Petition for Writ of Certiorari — James E. Frantz, Petitioner v. Andre Stancil, Executive Director, Colorado Department of Corrections, et al.
Supreme Court briefDec 5, 2025
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25-68 1 1
ORIGINAL
USAlONo. 24-1471
filed
DEC 0 5 2025
IN THE
SUPREME COURT OF THE UNITED STATES
JAMES E FRANTZ - PETITIONER
a
vs.
ANDRE STANCIL, EXEC DIR. COLO. DEPT. OF CO, and
THE ATTORNEY GENERAL OF THE STATE OF COLORADO
-RESPONDENT(S)
ON PETITION FOR WRIT OF CERTIORARI TO THE
UNITED STATES COURT of APPEALS for the TENTH CIRCUIT
PETITION FOR WRIT OF CERTIORARI
James Frantz, CDOC #158702
Bent County Correction Facility
4D-364(d)
11460 County Road FF-75
Las Animas, CO 81054
1
QUESTION(S) PRESENTED
1) Did the District Court error by failing to recognizing substantive
claims as cognizable under habeas corpus and failing to exercise its equitable au
thority to bypass the limitations of 28 USCS § 2244(d)? Then in turn not determin
ing the merits of the constitutional violations inherent in the petitioner's substantive
innocence claim?
2) Did the Court of Appeals for the Tenth Circuit error by denying the
petitioner's application for a certificate of appealability by failing to recognized the
District Court's error as presented above?
3) As it is not controversial that substantive actual innocence claims are
cognizable under habeas corpus jurisprudence (Hill v United States, Davis v
United States, Jones v Hendrix^, does the habeas court have a primary duty to re
solve this issue of substantive actual innocence prior to any consideration of re
strictions created in the Anti-terrorist and Effective Death Penalty Act (AEDPA)?
Because a substantive claim of actual innocence is binary in nature, either true or
false, does the court have an primary initial obligation to resolve the merits of the
claim?
1
Hill, 368 US 424, Davis, 417 US 333, Jones, 599 US 455
2
4) Given the holdings in Herrera v Collins 506 US 390, 404, 113 SCT
853 does the fundamental miscarriage of justice exception to see that federal con
stitutional errors do not result in the incarceration of innocent persons obligated the
habeas court to review a substantive actual innocence claim on the merits?
5) Is there a statutory tension between the requirements of 28 USCS §
2243 and § 2244? Can the non-jurisdictional character of 2244(d)(1) supersede the
mandate of Congress incorporated within 2243? Does the obligation of Herrera
underpin a substantive duty within 2243? Does the “shall” command requiring
summary judgments of law and justice control in the context of adjudicating a sub
stantive claim of innocence which is itself a question of law? Does the law defin
ing the substantive claim control over the law of § 2244?
5) If a court is presented with a substantive actual innocence claim in
which, 1) the facts are not in dispute, and 2) the controlling law is to be construed
as true absent credible contravention by the respondent, 3) then the liberty interests
and substantive rights of the petitioner are a matter of this question of law. Is the
court obligated to answer the question through a summary judgment pursuant to
Rule 12 governing habeas corpus proceedings?
3
6) If true, a substantive claim would inherently incorporate constitutional
and structural errors. In past precedent this Court has held that such errors require
automatic reversal. In the post-AEDPA era does this still apply?
LIST OF PARTIES
All parties appear in the caption of the case on the cover page.
TABLE OF CONTENTS
INDEX TO APPENDICES.................................................................................. 5
TABLE OF AUTHORITIES CITED.................................................................. 5
OPINIONS BELOW............................................................................................ 8
JURISDICTION..........................................................................
CONSTITUTIONAL PRO VISIONS INVOLVED............................................. 9
STATEMENT OF THE CASE.............................................................................. 9
REASONS FOR GRANTING THE WRIT.................................
CONCLUSION...........................................................................
INDEX TO APPENDICES
APPENDIX A
Boulder County District Court, Colorado
Case No. 2010
Crim. P. 35(c) Collateral Post-conviction Motion
10
APPENDIX B
Colorado Court of Appeals
2022 Colo. App. LEXIS 1870
Case No. 2021CA0395
APPENDIX C
Federal District Court for Colorado
1:24-cv-00799-LTB-RTG
28 USCS § 2254
APPENDIX D
United States Court of Appeals for the Tenth Circuit
Case No. 24-1471
Motion for Certificate of Appealability
APPENDIX E
Colorado Medical Practice Act
ATTACHMENTS
documents submitted with habeas petition relevant to
questions raised
TABLE OF AUTHORITIES CITED
Bordenkircher v. Hayes, 434 U.S. 357, 363, 98 S. Ct. 663, 54 L. Ed. 2D 604
(1978)***11,12, 14,
Colorado State Board of Medical Examiners v. District Court of El Paso County, et
al. 138 Colo. 227; 331 P.2d 502; 1958 Colo. LEXIS 195, 1958,***11, 13, 18
Colorado State Bd. OfMedical Examiners v McCroskey, 940 P.2d 1044, 1048,
***24, 33
Davis v United States 417 US 333***2, 13, 16,
Herrera v Collins 506 US 390, 404, 113 SCT 85328, ***2, 14, 16
Haines v Kerner, 404 U.S. 519,***10
Hill v United States, 368 US 424, 429***2, 23
Jones v Hendrix 599 US 455*****2,11,13,15
McQuiggin v Perkins, 569 U.S. 383, 401***25
Neder v United States, 527 U.S. 1827, 144 LED2D 35, 46, 119 SCT 1827***36
Perry v Sindermann, 408 U.S. 593, 92 SCT2694, 2697, ***23
5
People v Carbajal, 198 P.3d 102, (Colo. 2008)***36
People v Prophet, 42 P.3d 61, 62***73, 75
Prouty et al. v. Heron, 255 P2d 755,*** 18, 24, 27, 32, 33, 34
Rowe v. People, 856 P.2d 486 (Colo. 1993). ***18
SchlupvDelo, 513 US 298 *** 15, 16
United States v Goodwin, 457 U.S. 368, 372, 102 SCT 2485***20, 21, 23, 25, 35
United States v Jackson, 390 US 570,***29
United States v Lanier, 520 US 259, 267-268, n 6, 137 L Ed 2d 432, 117 S Ct
1219 (1997))***28
STATUTES AND RULES
The Colorado Revised Statutes
Medical Practice Act (MPA) (see Appendix E)
§§ 12-240-101, et seq. C.R.S.
