*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. 38 L.Ed.2d 674 (1974), 17, 1974; Judge October Chief Supreme Court applied the Younger grant a decision and issued order Curtin principle in a action, 1983 reiterating motion ing the defendants’ to dismiss the what it had said in Mitchum v. Foster, court complaint. The below based its supra, 407 243, U.S. at 92 2151, S.Ct. upon the abstention decision doctrine of the Mitchum holding was not intended Harris, 37, 401 91 Younger v. U.S. qualify way the principles of com 746, 669 appli 27 L.Ed.2d ity and federalism. See Huffman v. by court in cation this Erdmann v. Ste - Pursue, Ltd., -, U.S. 95 S.Ct. 1205, vens, denied, cert. 409 1200, 43 L.Ed.2d 482 (March 13, 1975) 93 S.Ct. L.Ed.2d 147 (Younger held applicable in a suit (1972). The court also stated that it was brought under 1983 to enjoin a state civ reasoning adopting of Anonymous il proceeding). the Bar City Association of York, Affirmed. (S.D.N.Y. 74 Civ. New July 31, 1974). appeal in that case was panel day

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, supra, 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 question 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 office 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. rape. 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, Moore 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 Thereafter 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 specified 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 claiming 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 district 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 “time-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, encouraged. 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. 363 U.S. 192 [80 ed to in the first instance. Should 1048, S.Ct. 4 L.Ed.2d 1142].” denied, rights such remedy 418-20, 372 U.S. at S.Ct. the Federal will remain unim teaching derived from paired.’ Hart, 146 U.S. [Cook these authorities be stated as: 40, 43-44, 194-195 S.Ct. L.Ed. [13 (1) “pre-trial” federal courts have ha- (1892) other citations footnote 934] corpus jurisdiction; beas omitted]. jurisdiction without exhaus These decisions fashioned a doctrine pre should not be exercised at the abstention, whereby play full would stage extraordinary unless circum allowed the adminis States present. stances are See Frisbie v. Col justice tration of their with lins, 519, 520-521, U.S. S.Ct. prejudice rights out to federal enwov (1952); Jones, 96 L.Ed. 541 Reid v. en in the proceedings. Thus the 153, 154, 47 L.Ed. frequently applica Court has held that (1902); ex United States rel. Richardson tion for a writ of habeas should Rundle, 864-65 prejudice have been “without denied denied, cert. 410 U.S. 93 S.Ct. to a renewal the same after (1973); accused himself had availed of such remedies as the laws State af (3) where no extraordinary there are forded ..” Minnesota v. petitioner circumstances where seeks Brundage, 500-501 litigate, of a [21 merits constitutional 45 L.Ed. also See defense 639]. to a state criminal charge, the parte supra Ex Royall, at 254 [17 “pre-tri- U.S.] district court should exercise its S.Ct., refinements, With jurisdiction al” [6 741]. if requiring doctrine the exhaustion special showing makes a of the need for of state is now remedies codified in 28 adjudication such and has exhausted U.S.C. Braden, supra. [footnote omitted] remedies. not changed: its rationale has But ‘it mind, With these principles we turn system would be in our unseemly dual arguments to determine government for a federal district whether he has such demonstrated ex- upset court to a state court conviction traordinary circumstances or has ex- *7 without an opportunity to the state hausted state court remedies on the mer- courts to correct a constitutional viola its. tion . . .. was found Solution III. courts, the comity doctrine between of Moore seeks the writ of corpus a doctrine teaches which that one injunctive relief based on the denial court should defer action on causes right of his to speedy a trial under jurisdiction the properly within its until Sixth and Fourteenth Amendments. the He sovereignty courts of another argues: (1) court, the state trial powers, already concurrent cogni pre-trial hearing, refused to hold that litigation, zant of the have he op had an prejudiced “delay” portunity refused pass upon to the matter.’ to order the charges dismissed; state Burford, (2) Darr v. 339 U.S. 204 [70 the New Jersey appellate 761], courts 94 L.Ed. The have rule denied his applications for leave ap- to defining of exhaustion ‘is not one “ peal order; that (3) he should not power . but one which relates to the be forced to endure a power.’ of exercise Bow trial appropriate beginning be- argument which is unfair We believe Moore’s prejudice. delay of incident cause of two critical distinctions fails because gov- . Trial would be present case. Braden and the between [itself] would violate ernmental act which First, Braden, em- Supreme [his] Court (Appel- . .” speedy . . right to trial oppor- phasized that state courts had Thus, concludes lee’s Brief tunity to consider merits he has further avenue for since no applied speedy before Braden trial issue in the courts short of relief for habeas relief in the district alleged is his trial itself and since court. trial” which is at “right to stand injured issue, un- irreparably he will petitioner . has exhausted all less he is afforded federal prelude state remedies as a available injunctive before relief to this action. He has made Jersey state commences. New repeated demands to the contention, support his directs courts Kentucky, offering those to Braden v. 30th this Court’s attention opportunity courts to consider Kentucky, Judicial Circuit Court of the merits his constitutional claim of 35 L.Ed.2d present [emphasis original] deni- which, argues, dispositive al of a cir- trial. these Under present case. cumstances it is clear he has ex- case, Braden, hausted all available state court reme- like the involved present dies for cor- consideration of that constitu- application for a writ claim, pus petitioner though Kentucky tional even in which the denial yet brought has not to a him to trial. of his constitutional petitioner underlying The was con- fundamental interests Braden prison. He the exhaustion ful- in an doctrine have been fined Alabama validity ly petitioner’s sought challenge satisfied situation. ” (emphasis added) Kentucky had detainer been against custody lodged release from Supreme in Alabama. While the Court By con 489-91, 93 S.Ct. 1127.6 granted certiorari to consider choice of Jersey courts trast, appellate New question, disposi- relevant forum of con opportunity not had have case, present also tion of the Court claim of denial sidering Moore’s petitioner considered whether was enti- speedy trial. raise his denial of a

