FILED

United States Court of Appeals

Tenth Circuit

May 11, 2012

Elisabeth A. Shumaker

Clerk of Court

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

DOUGLAS A. GLASER,

Petitioner-Appellant, No. 11-1529

(D.C. No. 1:11-CV-01614-RBJ)

(D. of Colo.) v.

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 This order is not binding precedent except under the doctrines of law of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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