§ 12-240-102 Legislative declaration:
§ 12-240-117(3) Licensing
§ 12-240-121. Unprofessional conduct - definitions.
§ 12-240-125. Disciplinary action by board - rules.
§ 12-240-135. Unauthorized practice - penalties - injunctive relief.
Colorado Criminal Code
§ 18-1-104. "Offense" defined - offenses classified - common-law crimes
abolished; (3) ... no conduct shall constitute an offense unless it is described as an
offense in this code or in another statute of this state.
Title 24 Government - State
§ 24-1-122, Administrative Organization Act; (m), (I) Colorado Medical Board is
an “agency,” under Department of Regulatory Agencies.
§ 24-4-106. Judicial review. (1) In order to assure a plain, simple, and prompt
judicial remedy to persons or parties adversely affected or aggrieved by agency
6
actions, the provisions of this section shall be applicable. (2) Final agency action
under this or any other law shall be subject to judicial review as provided in this
section. [District Attorneys are not “adversely affected or aggrieved” parties.]
Title 20 District Attorneys;
§ 20-1-102. Appear on behalf of state and counties. (1), (a) In all indictments,
actions, and proceedings which may be pending in the District Court in any county
within his District wherein the state or the people thereof or any county of his
District may be a party; [but are not parties to actions by the BME].
Title 13 Courts
§ 13-25-106. judicial notice of laws of other jurisdictions. (1) Every Court of this
state shall take judicial notice of the common law and statutes of every state,
territory, and other jurisdiction of the United States.
Unites States Service Code
28 USCS§ 2243*** 21, 32
28 USCS§ 2244(d). ***21, 34
Colorado Constitution
Article 111***32,33 .
Article VI§ 9(1)* **26, 33
Court Rules of Colorado
Crim. P. 35(c)*** 12
Federal Rules
Civil Procedure Rule 57*** 14
Habeas Corpus, Rule 12***31
7
IN THE
SUPREME COURT OF THE UNITED STATES
PETITION FOR WRIT OF CERTIORARI
Petitioner respectfully prays that a writ of certiorari issue to review the judgment
below.
OPINIONS BELOW
For cases from the federal courts:
The opinion of the United States Court of Appeals appears at Appendix D to
the petition and is
reported at 2025 U.S. App. LEXIS 18112
The opinion of the United States district court appears at Appendix C to
the petition and is reported at Case No. 1:24-cv-00799-LTB-RTG
For cases from the state courts:
The opinion of the highest state court to review the merits appears at
Appendix B to the petition and is reported at 2022 Colo. App. LEXIS 1870
Case No. 2021CA0395
The opinion of the Boulder County District court appears at Appendix A to the
petition and is reported at Case No. 2010CR1900
JURISDICTION
For cases from the federal courts:
The opinion of the United States Court of Appeals decided the case and
Denied Motion for Certificate of Appealability, July 22, 2025.
[X] A timely petition for rehearing was denied by the United States Court of
Appeals on the following date: September 8, 2025, and a copy of the order
denying rehearing appears at Appendix D
The jurisdiction of this Court is invoked under 28 U. S. C. § 1254(1).
CONSTITUTIONAL PROVISIONS INVOLVED
U.S. Constitution, amendment 4, Probable Cause/Reasonable Seizures
U.S. Constitution, Amendment 5, Criminal actions—Provisions concerning—Due
process of law and just compensation clauses.
U.S. Constitution, Amendment 6, Rights of the accused.
U.S. Constitution, Amendment 14, Section I.
STATEMENT OF THE CASE
June 24, 2011: People’s Notice; the prosecution postulated their theory of
culpability: The conduct of the medical intervention was to be discredited as “nonbona fide” by the testimony of C.R.E. 404(b) hearsay lay witnesses alleging un
charged “prior bad acts.” (Case 2010CR1900, Court File pgs. 128-129)
August 12, 2011: Minute Order-District Court. Summary of Court’s
reasoning following a motions hearing. The Court adopted the prosecutions
position of using hearsay testimony to determine a “valid medical intervention.”
(CF pgs. 213-221)
June 15, 2012 case number 2010CR1900, petitioner was convicted of count
1) § 18-6-401 (1 )(a), (7)(a)(iii) Child abuse knowingly or recklessly inflicting a
serious bodily injury and count 2) § 18-3-405.3, Sexual assault on a child by one in
a position of trust, pattern of abuse. Sentence, Count. 1: ten years, count 2: twelve
years to life. These convictions were challenged in direct appeal (case number not
known); convictions affirmed, certiorari denied. The convictions were also
<
X
challenged in collateral post-conviction appeals, 2021CA0059 and 2021CA0395,
both denied as was certiorari review of each. (See application pg. 7)
REASONS FOR GRANTING THE WRIT
I was prosecuted and punished for conduct that is not criminal but is
statutorily authorized and sanctioned devoid of any criminal liability.
