*1
437
empted
answer
filed no
Younger
Defendants
fendants.
abstention
doctrine.
for the
deny the motion
Erdmann
moved
itself
but
was a case in
plaintiff’s
which
injunction and dismiss the
counsel
preliminary
invoked section
1983 but we
com-
ground
complaint
nonetheless refused to inter
vene in the
upon
a claim
failed to
action.
plaint
any event,
in O’Shea v.
granted.
Littleton,
could
relief
414
488,
U.S.
499,
669,
94 S.Ct.
heard this the same our appeal, and
this affirmance there
(515 (1975)) F.2d 427 affirm compels here. The factual
ance situation in both in all respects,
cases is the same material being distinction that here the
disciplinary proceeding progressed had from the Bar Association to Appel Petitioner-Appellee, MOORE, Albert the time late this action was commenced. DeYOUNG, Warden, Passaic Coun John Appellants raise substantially here Sheriff, Davenport, Jail, ty and Frank presented arguments same Anony- Respondents-Appellants. Bar, suprа, mous v. Association of the effort to avoid the holding of 74-1858. in Erdmann. Since these conten- Appeals, Court of United States fully tions are discussed in opinion our Third Circuit. case, companion repetition is unwar- ranted. 11, 1975. Argued Feb. however, Appellants, do raise 8, 1975. April Decided Anonymous. issue not raised one since They urge that this action is based Rights the Civil Act of
upon subject it is not §
U.S.C. anti-injunction stat
restrictions ute, Younger 28 U.S.C. principle. There is no doubt
abstention action falls with section but Congress” “authorized Act of section 2283. Mitchum v.
exception to
Foster, (1972). However,
L.Ed.2d section 1983 is ex clear that
equally *2 SEITZ, Judge,
Before Chief and AL- GARTH, Judges. DISERT Circuit OPINION OF THE COURT GARTH, Judge. Circuit *3 Moore has been exposed to state court trial in New Jer 1967, sey having since as a result of his charged been with the commission of a January year. crime in of that The se quence of events below ultimate recited ly presents quеstion for resolution: grant Should a federal court a writ of enjoin ongoing proceeding state criminal pe before the titioner has stood trial and before the state courts have ruled on the merits of his claim that a trial has beén denied? The district court answered the questions affirmatively; issued the writ enjoined further state proceedings 21, by its order of June 1974. The re spondent County Passaic ap Prosecutor peals. In resolving questions ap ply important principles two controlling the sensitive area of state-federal rela (1) requirement tions: the normal appellate given courts be the initial opportunity to consider the federal con claim; teaching stitutional 37, Younger Harris, 746, (1971). Despite our distress with the manner in which state law offiсe enforcement proceedings leading has conducted the present prosecution, we nevertheless obliged are to reverse district court and direct that the writ be denied and injunction against vacated.
I. FACTS 6, 1967, complaint February On was Paterson, Jersey, filed in the Mu- New Ness, Defender, Van Public Stanley C. nicipal charging Moore with the Ratliff, Deputy Public De- H. Asst. John rape a female January infant on J., petition- fender, N. for Orange, East investigation, Following er-appellee. police January 1967 sent a tele- County Joseph Gourley, D. J. Passaic Richmond, request type to authorities Prosecutor, Goceljak, Asst. Pros- John P. previously Virginia, where Moore had J., ecutor, Paterson, respondents- N. for worked, notifying them lived appellants. raрe. Moore was wanted for April On Moore was however, arrested procedure, “. . This in Richmond unrelated charge. implemented, apparently was not be- On June Indictment Number handling prosecutor cause assistant 641-66 was returned the Passaic the case left Prosecutor’s Office County Jury, charging Grand continuity and the of the matter with carnal abuse in violation of N.J.S.A. disrupted.” 2A:138 — 1. This indictment was followed (Appellant’s Brief at by a warrant for Moore’s arrest which April Moore wrote anoth- ultimately lodging resulted in the aof County er letter the Passaic Prosecu- detainer on August 1967, against tor in which he demanded that Virg Moore’srelease from confinement in charges against dropped him fail- inia.1 grant Subsequent- ure learned he first claims that prepared ly, Mоore a handwritten “Mo- resulting detainer indictment *4 Dismissal”, August tion for dated parole a board appeared before he when 1969, demanding either that he December On 1968. in December brought Jersey for to New trial or that the to his first letter sent Moore pending against him be the detainer Prosecutor, asking that County Passaic withdrawn. the speedy trial or a given he 7, 1970, May Virginia On the State letter was This be dismissed. indictment the prison authorities Passaic notified “Peti- entitled by a document followed County that Moore com- Sheriff would ap- Moore Trial” which Speedy for tion plete his sentence on June 1970. Ul- County Passaic sent parently timately, Moore was returned to Passaic prompted the “Petition” This Court. 