Nerrah Brown v. Gregory Ahern
FILED OPINION (PROCTER R. HUG, BETTY BINNS FLETCHER and RICHARD A. PAEZ) AFFIRMED. Judge: PRH Authoring, FILED AND ENTERED JUDGMENT. 
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
NERRAH BROWN, aka Keenan G.
GREGORY J. AHERN, Sheriff,
Appeal from the United States District Court
for the Northern District of California
Jeremy Fogel, District Judge, Presiding
Argued and Submitted
February 13, 2012—San Francisco, California
Filed April 12, 2012
Before: Procter Hug, Jr., Betty B. Fletcher, and
Richard A. Paez, Circuit Judges.
Opinion by Judge Hug
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BROWN v. AHERN
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J. Frank McCabe, Burlingame, California, for the petitionerappellant.
Jill M. Thayer, Deputy Attorney General, San Francisco, California, for the respondent-appellee.
HUG, Circuit Judge:
Since our decision in Carden v. Montana, the rule of this
circuit has been that, absent specifically defined extraordinary
circumstances, principles of federalism and comity prohibit a
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BROWN v. AHERN
federal district court from entertaining a pre-conviction
habeas petition that raises a Speedy Trial claim as an affirmative defense to state prosecution. 626 F.2d 82, 83 (9th Cir.
1980). This appeal presents the question whether McNeely v.
Blanas, 336 F.3d. 822 (9th Cir. 2003), altered that rule. We
hold that it did not.
Appellant Nerrah Brown was arrested and charged with
robbery in the State of California in March of 2007. Since the
date of Brown’s arrest, the state has filed additional charges
against him and held two preliminary hearings in his consolidated criminal case. The state has also begun initial trial proceedings, but for various reasons it still has not tried Brown
as of the date of this appeal.
At one of his preliminary hearings and in separate petitions
before the California courts, Brown sought dismissal of the
charges against him based on the claim that the state had violated his rights under the Speedy Trial Clause of the United
States Constitution. The state courts summarily rejected
Brown’s petitions. Brown then raised his Speedy Trial claim
in a petition for writ of habeas corpus in federal district court
under 28 U.S.C. § 2241, requesting a permanent stay of the
state criminal charges against him. The federal district court
declined to reach the merits of Brown’s claim, holding that
principles of federalism precluded review of Brown’s petition
before he had been tried and convicted in state court. The district court accordingly dismissed Brown’s petition without
prejudice, leaving Brown free to raise his Speedy Trial claim
in a post-conviction habeas petition.
Brown now appeals the district court’s order. He argues
that the district court erred in dismissing his habeas petition
based on abstention principles. We have jurisdiction under 28
U.S.C. § 2253, and we affirm.
BROWN v. AHERN
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 In Carden v. Montana, we applied the abstention doctrine of Younger v. Harris, 401 U.S. 37 (1971), to preclude
the exercise of federal jurisdiction over a habeas corpus petition in which the petitioner raised a Speedy Trial claim as an
affirmative defense to state prosecution. See Carden, 626 F.2d
at 83. Younger established the rule that fundamental principles of comity and federalism prohibit the federal courts from
enjoining ongoing state proceedings except under “extraordinary circumstances.” See Younger, 401 U.S. at 45. Although
Younger did not explicitly address the application of abstention principles outside the context of federal injunctions, our
opinion in Carden recognized that a federal court’s exercise
of jurisdiction over a habeas petition that raises an affirmative
defense to state prosecution before trial and conviction can
have the same effect as a direct injunction of ongoing state
proceedings. See Carden, 626 F.2d at 83. Thus we held that
the “logical implication” of Younger’s rule against enjoining
state proceedings is that abstention principles likewise prohibit a federal court from considering a pre-conviction habeas
petition that seeks preemptively to litigate an affirmative constitutional defense unless the petitioner can demonstrate that
“extraordinary circumstances” warrant federal intervention.
See id. We further observed that Perez v. Ledesma, 401 U.S.
82 (1971), a case the Supreme Court decided contemporaneously with Younger, limited the category of “extraordinary
circumstances” to encompass only “cases of proven harassment or prosecutions undertaken by state officials in bad faith
without hope of obtaining a valid conviction,” or where “irreparable injury can be shown.” Carden, 626 F.2d at 84.