The petitioner in this case is not an attorney or skilled in the practice of law
and pursuant to Haines v Kerner, 404 U.S. 519, respectfully request that this
Honorable Court, liberally construe this petition and apply any applicable law
irrespective of whether the pro se litigant has mentioned it by name.
The facts are undisputed.
As a licensed physician and co-custodian of his son KZF, Dr. Frantz
performed the medical procedure of cryosurgery at his son’s request to treat
the cluster of warts on his left wrist. To obtain the desired results of a cure,
Dr. Frantz used a compressed air cleaning device as the freezing vehicle for
inducing the necessary tissue destruction. The required therapeutic tissue
destruction produced the intermediate effect of a second degree bum. The
health benefit of the treatment was the cure of the pathological condition of
warts.
As a licensed physician my substantive right and privilege to practice
medicine as I determine proper by the application of my professional qualifications
and experience is inviolate absent an exclusively jurisdictional adjudication by the
Colorado State Board of Medical Examiners (BME) to the contrary. No court has
io
<.
i
the authority to deny, modify, or abridge this right nor to prosecute such authorized
medical conduct as criminal, (See Prouty v Heron, infra).
THE CONTROLLING PRECEDENTS:
Supreme Court of the United States
Bordenkircher v. Hayes, 434 U.S. 357, 363, 98 S. Ct. 663, 54 L. Ed. 2D 604
(1978) held, "To punish a person because he has done what the law plainly allows
him to do is a due process violation of the most basic sort, and for an agent of the
State to pursue a course of action whose objective is to penalize a person's re
liance on his legal rights is 'patently unconstitutional.'" (internal citations omit
ted) Such government actions constitute "exceptional circumstances."
Jones v Hendrix, 599 U.S. 455, 486, (Claims of innocence grounded in
substantive law are cognizable under habeas corpus.)
Colorado Supreme Court:
Colorado State Board of Medical Examiners v. District Court of El Paso
County, et al. 138 Colo. 227; 331 P.2d 502; 1958 Colo. LEXIS 195, 1958, A
district court did not have jurisdiction to prohibit the State Board of Medical
Examiners, a branch of the executive department, from carrying out its statutory
functions, one of which was to grant or revoke licenses to practice medicine.
Disposition:
Rule Made Absolute.
Colorado Court of Appeals:
People v Prophet, 42 P.3d 61, 62, in substantive matters, a statutory
enactment prevails over a conflicting supreme court rule*** Substantive law has
been defined as the positive law that creates, defines, and regulates the rights and
duties of the parties.
ERRORS IN JUDICIAL RULINGS:
10th Circuit Court of Appeals
Frantz v Stancil, 2025 U.S. App. LEXIS 18112 (unpublished)
11
Key Legal Holding; Mr. Frantz failed to establish actual innocence as a gateway to
overcome the statute of limitations because his arguments went to legal innocence
rather than factual innocence and were not supported by new evidence.
Federal District Court of Colorado, see argument below.
Colorado Court of Appeals Case No. 2021CA0395
On Appeal from the District Court's denial of the Crim. P. 35(c) motion.
Pg. 6. “A postconviction court shall summarily deny a Crim. P. 35(c) motion if the
motion was successive. Pg. 8 “Consequently, Frantz is not entitled to relief on
appeal.”
Boulder Count District Court, Case No. 2010CR1900
ORDER Re: Petition For Postconviction Relief Pursuant To Crim. P. 35(C)
Pg. 3 “...the court does not need specific permission from the BME to prosecute
behavior it deems to be a “non-bona fide medical intervention,” and thus not a
protected rendering of medical services under the MPA.”
The Tenth Circuit Court of Appeals blatantly disregards the above
controlling precedence of Bordenkircher and Jones neither acknowledging that
substantive claims of innocence are cognizable under habeas corpus and are solely
questions of law not new evidence; “what the law plainly allows.”
The Federal District Court made these same erroneous legal rulings, see
argument below.
The Boulder County District Court simply disregarded the MPA and the
jurisdiction of the BME over all matters relating to the practice of medicine by
licensed physicians. Judge Mulvahil failed to justify his reasoning with any
supporting citation of authority. Although informed of the controlling statutes of
12
the MPA and the holding in Colorado State Board ofMedical Examiners v.
District Court ofEl Paso County, he was indifferent to the legal effect of these
precedents.
The Colorado Court of Appeals did not acknowledge or address Judge
Mulvahil's 35(c) analysis and his lack of supporting authority. The Appellate Court
analysis was solely one based upon the Crim. P. Rule 35(c) procedures. The
answer brief to this case Appellate Case 2021CA0395), page 29, stated “But
Defendant was not prosecuted in this case for disciplining or licensing issues that
would fall under the purview of the BME.” The Court's judgment on procedural
grounds ignored the indisputable and exonerating substantive law presented for
review.
The paradigm of reviewing courts is heavily biased for the analysis of
procedural errors under the assumption that the substantive issues have all been
resolved at the trial level. The Boulder County District Court, the Colorado Court
of Appeals, the Federal District Court, and the Tenth Circuit Court of Appeals all
succumbed to this assumption in their analysis of the petitioner's substantive
innocence claim. But substantive claims always supersede any procedural
concerns. See People v Prophet, supra, and argument below. Substantive errors are
structural defects in the trial process itself.
13
SUMMARY OF THE ARGUMENT
1) Claims of innocence grounded in substantive law are cognizable un
der habeas corpus. Jones v Hendrix, 599 U.S. 455, 486, quoting Davis v United
States, 417 US 333, 342-347.
