A federal judge on Monday warned former Mesa County clerk Tina Peters that her request to be released while she appeals her 2024 criminal convictions appears to be brought improperly and may be subject to dismissal.

Jurors convicted Peters for her role in a security breach of her office’s voting equipment. She is currently serving a nine-year sentence of incarceration. While the state’s Court of Appeals reviews her conviction, Peters has filed a federal petition for “habeas corpus,” a legal tool used to challenge one’s confinement. Specifically, Peters is seeking to be released on bond while her appeal moves forward in state court.

In a May 5 order, Chief U.S. Magistrate Judge Scott T. Varholak identified a problem with the petition. Peters alleged the state courts improperly denied her motion for bond, citing a violation of her First Amendment speech rights, her right to due process and her alleged immunity from carrying out duties required by federal elections law.

Federal courts cannot grant habeas petitions, wrote Varholak, unless the petitioner has “fairly presented” her issues to the state courts. While Peters did raise her First Amendment claim to the Court of Appeals when seeking bond, Varholak believed she did not present her other arguments for consideration.

“Thus, the Application contains both unexhausted and exhausted claims, which renders it a ‘mixed petition,'” wrote Varholak. And “this Court may not adjudicate an application containing both exhausted and unexhausted claims.”

He presented several options to Peters, such as proceeding in federal court only on her claim of a free speech violation or dropping her petition and refiling it after one year.

Varholak gave Peters 30 days to respond to his order.

In doing so, Varholak sidestepped an issue that eclipsed Peters’ original request for relief. 

In March, the U.S. Department of Justice unexpectedly inserted itself into the case, filing a statement of interest to claim it was reviewing whether Peters’ prosecution was “oriented more toward inflicting political pain than toward pursuing actual justice or legitimate governmental objectives.”

The Colorado Attorney General’s Office, which is litigating opposite Peters, asked Varholak to discard the statement entirely, or at least strike the portion alleging political motivations. The office argued it was unprecedented for the Justice Department to claim an interest in a state criminal defendant’s habeas case, and characterized the filing as an act of intimidation on behalf of an ally to President Donald Trump.

Varholak asked the parties to research whether he, as a magistrate judge who is neither nominated by the president nor confirmed by the U.S. Senate, even had the authority to strike the government’s filing. Last week, he received their responses, which were inconclusive.

In noting that Peters’ petition is not viable in its current form, Varholak turned down Colorado’s request to discard the Justice Department’s statement, writing that the attorney general’s office may raise the issue again if the case moves forward.

Around the same time as Varholak’s order, Trump posted on social media that he is “hereby directing the Department of Justice to take all necessary action to help secure the release of this ‘hostage,'” referring to Peters.

The case is Peters v. Feyen et al.