16, 1970, where, County July on Judge to County Assignment Passaic arraigned (charg- on Indictment 641-66 30, 1969, January to letter, a dated send ing abuse) pleaded guilty. carnal and advising County Prosecutor Passaic the to Prior Moore’s counsel filed a prompt- bring Moore to that failure him Jersey pursuant motion to New Rule in dismissal might result to trial ly 3:25 — 2 to the indictment the dismiss on indictment. grounds that Moore had been denied letter, the receipt the court’s After right to a and that no date on Febru- office undertook prosecutor’s (for trial) certain had been set. hear A 11, 1969, extradite Moore to ary September 25, ing was held on 25, 1969, the New Virginia. On March granting resulted to Jersey Office forwarded Governor’s Moore’s motion and the dismissal of the requisi- a Office Virginia Governor’s appeal. indictment. The state took no Agree- Governor’s executed Thereаfter to New on July extradition for Moore’s ment (ten months after nor a procedure, dismissal Jersey. Neither this of the indictment charging Virginia law Moore with available under simpler one carnal abuse), the Passaic Jersey County au- to the New Grand Jury recommended returned three new Attorney Assistant Gen- by the indictments charging thorities Moore implemented. atrocious Virginia, was ever assault eral and battery (In dictment No. 1004-71), to explains this failure prosecutor threat to (In kill dictment No. through extradition on Moore’s follow impairing 1005 — the morals (Indictment of a child follows: Appellee accusation, burglary Assignment Judge may, Moore was convicted on year Virginia motion, and was sentenced to five term his on direct defendant’s Virginia Penitentiary. upon speсified day. State Moore trial thereof be moved 3,May serving Upon attorney prosecuting commenced term on this failure of the so, Assignment Judge may do order Jersey provides: 2. New Rule 3:25-2 indictment- or accusation dismissed. The dis- equivalent judgment missal shall be “At time after following 6 months acquittal.” filing return indictment or the of an 1006-71). seeking Each of these new unsuccessfully appeal indict er leave ments was based on the ruling, incident of this moved Jan for and obtain 11, 1967, uary which had originally given evidentiary hearing ed to demon rise to the (by dismissed) then “prejudice.” carnal strate At the conclusion of abuse indictment. hearing on March the court prejudice ruled that “. . no actual arraignment After August 10, delay caused [was] Moore moved to dismiss the three new .”, bringing the matter clаiming indictments jeopardy double and denied Moore’smotion to dismiss the and collateral estoppel. On October two indictments.3 1971 Moore’s granted motion was and all three sought indictments were leave to appeal dismissed. or- der, appeal, Appellate Appellate Division, Division first to the affirmed then dismissal of Jersey Supreme Indictment No. the New 1006-71 Court. (impairing Both applications minor) morals of a appeal on the leave to denied; ground that were proofs required the Appellate to estab- charge May 10, 1973, lish the “impairing” would co- Jersey the New incide with necessary prove those car- on June 1973. It was (on nal abuse. then 19, 1973) June that Moore filed for a Writ of Corpus Habeas remaining indictments, As to the two in the distriсt court asserting denial of however, Appellate Division reversed to a guaranteed by judgment of the trial court. It rea- *5 the Sixth and Fourteenth Amendments. soned that: sought He discharge custody and a “. Inasmuch as neither atro- permanent injunction against all state cious battery assault and [Indictment respect with to Indictment kill nor threat to 71] [Indict- 1004— (atrocious Nos. 1004—71 assault and bat- ment No. is an essential ele- 71] 1005— tery), (threat and kill). 1005-71 to of ment the abuse, crime of carnal the 21, 1974, June the granted district court of dismissal the charge carnal abuse for a Writ of Habeas operate does not to bar the Corpus and ordered the state crimi- of the charges defendant on the of nal proceedings permanently stayed. atrocious battery assault and and This appeal followed. (Citations threat omitted). to kill. .”