2) "What the law plainly allows" Bordenkircher v Hayes, 434 U.S. 357,
363, is recognition of a right given in substantive law. Such infringements are vio
lations of “due process of the most basic sort,” (Id.), constituting constitutional
gravitas. This changes the application of the concept of “mere legal insufficiency”
(Bousley v United States, 523 U.S. 614, 621) cited by the Habeas Court.
3) Substantive innocence are equally qualifying for the exercise of the
Court's equitable authority to review such constitutional claims on their merits
(Amendment 14). Herrera v Collins, “to see that federal constitutional errors do
not result in the incarceration of innocent persons." 506 U.S., at 404, 113 S. Ct.
853, 122 L. Ed. 2D 203.
4) Substantive innocence claims are determination upon questions of law
as the evidence is undisputed. (See, e.g. Davis, FRCP 57). This inquiry in turn
must determine, a) what is the controlling law, b) is the conduct at issue consistent
14
with this law, c) what is the due process established for this determination, and d)
which tribunal has the jurisdiction to conduct the adjudication?
5) Consequences arising from affirmation of the claim; a) the criminal
trial was infected by structural errors, rendering all its actions from the onset a nul
lity, b) it is conclusive of ineffectiveness of trial counsel, c) all prior determina
tions on appellate review are moot as they are premised upon the invalid presump
tion of a legitimate criminal process which it was not, d) relief to be conferred
should be unconditional as there does not exist a viable charging instrument to jus
tify ongoing confinement.
6) As Jones v Hendrix holds that substantive claims of innocence are
cognizable and the reasoning in People v Prophet juxtaposing procedural rules
with substantive law applies in this case. This is not something that any of the
courts presented with the petitioner's claim were willing to defer to, that of sub
stantive innocence supported by the controlling statutes of the MPA. All of their
rulings are strictly procedurally based, none address the substantive law.
A claim of actual innocence grounded upon substantive law, if true, ex
erts a stronger cause for habeas relief than a one of a procedural claim of “probable
is
<-
)
innocence” (Schlup v Delo, 513 US 298). A substantive claim can establish exoner
ation whereas a procedural claim on its own cannot without further proceedings.
It is logically and judiciously incongruent that only procedural claims of
“actual innocence” qualify for the Courts equitable discretion to “open the gate
way” through the Anti-Terrorist and Effective Death Penalty Act (AEDPA) in or
der to adjudicate the constitutional merits raised. One cannot be less innocent be
cause of “probable” innocence (Schlup) alleged by “new evidence” than one who
has committed no criminal act (Davis'). It is also incongruent with the 14th Amend
ment of equality under the law.
The paramount fundamental inquiry for the analysis for habeas relief is
that of a ’’fundamental miscarriage of justice exception... to see that federal consti
tutional errors do not result in the incarceration of innocent persons." Herrera v
Collins, at 404. Both Davis and Bordenkircher establish the Federal constitutional
errors in the punishment of non-criminal conduct.
The fundamental question here is that of actual innocence. Schlup v
Delo. 513 U.S. 298, provides a template to determine that question in the context
of a procedural “new evidence” claim but not in the context of a substantive claim.
16
The instant case provides another dimension to cognizable substantive
actual innocence claims, that of conduct that is not only condoned but necessarily
encouraged for the health, welfare, and benefit to society, (See CRS § 12-240-102,
Legislative Declaration to the Colorado Medical Practice Act (MPA.) The unique
characteristics of the instant case have not been previously encountered by this
Court.
The claim put forth through all of the petitioner's pleadings in the Col
orado and Federal courts is that the conviction and punishment are in clear and di
rect violation of his constitutional substantive right to practice medicine as autho
rized by the Colorado Medical Practice Act (MPA); CRS § 12-240-101, et seq.
Any punishment that violates prescriptive substantive rights and substan
tive law through a criminal prosecution is inherently flawed by structural errors not
the least of which is that of an absence of general and subject matter jurisdiction in
the adjudicating criminal court.
All of the courts below, Colorado and Federal, failed to acknowledge the
cognizability of this violation of substantive law and substantive rights. Nor did
they acknowledge the intrinsic miscarriage of justice therein.
ASSERTIONS
17
<
1
1) The MPA is administrative law per Titles 12 and 24 of the Colorado
revised statutes. As expressions of the legislature's police power, they are substan
tive law and they fall under the jurisdiction of the Executive Department of the
State.
2) The Office of the District Attorney has no prosecutorial authority over
the provisions of the MPA, see CRS § 20-1-102. Nor to declare any act of the
practice of the authorized practice of medicine by a licensed physician as “non-
bona fide” with innate criminal liability. “The power to define criminal conduct
and to establish the legal components of criminal liability is vested with the general
assembly." Rowe v. People, 856 P.2d 486 (Colo. 1993), United States v Lanier,
520 US 259, 267-268.
3) The District Court has no subject matter jurisdiction over the provi
sions of the MPA, nor to any adjudication of the allegations made by the prosecu
tor of a “non-bona fide medical intervention.” See Colo. St. Bd. OfMed. Examin
ers. v District Court, 331 P.2d 502 (infra).
4) The courts only have appellate jurisdiction over the ’’final actions” of
BME decisions, see CRS § 20-4-106.
18
5) The BME has sole and original jurisdiction to define, enforce and reg
ulate the MPA, 331 P.2d @ 504.
6) CRS § 12-240-117(3) the authorized practice of medicine is not a pe
nal statute. There is no criminal liability associated with unprofessional or substan
dard medical practice. See CRS § 18-1-1042.
