by concealing

information; (3) the state court “engaged in an erroneous fact finding process” in

postconviction proceedings, id.; (4) the “proceedings afforded . . . were

unconstitutional and a sham;” id. at 31; (5) the district judge retaliated against him;

and (6) the defendants “violated the First Amendment, Due Process and Equal

Protection Clauses,” id. Mr. Aurelio also requested injunctions compelling the

prosecutors to disclose allegedly withheld information and “barring an[y] future

unconstitutional postconviction proceedings.” Id. at 32.

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C.

A magistrate judge recommended that Mr. Aurelio’s complaint be dismissed

under 28 U.S.C. § 1915(e)(2)(B). She concluded he had no cognizable constitutional

claim based on the postconviction proceedings because there is no federal right to

state postconviction review. See Pennsylvania v. Finley, 481 U.S. 551, 557 (1987).

And she concluded that to the extent Mr. Aurelio’s claims attack the validity of his

conviction they are barred by Heck v. Humphrey, 512 U.S. 477 (1994). See Graff v.

Aberdeen Enter., II, Inc., 65 F.4th 500, 520 (10th Cir. 2023) (“If the relevant cause of

action would necessarily imply the invalidity of a litigant’s conviction . . . that claim

must be dismissed [under Heck] . . . .” (internal quotation marks omitted)).

The district court adopted the magistrate judge’s reasoning and

recommendation, overruling Mr. Aurelio’s objections. It also concluded that because

the state proceedings are ongoing, the court should abstain from hearing his § 1983

claims under Younger v. Harris, 401 U.S. 37 (1971). The district court dismissed

Mr. Aurelio’s complaint without prejudice. He appeals.

II. Discussion

Because Mr. Aurelio proceeds pro se, we liberally construe his filings but do

not act as his advocate. Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). Our

review is de novo. Graff, 65 F.4th at 524; Fogle v. Pierson, 435 F.3d 1252, 1259

(10th Cir. 2006).

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We first address abstention because if Younger applies, the federal court must

dismiss the complaint without ruling on the claims. See Graff, 65 F.4th at 523 n.32.

“Younger provides that a federal court must abstain from deciding a case otherwise

within the scope of its jurisdiction in certain instances in which the prospect of undue

interference with state proceedings counsels against federal relief.” Travelers Cas.

Ins. Co. of Am. v. A-Quality Auto Sales, Inc., 98 F.4th 1307, 1317 (10th Cir. 2024)

(internal quotation marks omitted).

“Younger abstention applies only to three categories of state cases,” including

“state criminal prosecutions.” Graff, 65 F.4th at 522 (internal quotation marks

omitted). For cases within those categories, “abstention is required when three

conditions are satisfied.” Id. at 523. “First, the relevant state court proceeding must

be ongoing. Second, the state forum must provide an adequate opportunity to raise

the relevant federal claims. Third, an important state interest must be present.” Id.

(citations and internal quotation marks omitted). If those three requirements are met,

“abstention is mandatory unless one of three exceptions applies.” Winn v. Cook,

945 F.3d 1253, 1258 (10th Cir. 2019). Among those exceptions are prosecutions

“commenced in bad faith or to harass” and “extraordinary circumstances creating a

threat of irreparable injury both great and immediate.” Id. at 1258–59.

We conclude abstention is required here. Initially, Mr. Aurelio does not

dispute that his ongoing postconviction proceedings fall within a category subject to

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Younger. Although we are not aware of controlling authority holding postconviction

proceedings are necessarily part of a “criminal prosecution” to which Younger may

apply, we are persuaded the doctrine should apply here. See Heck, 512 U.S. at 487

n.8 (“[I]f a state criminal defendant brings a federal civil-rights lawsuit during the

pendency of his criminal trial, appeal, or state habeas action, abstention may be an

appropriate response to the parallel state-court proceedings.” (emphasis added; citing

Colo. River Water Conservation Dist. v. United States, 424 U.S. 800, 816 (1976)).

Mr. Aurelio sought postconviction relief as authorized by Colo. Rev. Stat.

§ 18-1-410 by filing a motion pursuant to Colo. R. Crim. P. 35(c)(3) in the case in

which he was prosecuted and convicted. His appeal from the denial of that motion

remains pending in the state appellate court, where the relief he seeks would direct

additional proceedings within the case in which he was prosecuted. See Colo. R.

Crim. P. 35(c)(3)(V) (providing remedies including “vacating and setting aside the

judgment, imposing a new sentence, granting a new trial, or discharging the

defendant”). Furthermore, he seeks relief in federal court that would both interfere

with his pending appeal in the state appellate court and direct additional proceedings

within his case of conviction in the state trial court, including requiring the

prosecutors to disclose allegedly withheld evidence. Because the relief he seeks

would interfere with ongoing state criminal proceedings, we conclude Younger

applies. See Columbian Fin. Corp. v. Stork, 811 F.3d 390, 393 (10th Cir.