II. prisoners, con For state delay, the court federal habe- respect to With corpus substantially post-convie of is of evidence that in absence cluded the delay remedy, Peyton Rowe, by 391 (caused the U.S. prejudice” “actual 54, 60, 1549, 88 in S.Ct. indictments) the the the return of in (1967); Neverthe see 28 U.S.C. 2254.4 § Aft be dismissed. dictments should not although the dis- not disposition, need in this connection light our We note of In opin- 22, no makes 1973 between of March apparent order difference court’s cuss proofs entertaining the order further Appellate and at trial to reference ion opinion re- the trial Appellate Division “prejudice”, oral The court. produce beginning to with to Moore a “timе-frame” court reserves ferred (January charged “prejudice” testimony at trial. offense of the additional commission in- ending date of 1967) 11, and provides part: 4. 28 relevant § U.S.C. 2254 in 21, court The trial (July dictments * * * * * * “time- same opinion discussed oral “(b) application of habeas for a writ An on a different frame”, focused but its order custody pur- person in behalf of a indictment period between period, time —the judgment shall of a State court suant us, the issue argued to Although not trial. and appears granted it unless is which is relevant “time-frame” which applicant availa- remedies has exhausted the appropriate for may be applicable standard State, is there ble courts of the or that in the court at the state presentation 442 less, jurisdiction to issue writ exists 241, 252-53, 6 Royall, 117 U.S. parte Ex judgment federal courts before a 734, 741, (1886). More 29 868 L.Ed. S.Ct. is proceed rendered a state criminal availability pre-trial of ha- recently, the ing. See 28 U.S.C. 2241.5 § been affirmed Braden beas has Ken- Judicial Circuit Court of v. 30th discussing exhaustion in the In 1123, 35 tucky, 410 U.S. S.Ct. context, few discern cases Noia, Fay L.Ed.2d 443 situa between post-trial L.Ed.2d prisoners, it respect tions. With (1963). In the Court had occasion Fay, post-trial setting is that ex parte explain its earlier decision in Ex statute, haustion has been mandated Royall, as follows: supra, 2254(b). 28 28 U.S.C. U.S.C. § § parte Court held Ex [in 2241(c)(3), empowers district Royall, supra that even in such a case judg- ] issue before a courts to the writ power to courts had the proceed- ment is rendered discharge a prisoner restrained in ing, makes no reference exhaustion. Constitution, violation of the Federal area, requirement an exhaustion S.Ct., U.S., see 117 250-251 law, [6 developed through ap- has decisional 740], ordinarily the but plying principles of federalism. The dis- 739 — stay its hand on federal court should 2241, pre-trial tinction haustion, ex- between § pending completion of the state post-trial exhaus- proceedings. qualification This tion, recognized in Jus- and discussed plainly stemmed from considerations Rehnquist’s tice dissent Braden comity power, envi rather than Kentucky, 30th Judicial Circuit saged only postponement, relinquishment, of federal habeas cor (1973). purposes, For our L.Ed.2d 443 pus jurisdiction, which had attached that, recognize although is sufficient allegedly unconstitution reason statutory is a distinction in the there al detention and could not be ousted no 2254 and there is language of §§ might what the state court decide. insofar as the exhaustion re- distinction *6 in As well stated a later case: quirement is concerned. ‘ 1886, early As . . . courts While the Federal context held that: power may discharge the have the he is accused advance of his if “. a person where is in custo- liberty process of his in violation of dy, under restrained court State laws, jurisdiction, the Federal or original Constitution of practice exercising against State,
offense the laws of such power question it has is claimed such before is restrained liberty in the state of his been raised or determined in violation of Con- ought not be States, is one stitution of court the United Cir- charged discretion, encourаged. party The cuit Court has whether jurisdiction by him, no discharge will waives defect upon habeas cor- submitting upon pus, to a trial of his case advance his in the court merits, comity in which he and we think is indicted . ..” tive protect have exhausted this dure, either courts of stances of- (c) the State section, process An an absence of available State correc- rendering applicant question presented.” rights if he has the or State, raise, the- remedies available such shall not be within the existence process prisoner. available under ineffective meaning of of circum- deemed to the law proce- 5. 28 U.S.C. tend Constitution States; (c) (3) The writ ato He [******] [******] ****** is in prisoner § 2241 . .” laws or treaties of the custody provides unless— in relevant violation of shall not United part: ex-
443
courts,
demands that the state
under
Johnston,
19,
en v.
