Larry DAVIS, Petitioner-Appellant, v. Douglas T. LANSING, Warden, Metropolitan Correctional Center, and Richard J. Koehler, Commissioner of Corrections, City of New York, Respondents-Appellees.
No. 1427, Docket 88-2271
United States Court of Appeals, Second Circuit
Argued June 17, 1988. Decided June 30, 1988.
As to defendants’ request for sanctions, costs and attorney‘s fees, we conclude that it should be denied. Given the previously unresolved state of the law in this Circuit concerning the question of appellate jurisdiction in consolidated actions, it would be improper to award sanctions against a party whose appeal raises this issue for the first time.
CONCLUSION
For the foregoing reasons, we grant defendants’ motion to dismiss the appeal for lack of appellate jurisdiction and deny defendants’ request for sanctions, costs and attorney‘s fees.1
Peter D. Coddington, Asst. Dist. Atty., Bronx County, Bronx, N.Y. (Paul T. Gentile, Dist. Atty. for Bronx County, Bronx, N.Y., of counsel), for respondents-appellees.
Before OAKES, MESKILL and PIERCE, Circuit Judges.
MESKILL, Circuit Judge:
This is an expedited appeal from a judgment of the United States District Court for the Southern District of New York, Ward, J., dismissing the petition of appellant Larry Davis for a writ of habeas corpus under
BACKGROUND
Davis is currently being tried in New York Supreme Court, Bronx County, before Acting Justice Fried, on charges of attempted murder arising out of a shootout with police in November 1986 in which several officers were wounded. Jury selection began on April 18, 1988.
After six jurors had been selected, the prosecution objected to what it characterized as the defense‘s systematic use of peremptory challenges to exclude whites from the jury. Justice Fried agreed with the prosecution that the defense‘s use of peremptory challenges was governed by Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), which holds that a prosecutor may not use peremptory challenges to strike jurors solely because of race. Id. at 89, 106 S.Ct. at 1719. He concluded that the prosecution had made a prima facie showing that the defense had excluded jurors because of race. Cf. id. at 93-94, 106 S.Ct. at 1721-22. After holding an in camera hearing to explore the defense‘s reasons for exercising its peremptory challenges, Justice Fried concluded that several challenges had been exercised solely because of race. He therefore dismissed the six jurors already selected as well as the venire from which they had been chosen, restored to each side the full twenty peremptory challenges provided by New York law, and started jury selection over again.
Davis applied to the Appellate Division for a writ of mandamus and/or prohibition pursuant to
Jury selection resumed after Justice Fried denied Davis’ request for a stay. Davis then commenced a second
On May 26, Davis filed the instant habeas petition in the United States District Court for the Southern District of New York. He named as respondents the warden of the Metropolitan Correctional Center,
The district court denied the requested relief and dismissed the petition in a decision issued June 1. Judge Ward noted that there were “serious questions” whether Davis had exhausted state remedies by bringing his two
The district court did not reach Davis’ Batson argument, however. Instead, relying on the pendency of Davis’ state criminal prosecution and his failure to show great and immediate irreparable harm, see Younger, 401 U.S. at 43-46, 91 S.Ct. at 750, Judge Ward concluded that he should abstain from exercising jurisdiction. See J.App. at 7-10.
This expedited appeal followed.
DISCUSSION
A. Jurisdiction
The question of federal jurisdiction, which the district court did not reach, is not free from doubt in this case. Davis’ petition is couched in terms of habeas corpus but he essentially seeks from the federal court what he failed to obtain in the state courts—relief in the nature of mandamus or prohibition directed to Justice Fried. The federal courts have no general power to compel action by state officials, however. See, e.g., Van Sickle v. Holloway, 791 F.2d 1431, 1436 n. 5 (10th Cir.1986); Russell v. Knight, 488 F.2d 96, 97 (5th Cir.1973) (per curiam); Haggard v. Tennessee, 421 F.2d 1384, 1386 (6th Cir.1970); Gurley v. Superior Court of Mecklenburg County, 411 F.2d 586, 587 (4th Cir.1969) (per curiam); Clark v. Washington, 366 F.2d 678, 681-82 (9th Cir.1966). Thus, if Davis had expressly sought relief in the nature of mandamus or prohibition, we would lack jurisdiction.