7) CRS § 12-240-117(3) creates a substantive right for licensed physi
cians which is constitutionally protected, see Prouty et al. v. Heron, 255 P2d 755
(infra).
The Implications Are:
One) the reviewing court is obligated to accept the plaintiffs claims as
true unless they are disputed by the opposing party or are on their face absurd. As
statements of objective law neither contravention can be true.
Two) in neither the respondent's “reply” nor the Magistrate's report and
recommendation did either party address or attempt to dispute the inherent veracity
of these legal assertions as expressed and delineated in the petitioner's application.
2 Common-law crimes are abolished and no conduct shall constitute an offense unless it is described as
an offense in this code or in another statute of this state,
19
t
Three) as Bordenkircher v Hayes (supra) so clearly articulates, that the
punishment for doing what the law plainly allows is a due process violation of the
most basic sort. The judicial inquiry for an assertion such as the petitioner's sub
stantive claim need go no further than to verify the existence of the law that allows
the conduct at issue. The very absence of addressing the petitioner' claims by the
Colorado Courts to this fundamental constitutional right as to what the law plainly
allows magnifies and perpetuates this implicit due process violation as held in Bor
denkircher and the miscarriage of justice criteria held in Herrera.
ARGUMENT
Substantive Actual Innocence
Substantive as presented in this pleading is that which Davis v United States
holds, [is when] a conviction and punishment are for an act that the law does
not make criminal***[which] "inherently results in a complete miscarriage of
justice"and "presents] exceptional circumstances" ( 414 U.S. @ 346).
Bordenkircher v. Hayes, 434 U.S. @ 363 held, “To punish a person be
cause he has done what the law plainly allows him to do is a due process violation
20
of the most basic sort,” Such government actions constitute “exceptional circum
stances.”
A substantive right can be conferred in a prescriptive statute. The con
trolling features lies in the nature of the subject matter and the jurisdiction for adju
dication. Prescriptive statutes do not fall in the class of criminal subject matter. In
the case of a prescriptive right a substantive actual innocence claim is not proce
dural, it is solely a question of law.
Bordenkircher extends substantive law and rights to prescriptive statutes
like the MPA by the inclusion of “what the law clearly allows.” It is further de
fined in United States v Goodwin,
“For while an individual certainly may be penalized for violating the law, he
just as certainly may not be punished for exercising a protected statutory or
constitutional right.” [Internal citations omitted.] 457 U.S. 368, 372, 102
SCT 2485.
Rights conferred by the statutes of the MPA fall squarely within these
axioms of law.
While both of these cases {Bordenkircher and Goodwin) can be distin
guished by fact from the instant case, the above statements are axiom of law that
apply at all time in all circumstances when asserting ones liberty interests and con-
21
stitutional rights conferred in substantive law. It is in this context that these cases
support the one at bar.
The edict given in Herrera v Collins, 506 US @ 404, obligates the Court
to adjudicate habeas claims with the focus on the potential of a miscarriage of jus
tice:
“This rule, or fundamental miscarriage of justice exception, is grounded in the
"equitable discretion" of habeas courts to see that federal constitutional errors do
not result in the incarceration of innocent persons.”
Claims of substantive actual innocence must be determined upon their
merits in order to meet Herrera's miscarriage of justice obligation. To not do so is
to court the possible failure to correct such a miscarriage and incarceration of an
innocent person.
The simplicity of substantive law claims is that, if true, the establishment
of a miscarriage of justice is met. Secondly, all substantive law claims necessitate a
summary judgment as there is no evidentiary dispute and the resolution is a ques
tion of law. This makes 28 USCS § 2243 controlling over § 2244(d). This in itself
distinguishes and excludes the analysis from the procedural issue presented as the
criteria and standards of Schlup v Delo.
22
Identifying the nature of the law leads to two questions; one, what is the
subject matter context and two, which tribunal has jurisdiction to make the primary
determination? Prescriptive statutes are by definition of a civil nature, but in the in
stant case they are of administrative law, therefore a criminal trial court is devoid
of subject matter jurisdiction to adjudicate these administrative issues in a criminal
proceeding. This question of the prescriptive substantive right of licensed physi
cians is independent of the jurisdiction of a criminal trial court.
Magistrate Judge, the Honorable Richard T. Gurley, made the following
conclusion in his report and recommendation to the District Court: “Plaintiffs un
supported argument that a court need not apply the 'new evidence' standard set
forth in Schlup to the assertion of actual innocence as an equitable exception to the
one-year limitation period is unavailing. The Court has located no authority pro
viding an alternative standard” (pg. 11).
Importantly to this incomplete analysis by the magistrate is that of the
holding in Jones v Hendrix, 599 U.S. @ 486 establishing substantive innocence
claims as cognizable under habeas corpus law; clearly not recognized by the Mag
istrate Judge.
23
Additionally, the Court seemingly did not recognize or acknowledge the
inclusion of Bordenkircher v Hayes, 434 U.S. 357, 98 S.Ct. 663, United States v
Goodwin, 457 U.S. 368, 372, 102 SCT 2485, or Perry v Sindermann, 408 U.S.
593, 92 SCT 2694, 2697 in the habeas petition (pg.6) as relevant or supportive of
the petitioner's assertion. Nor does it seem that the Court considered the holding in
Davis v United States, 417 U.S. 333 as case law not relying upon the “new evi
dence” standard of Schlup in the consideration of substantive actual innocence
claim, one incorporating “exceptional circumstances.” That a substantive actual in
nocence claim is asserted in the petition is undeniable. It is the only “actual inno
cence” claim asserted.