 Consistent with this observation, 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. See id. at
84. We expressed agreement with the then-recent Third Cir-
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BROWN v. AHERN
cuit decision Moore v. DeYoung, 515 F.2d 437 (3d Cir. 1975),
holding that “unlike the Double Jeopardy Clause, the Speedy
Trial Clause, when raised as an affirmative defense, does not
embody a right [that] is necessarily forfeited by delaying
review until after trial.” Carden, 626 F.2d at 84. Thus, we
held that unless a state defendant proves that one of the “extraordinary circumstances” established in Perez applies, he
must wait to bring a Speedy Trial claim in federal court until
after trial and conviction. See id. Because the Cardens had
proved no injury independent of the Speedy Trial violation
itself, we noted that the “appropriate remedy [was for the Cardens] to proceed to trial and thereafter raise their speedy trial
claim if they wish to do so.” See id.
Our decision in Carden found additional support for the
conclusion that Younger abstention logically applies in the
habeas corpus context from another Supreme Court decision,
Braden v. 30th Judicial Circuit Court of Kentucky, 410 U.S.
484 (1973). In that case, the Court considered whether abstention principles prohibited a federal district court from granting
pre-conviction habeas relief to a petitioner who sought an
order requiring the state to initiate trial proceedings in his
criminal case. See id. at 489-90. The petitioner’s claim in Braden was that the State of Kentucky’s decision to postpone
bringing him to trial on state charges until after he completed
a prison sentence in Alabama violated the Speedy Trial guarantee of Smith v. Hooey, 393 U.S. 374 (1969), which requires
a state to make efforts to bring a prisoner of another jurisdiction to trial on charges in that state. See Braden, 410 U.S. at
490. The Court agreed and held that Braden was entitled to
rectify this constitutional violation by seeking through a
§ 2241 federal habeas petition to enforce the state’s “affirmative constitutional obligation” to transport him from the other
jurisdiction and bring him to trial. See id. at 489-91.
In permitting Braden to raise his Hooey Speedy Trial claim
in a § 2241 habeas petition, the Court emphasized that its
decision did not disturb the well-established rule that “habeas
BROWN v. AHERN
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corpus does not lie, absent ‘special circumstances,’ to adjudicate the merits of an affirmative defense to a state criminal
charge prior to a judgment of conviction by a state court.” See
id. at 489. That rule did not apply to Braden’s case, the Court
explained, because Braden was not attempting to litigate the
merits of an affirmative defense to his state prosecution. See
id. at 491. Rather, Braden’s habeas petition simply asked the
federal courts “to enforce the [state’s] obligation to provide
him with a state court forum.” See id. There was no dispute
that the Kentucky prosecution against Braden was temporarily
stalled and would not be re-commenced until after he had
served his sentence in Alabama. See id. Thus, there was no
concern that Braden was attempting to use federal habeas to
circumvent the state courts. The distinction between a habeas
petition whose purpose is to forestall state prosecution and
one that seeks to initiate that prosecution was critical to the
Court, as evidenced by the statement concluding its abstention
discussion: “We emphasize that nothing we have said would
permit the derailment of a pending state proceeding by an
attempt to litigate constitutional defenses prematurely in federal court.” See id. 493.
Following the decisions in both Braden and Carden, we
again considered a pre-conviction habeas petition claiming
violation of the Speedy Trial Clause in McNeely v. Blanas.
336 F.3d. at 824-25. The petitioner in that case (McNeely)
claimed in his pro se habeas petition that the state had violated his Speedy Trial rights by failing to bring him to trial on
state charges over four years after they had been filed. See id.
at 824. Without discussing Carden or the abstention doctrine,
the district court rejected McNeely’s claim on the merits. On
appeal, and again without reference to the abstention doctrine,
we reversed. Id. Noting that the state had not yet conducted
a preliminary hearing or trial on the charges against McNeely
at the time of his federal appeal, we held that the state had
violated McNeely’s rights under the Speedy Trial Clause and
ordered him released from state custody “with prejudice to the
re-prosecution of the criminal charges.” See id. at 824, 832.
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BROWN v. AHERN
With these decisions as background, we turn to Brown’s
argument in this appeal that the district court erred in concluding that abstention principles precluded it from considering
the merits of his claim.