It is not clear that the result should be different merely because Davis has recast his plea for relief in the form of a habeas petition. The “traditional meaning and purpose of habeas corpus [is] to effect release from illegal custody.” Preiser v. Rodriguez, 411 U.S. 475, 486 n. 7, 93 S.Ct. 1827, 1834 n. 7, 36 L.Ed.2d 439 (1973). Before the federal courts, Davis has at least facially brought his prayer for relief within the ambit of habeas by requesting release from custody unless the state court complies with directions to vacate its orders involving the Batson analysis. Notwithstanding the form of his request, it is clear that if he prevails, he will obtain only a continuing trial before a differently constituted jury. The fact or duration of his confinement would not be affected. The relief requested in the habeas petition thus differs little in effect from the remedies of mandamus or prohibition sought in the
In light of our disposition of the abstention issue, it is unnecessary to decide whether the nature of relief sought by Davis undermines the viability of his habeas petition. We do not mean to encourage the use of habeas to circumvent the unavailability of mandamus against state officials. For purposes of this appeal, however, we accept his request for release at face value and proceed to examine the merits. We do not decide whether, in a proper case, the unavailability of requested relief might alone support dismissal of a habeas petition for lack of jurisdiction.1
An applicant for habeas relief generally must exhaust available state remedies. See
The relief Davis sought—a writ of mandamus and/or prohibition—is regarded as an extraordinary remedy. In New York, it is settled that an
Davis’ requests for relief were insufficient to warrant action under
Against this background, we are inclined to conclude that Davis’ claims are unexhausted. The Supreme Court has held in a closely analogous case that prejudgment pursuit of a writ of prohibition does not necessarily exhaust state remedies. See Pitchess v. Davis, 421 U.S. 482, 483, 485, 95 S.Ct. 1748, 1752, 44 L.Ed.2d 317 (1975) (per curiam). “[D]enial of an application for an extraordinary writ by state appellate courts [does] not serve to exhaust state remedies where the denial [can]not be fairly taken as an adjudication of the merits of claims presented, and where normal channels for review [are] available.” Id. (citing Ex parte Hawk, 321 U.S. 114, 116, 64 S.Ct. 448, 449, 88 L.Ed. 572 (1944)). Here, Davis’
We need not decide whether, as Davis contends, Pitchess may be distinguished from the instant case. The apparent failure to exhaust is not an absolute bar to consideration of the petition on the merits. The exhaustion requirement is not jurisdictional. See Strickland v. Washington, 466 U.S. 668, 684, 104 S.Ct. 2052, 2062, 80 L.Ed.2d 674 (1984). It is a doctrine of comity. See Rose v. Lundy, 455 U.S. 509, 515-18, 102 S.Ct. 1198, 1201-03, 71 L.Ed.2d 379 (1982). In some circumstances it may be appropriate to address the merits of a habeas petition in the interests of comity and federalism even if the state fails to press an arguably meritorious non-exhaustion defense. See Granberry, 481 U.S. at —, 107 S.Ct. at 1675-76. See also Plunkett, 828 F.2d at 956 (noting that judicial resources may also be preserved). The interests of the federal and state courts, as well as those of petitioner and respondents, are served by reaching the merits “if it is perfectly clear that the applicant does not raise even a colorable federal claim.” Granberry, 481 U.S. at —, 107 S.Ct. at 1675. District courts as well as courts of appeals therefore have “discretion to determine what effect to give to a state‘s waiver of [an] exhaustion defense.” Plunkett, 828 F.2d at 956.
We agree with the district court that it would be most efficient to disregard non-exhaustion and reach the merits of the dispositive abstention issue. The respondents’ willingness to forgo the non-exhaustion defense, albeit not binding on the court, also supports this conclusion. Under the circumstances, resolution of the abstention issue is “perfectly clear.” Its immediate disposition serves the interests of comity by allowing the state court to conduct the trial without federal interference.
C. Abstention
Interests of federalism and comity stand behind the “fundamental policy against federal interference with state criminal prosecutions.” Younger, 401 U.S. at 46, 91 S.Ct. at 751. See also Middlesex County Ethics Committee v. Garden State Bar Ass‘n, 457 U.S. 423, 431, 102 S.Ct. 2515, 2521, 73 L.Ed.2d 116 (1982); Levy v. Lewis, 635 F.2d 960, 964-65 (2d Cir.1980). Accordingly, “the normal thing to do when federal courts are asked to enjoin pending [state criminal] proceedings . . . is not to issue such injunctions.” Younger, 401 U.S. at 45, 91 S.Ct. at 751. Moreover, equitable principles support denial of relief in such circumstances unless there is a showing of irreparable harm that is both great and immediate. Id. at 46, 91 S.Ct. at 751. Finally, interference in pending proceedings is inappropriate “unless state law clearly bars the interposition of . . . [federal] constitutional claims.” Middlesex County Ethics Committee, 457 U.S. at 432, 102 S.Ct. at 2521 (quoting Moore v. Sims, 442 U.S. 415, 426, 99 S.Ct. 2371, 2379, 60 L.Ed.2d 994 (1979)). “No more is required to invoke Younger abstention [than the opportunity to present federal claims in the state proceeding].” Juidice v. Vail, 430 U.S. 327, 337, 97 S.Ct. 1211, 1218, 51 L.Ed.2d 376 (1977). The burden of showing inadequacy of state procedure for this purpose rests with the federal “plaintiff“—here, Davis. See Pennzoil Co. v. Texaco, Inc., 481 U.S. 1, 107 S.Ct. 1519, 1528, 95 L.Ed.2d 1 (1987). See generally Middlesex County Ethics Committee, 457 U.S. at 432, 102 S.Ct. at 2521; University Club v. City of New York, 842 F.2d 37, 40 (2d Cir.1988).