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 emphasize 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 provide 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 court 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 “extraordinary 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 410 F.2d 1376 Cir. denied, Otherwise, argues, 396 U.S. he would cert. claim. (4th arising Virginia, indictments 419 F.2d 1369 Cir. out of 9. See Kane the al leged 1970) Thus, cited in assault. Braden, and cases supra, constitution al considerations, policy 93 S.Ct. n.6, may entitle claiming jeopardy a defendant double to have Henderson, See McEachern 485 F.2d 694 that claim considered a pre-trial federal ha- (5th Cir. beas before state court exhaustion issue on the merits do not apply be the claim of a “double 11. Whatever force to Moore’s equal “speedy trial” conten jeopardy” Accordingly, defendant to pre-trial, pre-exhaus tion. any reliance by Moore on- jeopardy (see, relief, neither decide g., double cases e. United States major substantive dif here. One nor consider Ball, 163 U.S. 662, 16 S.Ct. 1192, 41 L.Ed. (“dou claims (1896); in the nature of the two ference Fain v. (5th Duff, 488 F.2d 218 trial”) jeopardy” 1973); readily is “speedy ble United States ex rel. Russo v. Su jeopardy A double claimant has (3d Cir.), apparent. perior 483 F.2d 7 cert. denied, rigors of a criminal endured once 94 S.Ct. 447, 38 L.Ed.2d 315 (1973)) stood trial on contrast, has not Moore, yet misplaced.

447 (1970), the held the 24 L.Ed.2d 506 (above beyond circumstance” quoted petition premature to be mere fact of speedy trial) denial of following approval language exhaustion obstacle could be sur- Lowry ex rel. from United States mounted. Justice Rehnquist, in his dis- (E.D.Pa.1968): Case, F.Supp. senting opinion Braden, justifies in pre- by trial federal interference way of ha- petition premature. corpus beas jurisdic- situations where I have found no case in which federal lacking tion is for the state bring any habeas was invoked for failure of a charges against petitioner. speedy state advance of the 410 U.S. at 93 S.Ct. 1123. hardly surprising, This is trial. for it may well be that the defendant would Here, we need not decide the acquitted it Or be of “extraordinary boundaries circum convicted, even if that relator would stances” sufficient to warrant unable to demonstrate that he was say interference. it to Suffice whatever prejudiced unfairly delay.” may be the limits or contours of the (emphasis supplied) “extraordinary exception, circumstances” F.Supp. at 639. Moore’s falls outside those limi ts.12 Virginia, In Kane v. 419 F.2d 1970), (4th Cir. the Fourth Circuit having failed to exhaust )