This posture by the District Court would be dismissive of all substantive
actual innocence claims, a position that is not defensible. As the instant case seems
to be a post-AEDPA case of first impression invoking a substantive actual inno
cence claim, perhaps the Magistrate can be excused for his limited understanding
and application to the concept of substantive innocence claims. It does not however
make his conclusion judicially correct.
Davis v United States, 417 US 333, 346, (1974); the appropriate inquiry
was whether the claimed error of law was "a fundamental defect which
inherently results in a complete miscarriage of justice," and whether
"[i]t... presents] exceptional circumstances where the need for the
24
remedy afforded by the writ of habeas corpus is apparent." (Hill v United
States, 368 US 424, 429)
The MPA is the controlling law defining the petitioner's medical con
duct. It is not a penal statute, but a prescriptive one that confers a substantive right
to practice medicine only circumscribed by the Colorado Medical Practice Act
(MPA) and the Board of Medical Examiners' (BME's) authority to adjudicate,
(BME v McCroskey, infra).
The controlling statutes are prescribed enabling ones which is protective
against any charge of criminal conduct for any authorized medical conduct. (See
Practice of Medicine Argument, below)
Only the BME has the sole and original jurisdiction to interpret and ap
ply these statutes to the medical conduct at issue (BME v DC, supra, and BME v
McCroskey, infra). The Courts of Colorado are limited to appellate jurisdiction
(initiated by a party aggrieved by a final action of the BME: CRS § 24-4-106).
They have no jurisdiction to make determinations of the bona fides of licensed
physicians to the MPA or in anyway abridge or deny their right to practice (Prouty
y Heron, infra).
25
The habeas court overlooked the established res judicata of Colorado ju
risprudence that incontrovertibly establishes the MPA as the controlling law appli
cable to the adjudication of the conduct at issue.
The substantive law of Colorado and the state's res judicata unequivo
cally establishes that it is constitutionally, statutorily, and factually impossible to
uphold the petitioner's criminal conviction founded upon the petitioner's authorized
practice of medicine conduct. The trial court cannot resolve these “exceptional cir
cumstances” in the criminal proceedings without running afoul of Davis, Bordenkircher, and Goodwin and his substantial constitutional rights.
Prosecuting non-criminal conduct results in a “complete miscarriage of
justice,” and “a fundamental defect” which fully meets all the cognizable criteria
for habeas review and relief. Equitable discretion is equally applicable to substan
tive claims of innocence to open the “gateway” through AEDPA.
Indisputably, conduct that the law does not make criminal, let alone this
prescribed law that authorized the specific conduct at issue, exceeds the require
ment of “evidence of innocence so strong,” McQuiggin v Perkins, 569 U.S. 383,
401 and is prima facia that of a “trial [not] free of nonharmless constitutional er-
26
ror," Schlup, 513 U.S.,at 316, and is unequivocally “what the law plainly allows,”
(Bordenkircher). It is the controlling law that no court can rebut or deny.
PRACTICE OF MEDICINE
The petitioner's substantive actual innocence claim has been unwavering
assertion that the criminal prosecution and conviction was illegally and unconstitu
tionally contrived from an act that unequivocally constitutes the authorized prac
tice of medicine by a licensed physician.
The controlling law is the Colorado Medical Practice Act (MPA), CRS §
12-240-101, et seq. These laws fall under the jurisdiction and control by the execu
tive department of the state government in the ambient of “administrative law,” not
jurisdictionally empowered by the Colorado Constitution, Article VI § 9(1);3 the
district courts shall be trial courts of record with general jurisdiction, and shall
have original jurisdiction in all civil, probate, and criminal cases, except as other
wise provided herein, and shall have such appellate jurisdiction as may be pre
scribed by law Article VI § 9 and Title 24 Colorado Revised Statutes. The only rel-
3 The district courts shall be trial courts of record with general jurisdiction, and shall have original
jurisdiction in all civil, probate, and criminal cases, except as otherwise provided herein, and shall have
such appellate jurisdiction as may be prescribed by law.
27
evant regulatory statutory provision is the authorized practice of medicine (CRS §
12-240-117(3),
All holders of a license to practice medicine granted by the board, or by the
state board of medical examiners as constituted under any prior law of this
state, shall be accorded equal rights and privileges under all laws of the
state of Colorado, shall be subject to the same duties and obligations, and
shall be authorized to practice medicine, as defined by this article 240 in all
its branches.
This confers the substantive right to practice medicine upon qualified in
dividuals. This statute eschews any criminal liability for any medical conduct com
pliant with the MPA of a physician holding an active license to practice. This sub
stantive right has been upheld by the Colorado Supreme Court as also constitution
ally protected by the due process clauses of both the Federal and State constitu
tions.
Prouty v Heron, 255 P2d 755, March 9, 1953'.
First: Is the right to practice a profession, once legally granted, within the rights
protected by the Constitutions of the United States and of the State of Colorado,
which provide that no person shall be deprived of life, liberty or property without
due process of law?
This question is answered in the affirmative.
The MPA specifically falls under the jurisdiction and control of the Col
orado State Board of Medical Examiners (BME); CRS § 12-240-106. See Colo. St.
Bd. ofMed. Exmn’r. v District Court, (BME v DC) 331 P.2d 502 (1958).
28
By law, therefore, the sole original jurisdiction to grant or revoke licenses to
practice medicine in compliance with the regulatory provisions of such
statute is vested in the State Board of Medical Examiners.** *sole and
exclusive original jurisdiction.
The substantive due process accorded licensed physician with respect to
their practice of medicine under the MPA is given to the BME under CRS § 12-
240-125, Only the BME can revoke this right and only the BME can make the
necessary determinations whereby this action is required, (331 P.2d @ 504).
