UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

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NICHOLAS JOSEPH AURELIO, 

 Plaintiff - Appellant,

v.

LARA J. MULLIN; MARION ALISON 

ROCKER-TUOHY; JAY SUTHERLAND 

GRANT; DENVER DISTRICT COURT; 

CITY AND COUNTY OF DENVER, 

 Defendants - Appellees.

No. 24-1120

(D.C. No. 1:24-CV-00114-LTB-SBP)

(D. Colo.)

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ORDER AND JUDGMENT*

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Before PHILLIPS, BALDOCK, and FEDERICO, Circuit Judges.

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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.

FILED

United States Court of Appeals

Tenth Circuit

October 4, 2024

Christopher M. Wolpert

Clerk of Court

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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 Feb. 8, 2018) (unpublished).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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A.

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.

B.

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

C.

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. 

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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

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