306 U.S.
27 [59
held,
process
whose
he is
and which
442, 446, 83
S.Ct.
L.Ed.
Cf.
455].
equally
are
with
Federal courts
Boyle,
1,
v.
1
Stack
342 U.S.
S.Ct.
[72
charged
duty
of protecting
Collins,
3];
96 L.Ed.
Frisbie
342
enjoyment
accused in the
of his
509,
541];
U.S. 519
96 L.Ed.
S.Ct.
[72
rights,
appeal
constitutional
should be
Green,
Douglas v.
tled to
claim of
actually
standing
speedy trial
procedure,
Jersey
New
Under
Kentucky
trial on
indictment.
Since
entitled,
right,
Moore was not
as of
Supreme
ultimately
Court
in Braden
appeal
of the state
order
could raise his
concluded
judge
regarding
prejudice.”
“lack
speedy trial claim on a
for habe-
Rather,
Ap
applications
standing
before
Jersey
pellate Division and
the New
indictment,
Kentucky
petitioner Moore
were
for “leave
motions
urges
that Braden dictates
the same re-
2:2-4;
,7
appeal.”
see
N.J.Ct.R.
present
sult
case.
2:2 —2
*8
(See
stances)
trial
in a
court.
Supreme
before
state
not read
6. We do
Court’s refer-
pertaining
supra).
page
as
to “exhaustion”
in Braden
ence
solely
statutorily
to the
mandated “exhaus-
provides:
7. N.J.Ct.R. 2:2--4
requirement
28 U.S.C.
2254 which
tion”
“
may grant
Appellate Division
leave to
“The
applies
is
.
.
.
in cus-
when
justice,
appeal,
an
interest of
from
pursuant
in the
tody
judgment
to
court
of State
interlocutory
judge
Rather,
order of a
or of a
court
. .”
we believe that
the Court
statutory agent,
sitting
an inter-
or from
as a
generic
the term
used
“exhaustion”
sense
locutory
or action of a state admin-
decision
strong
policy
included
federal
officer,
judg-
agency
final
or
if the
istrative
against entertaining
application for
habeas
ment,
appeala-
action
or
thereof
(absent
decision
extraordinary
relief
circum-
Second,
present
2:2-5.8 Denial Moore’s mol
N.J.Ct.R.
/
case is unlike
interlocutory
seeking
review did'
Braden,
purpose
tions
in the
supra,
for which
ruling by
Ap
either the
not constitute
relief was sought.
Supreme
Division or the
Court on
Braden,
pellate
the court was careful to note:
merits Moore’s
claim.
.
.
.
made no effort
[Petitioner
it,
purposes
of the exhaus
Nor did
proceeding
to abort a state
dis-
to
requirement,
opportu
constitute
rupt
orderly functioning
of state
nity to consider Moore’s constitutional
He comes to feder-
judicial processes.
on the merits. Cf. Francisco v.
claim
court, not in an effort to forestall a
al
Gathright,
419 U.S.
S.Ct.
to enforce
but
prosecution,
(1974).
L.Ed.2d 226
See United States
obligation
provide
to
Commonwealth’s
Walters,
Geisler v.
ex rel.
(3d
79 — 1345
court forum. He de-
with a state
him
Cir. Feb.