This enabling statute incorporates within it the presumption that the med
ical conduct of licensed physician is acting a priori in accordance with this autho
rization.
There is no presumption that non-compliance with § 12-240-117(3) in
herently creates any criminal liability (see CRS § 18-1-104(3))4 Compliance to the
MPA is an absolute contravention to criminal liability. Criminal liability only at
taches when proscriptive statutes specifically define a prohibited medical activity
or procedure, (See, e.g. United States v Lanier, 520 US 259, 267-268, n 6, 137 L
Ed 2d 432, 117 S Ct 1219 (1997)). Section 117(3) states this responsibility and
consummate liabilities.
4 (3) Common-law crimes are abolished and no conduct shall constitute an offense unless it is described
as an offense in this code or in another statute of this state***
29
The same act cannot be both lawful and unlawful. That is the essence of
the Court's holding in United States v Jackson, 390 US 570, cited in Bordenkircher
v Hayes.
This statute that confers the substantive right to practice medicine neces
sarily establishes that all medical conduct which is not specifically prohibited in a
proscriptive statute is a priori “authorized.” By definition if such an act is defined
as the practice of medicine in the MPA, even if the quality of that medical practice
is substandard or unprofessional, it is never-the-less “authorized” and lawful.
To have it otherwise, that is to make substandard or unprofessional medi
cal acts criminal would defeat the very raison d'etre of the Act. It would chill the
very beneficial conduct the Act proposes to encourage and endorse for society. For
a physician to be tenuous about possible criminally liable for allegations of sub
standard or unprofessional practice would introduce great hesitation in the provi
sion of medical care. This is why there does not exist any general criminal statute
defining “non-bona fide medical interventions” only ones that prohibit with great
specificity those medical interventions that are prohibited.
Jurisdiction, analysis, and adjudication of the provisions of the MPA's
prescriptive statutes and rights (i.e. the “authorized practice of medicine”) differ
30
from that of criminal ones. By statute and constitutional grounds the specific due
process procedures and tribunal jurisdiction over the MPA is distinct and not inter
changeable with courts of law.
The only criminal liability established within the MPA is CRS § 12-204135 concerned with the practice of medicine without a valid license. Non-compli
ance with the MPA by licensed physicians creates no per se criminal liability.
In the context of the authorized practice of medicine by a licensed physi
cian, no adverse action can be taken without a due process hearing by the BME,
(331 P.2d @ 504). The BME can only condemn “improper” or “unqualified” (i.e
non-professional) medical acts. It cannot declare any medical conduct illegal. It
can only refer for prosecution to the Office of the Colorado Attorney General that
which is potentially prohibited, (§ 12-240-125 (d)).
APPLYING THE MPA
The law (§ 12-240-117(3)) is clear and unambiguous. Under Colorado
law (CRS § 13-25-106) the courts “shall” take judicial notice of this law. They are
obligated to defer to its contours and jurisdiction. This the courts did not do.
The habeas court failed to proceed with this substantive innocence claim.
The habeas court failed to apprehend substantive right conferred upon the peti31
tioner by the application of the MPA to the substantial innocence claim. Addition
ally the habeas court failed to recognize that the only Colorado tribunal with the ju
risdiction to adjudicate the medical conduct of a licensed physicians is the BME
and not the trial court of Boulder County, Colorado. [BME v DC, supra).
Both the respondent and the magistrate raised the proper question of law
pertinent to a correct analysis of the petitioner's actual innocence claim, but failed
to address it; (as found on pg 12) “[H]ow to properly apply the Colorado Medical
Practice Act is a legal argument not a factual showing.”
Questions of law are cognizable under habeas corpus (Rule 12 and §
2243) and affirmed by the Supreme Court [Jones v Hendrix, supra). Such a deter
mination of this question of law would establish the innocence of the petitioner.
The MPA is the law that habeas court and the respondent choose to dismiss with
out justification, authority, or addressing the merits.
PRESIDENTIAL COLORADO RES JUDICATA
Federal courts under comity should defer to the jurisprudence of state
courts. The habeas court failed to defer to this comity and therefore to understand
the significance of the controlling statutes of the MPA and the supporting Colorado
32
jurisprudence, Prouty et al. v. Heron, supra and Colo. State Board ofMedical Ex
aminers v District Court (BMEv DC), 138 Colo. 227,331 P.2d 502 (1958):
“It is well established that the General Assembly has power to enact laws
regulating the practice of medicine, and in so doing may create within the
Executive Department a board empowered to administer and enforce such
laws,***”
The BME and not the courts nor the district attorneys, has the exclusive
sole and original jurisdiction in the legal question of how to properly apply the
MPA. Only the BME not the trial court can determine what constitutes a “valid
medical intervention” (Court's characterization), The undisputed facts that the
state wishes to prosecute as a criminal offense is prima facie and a priori the au
thorized practice of medicine and is not defined as an offense in any criminal
statute ( CRS § 18-1-104, Rowe v People, supra). The trial court does not have the
authority to adjudicate this particular subject matter.
The trial court usurped the jurisdiction of the BME to adjudicate the is
sue of a “valid medical intervention.” This is both a de facto and de jure direct in
terference with the statutory and constitutionally authority and mandate of the
BME ( CRS § 12-240-102) and as upheld by the Colorado Supreme Court, 331
P.2d @ 504. It violates of the separation of powers doctrine, (Art III, Colorado
Constitution).