(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 court 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 conduct of rel. Davis v. (3d 1974); prosecution (starting 495 F.2d 335 Cir. United States ex does Robinson, quality delay, harassment, rel. Stone v. reveal 431 F.2d 548 1970) (discussing activity which, the standard of review bad faith or other intentional appeals). situation, appropriate might constitute *11 enjoin pend a court should Instead, plain- federal threat to the the term. the absence of prosecution in ing protected rights state federally must tiff’s faith, harassment or showing of bad a that cannot be eliminated one ‘extraordinary circumstances against single other a criminal his defense ” irreparable injury necessary which . . . prosecution. in the absence of shown even can be 46, 91 at 751. prerequisites of bad faith the usual Jeanette, Douglas City of In harassment.’ Conover Mon and 87 L.Ed. (3d temuro, Cir. (1943) the court stated: see, Kugler, 446 F.2d 1973); Lewis v. “ Congress, by legislation, . Neither the Su adopted policy, with certain has Court nor this court has con preme exceptions, statutory of well defined extraordinary what circum sidered generally leaving to the state courts justify will federal interven stances arising un- of criminal cases pending prosecution. a state tion laws, subject to review state der predicate Younger of v. Harris But any questions of in- Court assumption that defense of the is Hence, equity in courts of volved. prosecution state affords an pending discretionary powers their of exercise remedy adequate law for the vindi policy by re- conform to this should cation federal constitutional interfere with or embarrass fusing to Thus, issue. right at invocation of the proceedings in state courts threatened “extraordinary excep circumstances” which exceptional in those cases save bring play sugges tion must into interposition of a court of for call inability of an of the state forum prevent irreparable injury equity adequate remedy to afford an at law. clear and imminent Although the doctrines of “habeas cor- a familiar rule that courts of It is “Younger-absten- pus-exhaustion” ordinarily restrain crimi- do not equity directly related, they are not tion” share person No is im- prosecutions. nal many They characteristics in common. good faith mune from predicated upon both of are interests ” alleged criminal acts. for comity; they recog- both federalism exceptions for “extraordinary nize cir- context, as in habeas Just cumstances”; both doctrines are doc- Younger Court in the set- restraint; judicial they of both en- trines define what consti- would ting did remedies; adequate and, visage state “extraordinary circumstance”. tute petitioners bar they both who seek to Kugler, supra. We al- Helfant See prosecutions, prior abort state to trial or know, however, purposes that for ready review. final relief, courts pre-trial of Harris, Younger v. supra, the Su- a denial held have alone, specifically addressed the preme more, without does not consti- of when federal courts question should “extraordinary circumstance”. tute enjoin their discretion to a exercise prosecution. state criminal pending not suggest We do that the di irrep- concluded there must be “extraordinary mensions circum injury, great “both and immedi- arable area stance” are ate,” injunction before such an is war- necessarily Younger same as stating, In so the court wrote: ranted. Nonetheless, it would seem anom area. hold that the types injury, . Certain same alous cost, pre-tri which could not suffice for anxiety, and incon- claim particular, would, nonetheless, having against sup habeas relief to defend al venience injunction pending prosecution, port could not single criminal prosecution. ‘irrepara- Aside from other be considered by themselves consideration, legal pressed sense would be hard special ble’ disparate results stem- such functioning to reconcile orderly of state evidencing similar ming from doctrines processes. comity. federalism principles therefore, will, reverse the Order We context, the slightly In a different Su- district court and direct acknowledging that while preme corpus be dismissed scrupulous is entitled to ob- prosecu- an accused injunction against state safeguards, of constitutional disposition vacated. This makes servance tion be stated: nevertheless reach the sub- unnecessary for us to *12 Petitioner’s claimed de- issue of stantive “Bearing discomfiture and cost right speedy to a as to nial of by crime even prosecution express opinion. no person painful is one of innocent citizenship. The obligations of correct- SEITZ, Judge, concurs in the re- Chief rejection of a trial court’s even of ness sult. by a constitutional claim made the ac- process prosecution cused SEITZ, (concurring). Judge Chief await his conviction before its must emphasis concur in the result. I appellate reconsideration tribu- v. 30th Supreme Court in Braden by the (citation omitted). nal.” Kentucky, 410 Judicial Circuit Court States, Cobbledick United 84 L.Ed. (1973), on the fact (1940). pro- a state did not seek to abort there Kenny, In United States v. 462 F.2d compels me to conclude that ceeding we reversed the dis- here, where, pend- of a a “derailment grant injunction court’s of an trict proceeding” sought, interven- ing state pending proceed- state criminal against permit- court cannot be a federal despite the ings, defendant’s claim that ted. immunity grant of federal any subsequent should bar prosecution. state We stated:

“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