A federal magistrate judge in Colorado on Monday dismissed former Mesa County clerk Tina Peters’ petition for a writ of habeas corpus, one of several long-shot legal maneuvers Peters’ attorneys and allies in the election-denial movement have sought to use to secure her release from state prison.
Peters is serving a nine-year sentence for her role in a breach of her office’s election systems, part of an attempt to find evidence of voter fraud in the 2020 presidential election. She has appealed her August 2024 conviction in state court, arguing that her imprisonment violates her First Amendment right of free speech, and separately filed a habeas corpus petition in federal court, seeking her release on bond while the state appeal is pending.
Scott T. Varholak, chief magistrate judge of the U.S. District Court of Colorado, wrote in a 12-page order that Peters had raised “important constitutional questions concerning whether the trial court improperly punished her more severely because of her protected First Amendment speech.” But in dismissing her petition, he sided with arguments made in the federal case by the Colorado attorney general’s office, which cited longstanding precedent against “federal court interference with state court proceedings.”
“Because Ms. Peters’ appeal remains pending in state court, where she argues that the trial court violated her First Amendment rights by punishing her based upon her speech, any First Amendment error can be corrected through the state appeal,” Varholak wrote.
“Because this question remains pending before Colorado courts, this Court must abstain from answering that question until after the Colorado courts have decided the issue,” he wrote.
Peters’ petition was dismissed without prejudice, meaning it could be filed again at a later date.
President Donald Trump, senior officials in his administration and a host of far-right media figures have stepped up their campaign for Peters’ release in recent weeks. In a series of filings in the habeas corpus case, Peters’ attorneys have stated that she is in “declining health” and alleged that she had been temporarily placed in solitary confinement after objecting to a corrections officer’s treatment of her.
On Nov. 12, at the urging of Office of Deputy Attorney General Todd Blanche, the Federal Bureau of Prisons sent a letter to the Colorado Department of Corrections requests Peters’ transfer “for the purpose of serving a state-imposed sentence within a federal correctional institution.” The DOC and Gov. Jared Polis have affirmed that they are not seeking such a transfer.
Trump does not have the power to pardon Peters, who was convicted on state charges. Despite this, her attorney, Peter Ticktin, said last week that he has submitted an application for a presidential pardon of Peters, arguing in a subsequent letter that the president “has the power to grant a pardon in any of the states of the United States.” Such an outcome would violate centuries of legal consensus and the longstanding dual-sovereignty doctrine that the U.S. Supreme Court upheld in criminal matters as recently as 2019.
In an appearance on longtime Trump ally Steve Bannon’s podcast last month, Ticktin also said he thinks the Trump administration should use the U.S. military to free Peters from the Colorado prison by force.
Trump himself has repeatedly called on Polis to “free” Peters, most recently in a Dec. 3 social media post in which Trump wrote that the governor “refuses to allow an elderly woman, Tina Peters, who was unfairly convicted of what the Democrats do, cheating on Elections, out of jail!” In August, he threatened “harsh measures” if Peters wasn’t released.
Claims that the 2020 election was fraudulent or compromised have been debunked by elections officials, experts, media investigations, law enforcement, the courts, and Trump’s own campaign and administration officials.
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