In Picard v. Con
application for federal relief
his
layed
nor,
270, 275-76,
404 U.S.
conclusively
had
state courts
until the
(1971),
Supreme
L.Ed.2d 438
was
determined
indicated that “exhaustion” means
Court
moribund.
temporarily
very
of the
issue which
exhaustion
forms
nothing we have
еmphasize
We
sought
the basis for relief
in the federal
permit the derailment of a
said would
Supreme
Court stated:
courts.
by an at-
proceeding
pending
defens-
litigate constitutional
tempt to
emphasize that the federal
“We
claim
in federal court. The
prematurely
es
fairly presented
must be
to the state
in dissent
our decision
contention
is not
courts.
sufficient
[I]t
into ‘a
federal
converts
merely
appli-
that the federal habeas
prison-
for state
forum
pretrial-motion
through
cant has been
the state courts.
wholly misapprehends
today’s
ers,’
purpose
The rule would serve no
if it
holding.”
by raising
could be satisfied
one claim
491, 493, 93
at 1128.
state courts and
another in the
contrast,
does not
Here,
Moore
seek
courts.
. Accordingly,
duty
prоvide
to
the state’s
to enforce
required
prisoner
a state
we have
to
(Indeed,
ap-
it would
trial.
with a
him
present the state courts with the same
with which
the determination
pear,
urges upon
claim
federal courts.
pursues
County Prosecutor
Passaic
” (citations omitted).
state, now,
appeal, that
present
provide
willing to
Moore
than
is more
not exhaust his state court
did
may
trial —whatever
(cid:127)
a state
application
to
for federal
remedies
derelictions of that
past
its
have been
corpus relief. This issue is still
Rather,
seeks
abort a
duty.)
Moore as an
affirmative de-
available
indicated,
As
courts.
the state
thereafter,
appel-
at trial and
fense
specifically
cautioned
Braden
Indeed, the trial cоurt ex-
supra,
review.
late
construed as
holding
not be
should
recognized that additional evi-
pressly
interference
authorizing pre-trial habeas
prejudice
as to
on the issue of
dence
normal function-
courts
by federal
be adduced
delay could
2:2-3(a),
(c)
ble as of
pursuant
R.
but
On certification
Court
no such
appeal
shall
be allowed
Division
cases
Appellate
pursuant
R.
’
2:2-2(a).”
to in
referred
R.
2:12.”
N.J.Ct.R.
2:2-2 provides:
8. N.J.Ct.R.
2:2-5 provides:
be taken
“Appeals may
to the Supreme
Court
its leave from
judgment
interlocutory
orders:
“A
Appellate
(a) Of
courts
in cases where
from an
appeal
interlocutory
order,
death
has been or
penalty
decision
or action shall be
deemed
imposed
to be in-
post-conviction
and not
terlocutory
cases
appealable
the Su-
judgment,
in which
the death
a final
penalty
preme
unless
imposed.
*9
(b)
judgment
theOf
Appellate
when neces-
Division is
Appellate
disposi-
injury;
sary
prevent
irreparable
of the action.”
tive
required
undergo
rigors
processes. We be-
of trial
criminal
ing of state
precisely
is
to vindicate his claim that
present case
lieve
longer bring
court can no
anticipated by the
him to trial.
the situation
Lansdown,
v.
that federal courts should Cf. United States
caveat
Court’s
(4th
1972) (wherein
the claimed denial of a
Cir.
permit
simi
trial,
argument
presented
pre-trial ap-
in a
lar
was advanced in a double
speedy
There,
habeas,
jeopardy
ap
to result in the
context.
on direct
“de-
plication
appellant sought
pending
proceeding.” peal,
.to
of a
railment
being
be free from
twice forced to stand
and after10
Braden,
Both before9
”).11
trial for the same offense
involving speedy trial
re
cases
issues
exhaustion in advance of
quired state
prepared
We are not
to hold
consideration.
federal
chronology
that either
of events
noted,
as we have
reinforces
Braden,
leading
or
requirement
requirement
trial,
right
speedy
of Moore’s
to a
denial
—a
Thus,
pre
if Moore is to
by Moore.
met
vail,
“extraordinary
constitutes such
circum
only by
so
demonstrating
he can do
require
stances” as to
federal interven
“extraordinary
circumstances” which
prior to
tion
exhaustion of state court
would,
nature,
very
their
obviate the
perceive nothing
remedies. We
requirement.