33
Colorado State Bd. OfMedical Examiners v McCroskey, 940 P.2d 1044,
1048,
“Accordingly, once a person engages in the "practice of medicine" and is
not otherwise exempt pursuant to § 12-36-106 [now § 12-240-107], that per
son is subject to the authority of the Board and that person's conduct must
conform with all of the statutory sections and administrative rules and
regulations the board implements***”
The enabling statute creates the substantive and constitutional right for
licensed physicians, (Prouty). The necessary presumption is that all licensed physi
cians are comporting with this statute until and unless the BME determines other
wise, "after due notice and a fair and impartial hearing” (Prouty). No court of law
can deny or abridge this constitutional right or render any determination of the
compliance of a licensed physician to the MPA. (Colorado Constitution Art. Ill, VI
§ 9, Prouty, BME v DC, supra.)
The petitioner's medical intervention is the subject matter the character
of “conduct the law does not make criminal” (Davis)’, it is prescribed lawful con
duct which imparts a priori prima facie substantive actual innocence prohibiting
criminal liability and criminal prosecution, it is “what the law plainly allows.”
As presented above, the Colorado Court of Appeals, even with the con
trolling law presented in the answer brief, failed to address this controlling substan-
34
<<
tive law; answer brief, page 29, “But Defendant was not prosecuted in this case for
disciplining or licensing issues that would fall under the purview of the BME.”
Any medical conduct either not reviewed by the BME or not sanctioned
for it, is necessarily that of the “authorized practice of medicine.” The court of Ap
peals inexplicably failed to recognize this concession let alone address it, a failure
of due process and equal protection (Amendment 14).
The right to practice medicine is conferred by substantive law. This
makes it a cognizable claim under habeas corpus. The MPA is the controlling law
with respect to “what the law allows.” (Bordenkircher). Deprivation of this sub
stantive right without the required due process is indicative of a violation of the pe
titioner's constitutional rights, (Id., Prouty v Heron, supra).
SUMMARY
The habeas court erred, first by the failure to recognize substantive inno
cence claims as cognizable, second by failing to recognize that this claim was one
of a question of law equally cognizable and for which any “new evidence” is irrel
evant to its adjudication. Third, that these overlooked substantive claims justify the
application of the court's equitable authority to adjudicate the inherent constitu
tional claims on the merits thereby bypassing the limitations of 28 USCS §
35
2244(d). Fourth, the habeas court made no attempt to comply with the duty of
comity and federalism by recognizing the res judicata of Colorado jurisprudence
bearing directly and irrefutably upon the petitioner's substantive claim.
Any process that allows for the punishment of a statutory and constitu
tional protected activity (See e.g. United States v Goodwin, supra) is one that is
structurally deficient and never harmless.
OTHER CONSTITUTIONAL STRUCTURAL ERRORS
A) Vindictive Prosecution
1) United States v Goodwin, 457 U.S. 368, 102 S.Ct. 2485, 73 LED2D 74, 76,
Held, (a) In cases in which action detrimental to a defendant has been taken
after the exercise of a legal right, the presumption of an improper vindictive
motive has been applied only where a reasonable likelihood of
vindictiveness existed, (internal citations omitted) @ 373; The presence of a
punitive motivation, therefore, does not provide an adequate basis for
distinguishing governmental action that is fully justified as a legitimate
response to perceived criminal conduct from governmental action that is an
impermissible response to noncriminal, protected activity. Motives are
complex and difficult to prove. As a result, in certain cases in which action
detrimental to the defendant has been taken after the exercise of a legal right,
the Court has found it necessary to "presume" an improper vindictive
motive.
2) Bordenkircher v Hayes, 434 U.S. 357, 98 S.Ct. 663, 669 (1978), Vindictive
prosecution that penalizes a defendant for exercising his or her constitutional
rights is a denial of due process.
B) Structural Defects-defined
36
3) Neder v United States, 527 U.S. 1827, 144 LED2D 35, 46, 119 SCT 1827,
from the constitutional violations we have found to defy harmless-error
review... Those cases, we have explained, contain a "defect affecting the
framework within which the trial proceeds, rather than simply an error in the
trial process itself." Fulminante, supra, at 310, 113 L Ed 2d 302, 111 S Ct
1246. Such errors "infect the entire trial process," Brecht v Abrahamson,
507 US 619, 630, 123 L Ed 2d 353, 113 S Ct 1710 (1993), and "necessarily
render a trial fundamentally unfair," Rose, 478 US, at 577, 92 L Ed 2d 460,
106 S Ct 3101. Put another way, these errors deprive defendants of "basic
protections" without which a criminal conviction is not reliable.
C) Absence of Jurisdiction
4) Ex Parte Frederich, 149 U.S. 70, “Habeas corpus should be limited to cases
in which the judgment or sentence attacked is clearly void by reason of its
having been rendered without jurisdiction, or by reason of the Court's having
exceeded its jurisdiction.
5) People v Carbajal, 198 P.3d 102, (Colo. 2008), A trial Court exceeds its
jurisdiction not only when it acts without general jurisdiction, but also when
it acts with general jurisdiction but contrary to statute.
Any conviction for conduct “that the law clearly allows” is “patently
unconstitutional.” (434 U.S. @ 669) Such a conviction violates Amendments 4, 6.
and 14 (and possibly 8). No criminal trial proceeding contrived upon such a
premise is legitimate nor can it be jurisdictional. Necessarily, it is a contradiction
of the Fourth Amendment to be either “reasonable” or based in probable cause.
37
CONCLUSION
For the reasons previously listed, the Petition for a writ of certiorari should
be granted.
Respectfully submitted this 5th day of December, 2025, and corrected petition re
submitted this 31st day of December, 2025
Signature
James E. Frantz, Pro-£k
38
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.