Thread by @AsheinAmerica

We are back at the Alfred A. Arraj federal courthouse for Tina Peters’ habeas corpus hearing.

Will post realtime updates when the hearing adjourns.

All Rise!

The court: As I see it, petitioner has raised three arguments:
(1) First Amendment: Was raised to CO court of appeals
(2) Due process: Failure to concise retention requirements, was raised to CO court of appeals.
(3) Due process: Intro of evidence of security breach
(4) Due process: Failure to conduct an inquiry into biased juror.
(5) Immunity: Was raised to CO court of appeals

It is not clear that 1, 2 and 5 exhaust anything. 3 and 4 were not raised to the court of appeals at all. Petitioners claim they did brief on these, but that matter was filed in March and has not been decided yet.

These are my questions about where this is a mixed petition.

Supplement filed by AGs office, they noticed potential issues but have not briefed them. Issues with jurisdiction, want to raise them here.

Other than the First Amendment argument, the other arguments attack the conviction, not the appeal bond.

The court gives a hypothetical about race-based appeals bond questions. Demonstrating to the parties that of two specific arguments — one is valid, the other is not.

So why do your arguments 2-5 not address the appeal bond, they go to the conviction which is pending before the appeal bond.

Second question, not briefed. Is Habeas available for denial of appeal bond? Court cites a couple cases — claims he has not found one where they provide relief.

To Petitioner: Do you have any cases anywhere where the court has granted relief while appeal is pending? If the answer is yes, what happens? Is the bond state or federal? For example, if bond is violated, who can revoke it? State or federal? Cannot find a case where a federal case granted relief on state bond.

Counsel for Peters: Let’s simplify the exhaustion issue. Let’s throw out everything but the first ground. Let’s take 2-5 and discard them to the side — of your honor agrees on the first point maybe I can pick them up again.

The court: If you pick them up again, you’ve got a mixed petition.

Counsel for Peters: I don’t need to win on five counts if I can win on one.

Counsel talks about Peters detention and the merits. Back and forth with judge.

Counsel for Peters: We are fine to proceed with the first amendment case. The other issues are the basis of the appeal and their inclusion was intended to show the court that the appeal is not frivolous.

The Court: Will require a written motion to that effect. Asks again about supporting case law for Petitioner petition for federal intervention during appeal. “I’m not aware of anything that authorizes that.”

Counsel for Peters: (confers with his team) Directs the court to page 3 of his habeas petition to reference several cases. Another attorney came up to the podium and clarified.

The court is reading the brief / cases.

The Court: These cases all affirm the denial of the appeal bond. Are there any cases where the court has granted habeas on an appeal bond.

Counsel for Peters: Habeas is available to address denial of bond. If your honor agrees, then that is available.

The Court: Who oversees the bond?

Counsel for Peters: Federal pretrial services. And this is not as big an issue as your honor suggests. It’s a mechanical question and cannot defeat her constitutional right to be out on bail.

The Court: Other courts have said it’s a Younger issue.

Counsel for Peters: That is mind boggling. Younger does not apply in the Habeas world. There is irreparable harm being done everyday. We have a person in prison because of a fear that she is a danger to society because of what she might say! If ever there was a case, this is it. No one should be in prison in the United States of America because of what they might say. If there’s ever been a case where someone should be released from prison pending appeal, it’s this case. This is a case where the merits out-scream any equitable decisions about jurisdiction.

The court: If you abandon arguments 2-5, in the first argument, you don’t mention the First Amendment. Do you consider that exhaustive?

Counsel for Peters: It is exhaustive. The first amendment is more critical to this than anything else, she is being held because of fear of what she might say.

The Court: Habeas is 100% clear that, if it is available, it must be brought to the appellate court first. Did you argue that to the Colorado court of appeals?

Counsel for Peters: It’s not the substance of the appeal. It’s the substance of bond.

The Court: Then you’re admitting that you haven’t exhausted the claim.

Counsel for Peters: It’s exhausted because it’s gone as far as it can go. (Co-counsel for Peters then cites the record where they DID make the argument to the appeals court.)

Back and forth on speech and whether or not the 1A claims have been exhausted in the court of appeals. Peters’ counsel claims they have, perhaps not eloquently enough, but it’s there.

The Court: Any other arguments from the Petitioner.

Counsel for Peters: More clarity on exhaustion of arguments to Colorado Court of Appeals.

The Court: Have you gone to the CO CoA and made this 1A case the as clearly as you have briefed it here? You can’t come in here with a mixed petition. If you keep 2-5, you have a mixed petition and I have to dismiss it.

Counsel for Peters: We gave you a mixed bag, your honor. Perhaps we had too many cooks.

The Court: To the AGs office, let’s assume they drop arguments 2-5. Where are we on argument 1?

AG’s Office: Agrees with the court that the prior briefing didn’t appropriately alert the court to the issue to fully exhaust the issue. AG’s office would be happy to brief the issue in full for the court (that the 1A claim hasn’t been exhausted).

Second, Peters is making the same underlying constitutional claim in both cases — that the sentencing court violated her 1A rights in her sentencing. This claim is pending before the CO CoA. The purpose of the exhaustion doctrine is so that we don’t have a habeas court ruling on a claim that is pending before another court. Younger also applies, and we would be happy to brief the court on that as well. The principles of comity and federalism state that this court must wait until the CO CoA has ruled to ensure it doesn’t run afoul of those doctrines.

The Court: I think we do need Younger briefed. I want to give both sides the opportunity to address that issue. I am going to order the petitioner by the end of the week to dismiss 2-5. AG’s has 3 weeks from today to file a jurisdictional brief. 14 day response and 7 day reply. This is going to look different — want to do some further research. Not my intent to drag this out, but this is a complicated issue and I want to make sure it is resolved properly.

AG’s office: Briefing on what happens if the federal court does find a constitutional issue? Argues it should go back to state court for process.

The Court: I’m not there yet — we’re not to merits briefing yet.

AG’s office: Understood. Re: Younger, it is still our position that Peters has the burden and she has not met that burden of exhaustion.

The Court: I want the briefing. This is a different case than usual Habeas. We haven’t dealt with this before.

Counsel for Peters: Comes back up and identifies the more extensive briefing done before the CO CoA. The briefing is there before CoA. In terms of timing, every day that goes by is another day in hell for Tina Peters. Can we expedite the page?

The Court: I am cognizant of the fact that if you’re correct, she is being held in violation of her rights. All I can do is issue a recommendation.

Counsel for Peters: Thank you, your honor.

Hearing is adjourned.

Court is in recess.

/END

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