Brown’s habeas petition before the district court requested
an order dismissing the criminal charges against him based on
his claim that the state had violated his rights under the
Speedy Trial Clause. Applying the rule of Carden, the district
court concluded that principles of federalism and comity
required it to abstain from exercising habeas jurisdiction over
Brown’s petition. The district court accordingly instructed
Brown to delay bringing his Speedy Trial claim in a federal
forum until after he has been convicted at trial and first presented that claim to the state appellate courts.
Brown does not dispute here that, in asking for a dismissal
of state charges, his federal habeas petition raises a Speedy
Trial claim as an affirmative defense to state prosecution and
is thus foreclosed by the rule of Carden unless he demonstrates extraordinary circumstances. Nor does Brown argue
that any of the extraordinary circumstances we identified in
Carden apply in his case—i.e., he does not claim that the California prosecution against him was undertaken for harassment purposes or in bad faith without hope of obtaining a
valid conviction, or that he will be irreparably injured by
delaying his Speedy Trial claim until after a judgment of conviction in state court. Instead, Brown claims that the district
court should have considered the merits of his habeas petition
notwithstanding the abstention doctrine because we granted
pre-conviction habeas relief in McNeely, a case with facts
very similar to this one. In essence, Brown’s argument is that
the similarity between his case and McNeely is itself an “extraordinary circumstance” for purposes of the abstention doctrine that warrants pre-conviction habeas relief here.
BROWN v. AHERN
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Brown’s reliance on McNeely as a substitute for the “extraordinary circumstances” specifically enumerated in Carden
is misplaced. While Brown is correct that the habeas relief we
ordered in McNeely involved a Speedy Trial claim raised
before trial and conviction in state court, he errs in concluding
from that fact alone that McNeely abrogated or otherwise
altered the abstention rule of Carden. The district court in
McNeely did not discuss Carden but simply rejected the petitioner’s Speedy Trial claim on the merits. Our review on
appeal was limited to determining whether the district court’s
substantive holding was correct. The abstention issue accordingly formed no part of our analysis. Brown’s argument that
McNeely nevertheless created a special exception to ordinary
abstention requirements—and thereby sub silentio overruled
Carden in large part—is without merit and contrary to the
established law of this circuit that three-judge panels are
bound by the decisions of previous panels. See Miller v. Gammie, 335 F.3d 889, 899 (9th Cir. 2003) (en banc).
 The McNeely decision simply confirms that a state may
“effectively waiv[e]” an abstention defense by “voluntarily
submit[ting] to federal jurisdiction even though it might have
had a tenable claim for abstention.” See Kleenwell Biohazard
Waste & Gen. Ecology Consultants, Inc. v. Nelson, 48 F.3d
391, 394 (9th Cir. 1995) (quoting Ohio Civil Rights Comm’n
v. Dayton Christian Schools, Inc., 477 U.S. 619, 626 (1986)).
McNeely did not affect the well-established and constitutionally sound rule of Carden that, when a state does avail itself
of the abstention doctrine as a defense to the exercise of federal habeas jurisdiction, that doctrine requires dismissal of a
habeas petition that prematurely raises a Speedy Trial defense
to state prosecution.
 In this case, the state raised Carden as a defense to the
district court’s exercise of jurisdiction from the outset. Thus,
Brown’s habeas petition is squarely governed by Carden. The
district court properly applied the rule of that case to hold that
abstention principles prohibited it from exercising jurisdiction
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BROWN v. AHERN
over Brown’s habeas petition. We affirm the district court’s
order in full.
 Lest any doubt remain, we clarify: the rule of this circuit is that abstention principles generally require a federal
district court to abstain from exercising jurisdiction over a
habeas petition in which the petitioner raises a claim under the
Speedy Trial Clause as an affirmative defense to state prosecution. The only exceptions are “cases of proven harassment
or prosecutions undertaken by state officials in bad faith without hope of obtaining a valid conviction,” or “in other extraordinary circumstances where irreparable injury can be shown.”
Carden, 626 F.2d at 84. Our decision in McNeely did not alter
that rule and thus cannot serve as the basis for a habeas petitioner’s claimed exemption from ordinary principles of
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