2016)(“Younger requires federal courts to refrain from ruling when it could interfere

with ongoing state proceedings.”); Joseph A. ex rel. Corrine Wolfe v. Ingram,

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275 F.3d 1253, 1272 (10th Cir. 2002) (“Younger governs whenever the requested

relief would interfere with the state court’s ability to conduct proceedings, regardless

of whether the relief targets the conduct of a proceeding directly.”).

We also conclude all three criteria for Younger abstention are satisfied. The

first and third are uncontested. The state postconviction appeal is still pending, and it

raises important state interests. See Winn, 945 F.3d at 1258 (“For the purposes of

Younger, state criminal proceedings are viewed as a traditional area of state concern.”

(internal quotation marks omitted)).

As for the second requirement, Mr. Aurelio claims he has been unable to fairly

adjudicate his federal issues, but his argument is conclusory and unpersuasive.

“[U]nless state law clearly bars the interposition of the federal statutory and

constitutional claims, a plaintiff typically has an adequate opportunity to raise federal

claims in state court.” Id. (internal quotation marks omitted). Colorado’s

postconviction procedures expressly allow him to raise federal claims. Colo. Rev.

Stat § 18-1-410(1)(a). Thus, as the district court observed, “there is no indication

that [Mr. Aurelio] cannot raise . . . and vindicate his rights in the state court

postconviction proceedings.” R. at 67–68. Mr. Aurelio has not refuted that

conclusion on appeal. At most, he shows the state court has ruled against him, but

that does not mean he was denied an opportunity to raise his federal claims.

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See Winn, 945 F.3d at 1258 (“Younger requires only the availability of an adequate

state-court forum, not a favorable result in the state forum.”). 1

Mr. Aurelio argues that the bad faith and extraordinary circumstances

exceptions to Younger apply. But these exceptions “only provide for a very narrow

gate for federal intervention.” Phelps v. Hamilton, 59 F.3d 1058, 1064 (10th Cir.

1995) (internal quotation marks omitted). As Mr. Aurelio acknowledges, he has a

“heavy burden” in invoking them. See id. at 1066.

For the bad faith exception to apply, Mr. Aurelio must “prove bad faith or

harassment,” with “more than mere allegations.” Id. at 1065. He has not done so.

He repeats his allegations of prosecutorial misconduct. But he has not shown the

prosecution was “commenced” in bad faith. See Winn, 945 F.3d at 1259. Moreover,

he relies on the unproven and largely conclusory allegations of his complaint. That is

insufficient to obtain federal court intervention. See Phelps, 59 F.3d at 1065.

His argument for the extraordinary circumstances exception also fails. For the

federal court to intervene, a plaintiff must show “a threat of irreparable injury.”

Winn, 945 F.3d at 1259 (internal quotation marks omitted). “If there is no injury

other than that incidental to every criminal proceeding brought lawfully and in good

faith, there is no irreparable injury.” Id. (citation and internal quotation marks

1 To the extent Mr. Aurelio’s claims rest on alleged delay in the state district court, he had an available state mandamus remedy. See Turman v. Buckallew, 784 P.2d 774, 777 (Colo. 1989); see also Colo. R. App. P. 21. 8 Appellate Case: 24-1120 Document: 25-1 Date Filed: 10/04/2024 Page: 9

omitted). And the exception does not apply “when the injury could ultimately be

corrected through the pending state proceeding or on appeal.” Id.

Mr. Aurelio repeats his allegations of misconduct, error, and delay in the state

proceedings, emphasizing the time he has been imprisoned. But we see no

extraordinary circumstance or irreparable injury that could not be remedied through

his pending appeal. Although it took five years for the state district court to

adjudicate his Rule 35(c) postconviction motion, during those proceedings

Mr. Aurelio obtained appointment and substitution of counsel, amended and

supplemented his motion repeatedly, sought reconsideration of the denial of most of

his claims, and unsuccessfully sought disqualification of the judge. As the state court

observed, following the appointment of counsel and the parties’ requested extensions

of time “over two years passed before briefing . . . was complete.” R. at 18. After

the court addressed Mr. Aurelio’s several motions for relief following its first merits

ruling, it held an evidentiary hearing on his remaining claim, and denied relief less

than two months after subsequent briefing on that claim was complete. Mr. Aurelio

brought this case four months later, with the state court appeal still pending. These

circumstances do not warrant federal court intervention.

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III. Conclusion

We affirm the district court’s dismissal without prejudice of Mr. Aurelio’s

complaint because Younger abstention applies. Mr. Aurelio’s motion to proceed

without prepayment of costs or fees is granted.

Entered for the Court

Bobby R. Baldock Circuit Judge