exhaustion
right
quali
nature of the
fy
“extraordinary
as a
circum
per
se
IV.
authority,
stance.” We know of no
ei
bypass
In an effort
state ex-
pre-
or
ther
that ex
post-Braden, supra,
requirement, Moore
haustion
contends
singles
out the
cepts
constitutional is
constitutional
to a speedy
that his
speedy trial
an extraordinary
sue of
as
unique that it should
trial is so
bar not
dispense
sufficient to
circumstance
with
(for
underlying
a conviction
of-
requirement.
the exhaustion
To the con
fense),
the trial for
but
that offense as
trary,
the cases in which the
unique quality,
That
well.
claims
pre-trial
claim has been raised
habe-
equated
with and
coterminous
to the
is
granted
have
the writ only
as context
“extrаordinary
circumstances” which
on the merits in
after exhaustion
habeas- relief
to state ex-
permit
state courts
III
(see
supra).
haustion.
Circuit,
premise
years before Bra-
that he has a
In this
some
From
trial,
the denial of
proceeds
we affirmed
den,
right not to stand
that,
petitioner, prior to
tri
conclusion
to avoid the
where
al,
argument
there
the same
threatening state
must be
advanced
case,
(if
In that
Matzner
forum
not a state fo Moore does here.
some
(D.N.J.
rum,
forum)
F.Supp. 636
Davenport,
then
available
v.
aff’d,
1969),
merits of his constitutional
test
447
(1970), the
held the
(also pre-Braden stated in its discussion on the merits his state remedies corpus prior of federal habeas relief to having present an “extraordina failed trial: ry circumstance” which would warrant “Although federal habeas relief pre-trial, pre-exhaustion habeas ordinarily is not available to a state relief, we conclude that the district cоurt prisoner peculiar before na- granting law13 in as a matter of erred of the a speedy ture trial re- petition. Moore’s quires exception an to this rule. Only present remedy can lift its dual V. ” (citation oppressions.
omitted).
grant
The district court’s order
ing
the writ
also en
face,
appear
it would
joined
in connection
supports
position
statement
taken
with the
indictments under
two
petitioner
However,
Moore.
charged.
Had the
prop
writ
quoted language cannot afford comfort
issued,
erly
question
we would not
support
Moore,
for in
injunction
appropriate
in aid of the
contentions,
of Kane’s
disposing
jurisdiction.
writ and the court’s
See 28
that, despite
held
the “peculiar
U.S.C.
writ, however,
With
denial of the
right”,
nature
federal habeas cor-
question
to be re
pus was available
after the exhaus-
Harris,
Younger
solved is whether
su
of all available state
remedies.
precludes injunctive
pra,
relief.
Hence,
even
those cases to which
Kugler,
In Helfant v.
have been referred where
we
“extraordi-
(3d Cir.),
granted,
1192-93
cert.
nary
circumstances” were
in a
U.S.
petition,
the courts have re-
(1974),
analyzed Younger
as follows:
quired
state exhaustion
to federal
corpus availability.
This is not
“Younger Harris,
supra, 401 particular
say
“extraordinary
91 S.Ct. at
holds that a
Despite
“extraordinary
circumstance”,
justifying pre-
the fact that
instant
record re-
shortcomings
prosecu-
manifest
veals
exhaustion
habeas relief.
negligence
Johnson,
13. See United States ex
tor’s office
the cоnduct of
rel. Davis v.
(3d
1974);
prosecution (starting
“The record fails to demonstrate pending state any threat
posed rights defendant’s
that could not be eliminated asser- appropriate tion of defense in the WEISS, Appellant, ” Lillian courts. state We 1232. are satisfied that claim of denial of the CORPORATION MOTORS CHRYSLER right to does not fall with- Appellees. Corporation, Chrysler extraordinary circumstances envi- 73-2201. Docket Cal. sioned Petitioner Moore Younger. opportunity will have an to raise his Appeals, States United denial of the claimed to a Circuit. Second during his any state and in Jan. Argued appellate subsequent proceedings in the courts. Once he has exhausted April Decided remedies, federal courts will, course, him, open to if need
be, to entertain for habeas presented. relief which procedures amply
These available serve protect rights Moore’s constitutional intervention in
without