NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT OCT 07 2013
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
KARL COLEMAN, No. 12-15779
Petitioner - Appellant, D.C. No. 3:10-cv-04675-THE
v.
MEMORANDUM*
PAM AHLIN,
Respondent - Appellee.
Appeal from the United States District Court
for the Northern District of California
Thelton E. Henderson, Senior District Judge, Presiding
Argued and Submitted September 11, 2013
San Francisco, California
Before: WALLACE and BERZON, Circuit Judges, and ZOUHARY, District
Judge.**
1. This Court reviews de novo whether abstention under Younger v. Harris,
401 U.S. 37 (1971), is required. Potrero Hills Landfill, Inc. v. Cnty. of Solano, 657
F.3d 876, 881 (9th Cir. 2011). The District Court did not err by sua sponte
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Jack Zouhary, District Judge for the U.S. District
Court for the Northern District of Ohio, sitting by designation.
dismissing Coleman’s habeas petition. A state waives Younger only where it
“expressly urged [the federal court] to proceed to an adjudication of the
constitutional merits.” Ohio Civil Rights Comm'n v. Dayton Christian Sch., Inc.,
477 U.S. 619, 626 (1986). Here, although it filed a motion to dismiss based only
on timeliness, the State did not “expressly urge” the District Court to reach the
merits of Coleman’s constitutional claims, and did not waive application of the
Younger doctrine.
The authority cited by Coleman does not compel a contrary conclusion. In
McNeely v. Blanas, 336 F.3d 822 (9th Cir. 2003), we did not discuss abstention
under Younger or any other doctrine, and did not address whether the right to raise
Younger had been waived. And Boardman v. Estelle, 957 F.2d 1523 (9th Cir.
1992), concerned not Younger abstention but waiver of the defense of
nonretroactivity under Teague v. Lane, 489 U.S. 288 (1989). In Boardman, we
considered, but rejected, reliance on an analogy to Younger waiver, while
recognizing that a “state may waive Younger only by express statement, not
through failure to raise the issue.” 957 F.2d at 1535.
2. Coleman argues that Younger does not apply to his pretrial habeas
petition based on a speedy trial claim. He relies primarily on the Supreme Court’s
decision in Braden v. 30th Judicial Circuit Court of Kentucky, 410 U.S. 484
2
(1973). In Braden, however, the petitioner sought “only to demand enforcement of
the Commonwealth’s affirmative constitutional obligation to bring him promptly to
trial,” and had exhausted all available state remedies toward that end. Id. at 489-
90. Placing great weight on the fact that “petitioner made no effort to abort a state
proceeding or to disrupt the orderly functioning of state judicial processes,” and
that he came “to federal court, not in an effort to forestall a state prosecution, but to
enforce the Commonwealth’s obligation to provide him with a state court forum,”
Braden permitted the federal habeas proceeding to go forward. Id. at 491.
In contrast, Younger principles preclude the adjudication of constitutional
speedy trial claims prior to conviction when a petitioner raises “a Speedy Trial
claim as an affirmative defense to state prosecution.” Brown v. Ahern, 676 F.3d
899, 900 (9th Cir. 2012) (citing Carden v. Montana, 626 F.2d 82, 83 (9th Cir.
1980)).
Here, Coleman’s federal habeas petition did not, as in Braden, seek an order
requiring the state courts finally to adjudicate the civil commitment petition under
California’s Sexually Violent Predators Act (“SVPA”). Instead, the petition
alleged that excessive pretrial delay between August 2006 and 2009 in violation of
his constitutional rights “require[s] dismissal” of the petition and his “discharge
3
from unconstitutional confinement.” Coleman’s petition is therefore foreclosed by
Carden and Brown unless he demonstrates that extraordinary circumstances exist.
Extraordinary circumstances, such as prosecutorial harassment or bad faith
prosecution, have not been shown. See Gibson v. Berryhill, 411 U.S. 564, 573-74
(1973); Perez v. Ledesma, 401 U.S. 82, 85 (1971). We “specifically rejected in
Carden the argument that a claimed violation of the Speedy Trial Clause was sui
generis such that it sufficed in and of itself as an independent ‘extraordinary
circumstance’ necessitating pre-trial habeas consideration.” Brown, 676 F.3d at
901 (citing Carden, 626 F.2d at 84).
Finally, to the extent Coleman switched gears in his reply brief and at oral
argument to request a prompt trial in state court rather than dismissal, the record
does not show that Coleman exhausted such a claim. The present record does not
demonstrate that Coleman even objected to the repeated continuances of the trial.
3. Because we affirm the District Court’s application of Younger abstention
to dismiss Coleman’s habeas petition, we do not address the alternative holding
that Coleman is procedurally barred from raising this claim in federal court.
4. Finally, the District Court dismissed Coleman’s petition under Younger
“without prejudice to refiling” only “after SVPA proceedings, including appeal, are
completed.” We vacate, in part, that aspect of the District Court’s judgment. If
4
Coleman were to exhaust properly a Braden-like claim seeking an immediate trial
in state court, and was not granted a prompt trial in state court, he may file another
pretrial federal habeas petition seeking to enforce his speedy trial rights. Such a
pretrial federal habeas petition, like this one, would be brought under 28 U.S.C.
§ 2241(c)(3). See McNeely, 336 F.3d at 824 n.1. It thus would not be subject to
the bar on “second or successive” applications set forth in 28 U.S.C. § 2244, which
only applies to petitions brought under 28 U.S.C. § 2254 by persons being held
“subject to a judgment of a State court.” Accordingly, we vacate the District
Court’s order to the extent that it would prevent Coleman from bringing such a
petition before the state proceedings are final on appeal, and remand for entry of a
judgment of dismissal without prejudice, without any caveat or condition.
AFFIRMED in part, VACATED in part, and REMANDED in part.
Each party shall bear its own costs.
5
FILED
Coleman v. Ahlin, No. 12-15579 OCT 07 2013
MOLLY C. DWYER, CLERK
WALLACE, Senior Circuit Judge, concurring in part and dissenting in part: COURT OF APPEALS
U.S.
I join the majority with respect to its holding that the district court correctly
applied the Younger abstention doctrine. However, I dissent from both the
majority’s decision to vacate one “aspect” of the district court’s order and its
decision to remand this case to the district court. Before the district court and in
his opening brief on appeal, the sole relief sought by Coleman was to be
“discharged from . . . confinement.” Thus, the issue of whether Coleman “may file
another pretrial federal habeas petition seeking to enforce his speedy trial rights,”
in the event that he were to “exhaust properly a Braden-like claim seeking an
immediate trial in state court,” is not before us. Because this issue is not before us,
I would decline to address it. See, e.g., City of Emeryville v. Robinson, 621 F.3d
1251, 1258 n.5 (9th Cir. 2010) (explaining that where a party does not challenge a
district court’s ruling as to an issue in its opening brief, “that issue is not before us
on appeal”).