This is a classic case for abstention. Davis essentially asked a federal court to exert control over his state trial. There is no question that the ongoing prosecution implicates important state interests: Younger itself settled the importance of the state‘s interest in criminal proceedings. Moreover, Davis concedes that he can raise any constitutional claims on direct appeal in the state courts if he is convicted. Younger thus unmistakably supports the district court‘s decision not to exercise jurisdiction.
Davis first argues that he will suffer irreparable harm if his trial proceeds with an improperly constituted jury. The burden of defending a criminal prosecution is, of course, insufficient without more to constitute irreparable harm. See id. at 46-47, 91 S.Ct. at 751-52. Davis relies on the possibility of adverse consequences in future prosecutions arising out of the same events at issue here. He contends that if he is convicted in the trial now under way, and if later prosecutions are not stayed pending appeal, his conviction may be admitted into evidence as proof of identity or, if he testifies, to impeach him. To state this argument is to refute it: the harm alleged is too speculative and remote to constitute the “immediate” harm necessary to support interference with a pending state proceeding, see id. at 46, 91 S.Ct. at 751.
Second, Davis contends that Younger principles are not properly applicable here at all because he does not seek to enjoin the prosecution. This contention is nothing more than a semantic distinction: although Davis does not denominate his requested relief an injunction against prosecution, he seeks “discharge” of the prosecution if the requested relief is not forthcoming. In any event, Younger itself speaks of “interference” with state proceedings. See 401 U.S. at 43, 46, 91 S.Ct. at 750, 751. See also Wallace v. Kern, 520 F.2d 400, 405 (2d Cir.1975) (noting that comity deprives federal courts of power to intervene in state courts’ internal procedures), cert. denied, 424 U.S. 912, 96 S.Ct. 1109, 47 L.Ed.2d 316 (1976). Even if Davis cannot obtain a complete prohibition of the state prosecution, he would have it proceed only under conditions imposed by the federal judiciary. Unless Younger otherwise supports such drastic intervention, and it does not, principles of comity oblige the federal court to stay its hand.
Davis’ third argument is that this case involves prosecutorial bad faith that outweighs considerations of comity. He contends that departure from the general rule of noninterference is warranted because the prosecution has acted in bad faith in taking its position on the Batson question at issue here. As an initial matter, we are skeptical that any position on that question could, without more, constitute bad faith when the Supreme Court itself has expressly left the issue open. Furthermore, Davis points to nothing suggesting that the prosecution adopted its position in bad faith or for purposes of harassment in the sense Younger contemplates. The Younger Court gave the example of enforcement of a statute without “‘any expectation of securing valid convictions‘” and solely for the purpose of discouraging the assertion of constitutional rights. 401 U.S. at 48, 91 S.Ct. at 752 (quoting Dombrowski v. Pfister, 380 U.S. 479, 482, 85 S.Ct. 1116, 1118, 14 L.Ed.2d 22 (1965)). Even if the prosecution here sought some tactical advantage, its motivation does not rise to this level of bad faith.
Finally, Davis contends that this case presents an “unusual situation[] calling for federal intervention” despite the lack of bad faith or harassment. See id. at 53-54, 91 S.Ct. at 755. This argument is not persuasive. Although the Younger Court left open the possibility that undefined “extraordinary circumstances” might support interference with state proceedings, see id. at 53, 91 S.Ct. at 755, there must nevertheless be a showing of “the necessary irreparable injury,” id. Davis urges us to find such an extraordinary circumstance in the possibility that a conviction here may have adverse consequences for his defense of later prosecutions. We have already noted, however, that this possibility is too speculative and remote to constitute immediate
CONCLUSION
For the foregoing reasons, we conclude that abstention is indicated in the present posture of this case. We therefore affirm the dismissal of Davis’ habeas petition.
PIERCE, Circuit Judge, dissenting:
I would dismiss this appeal for lack of jurisdiction. Under