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Drury v. Cox

United States Court of Appeals, Ninth Circuit
Mar 7, 1972
457 F.2d 764 (9th Cir. 1972)
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Summary

holding that, except in the "most unusual circumstances," a defendant is barred from challenging his state prosecution in federal court before the "judgment has been appealed from and the case concluded in the state courts."

Summary of this case from Linthecome v. McMahon
See 8 Summaries

Opinion

No. 71-2759.

March 7, 1972.

Howard A. Kashman, Pima County Public Defender, Tucson, Ariz., for petitioner-appellant.

Gary K. Nelson, Atty. Gen., Rose Silver, Pima County Atty., John L. Augustine, Deputy County Atty., Tucson, Ariz., for respondent-appellee.

Appeal from the United States District Court for the District of Arizona.

Before CHAMBERS, KOELSCH and CHOY, Circuit Judges.

PER CURIAM:

The district court considered the issue in this case to be whether the evidence at a preliminary hearing before an Arizona State Magistrate was sufficient to establish probable cause to bind Drury over for trial on an open charge of murder, degree unspecified. The Arizona Supreme Court held the evidence sufficient. Drury v. Burr, 107 Ariz. 124, 483 P.2d 539 (1971). The district court, after an independent review of the record, agreed and denied Drury's petition for habeas corpus without a hearing. Drury appeals, claiming that his detention for trial amounted to a denial of due process because of lack of probable cause.

We affirm on different grounds. Our reading of Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669, convinces us that only in the most unusual circumstances is a defendant entitled to have federal interposition by way of injunction or habeas corpus until after the jury comes in, judgment has been appealed from and the case concluded in the state courts. Apparent finality of one issue is not enough.

The order denying relief is affirmed.

The mandate will issue now.

Summaries of

Drury v. Cox

United States Court of Appeals, Ninth Circuit
Mar 7, 1972
457 F.2d 764 (9th Cir. 1972)

holding that, except in the "most unusual circumstances," a defendant is barred from challenging his state prosecution in federal court before the "judgment has been appealed from and the case concluded in the state courts."

Summary of this case from Linthecome v. McMahon

declining to entertain a petition claiming that the state lacked probable cause to bind a defendant over for trial when the defendant had not yet been convicted in state court

Summary of this case from Phillips v. Vasquez

In Drury v. Cox, 457 F.2d 764, 764-65 (9th Cir. 1972), we stated that "only in the most unusual circumstances is a defendant entitled to have federal interposition by way of injunction or habeas corpus until after the jury comes in, judgment has been appealed from and the case concluded in the state courts."

Summary of this case from Carden v. State of Montana

stating that "only in the most unusual circumstances is a defendant entitled to have federal interposition by way of injunction or habeas corpus until after the jury comes in, judgment has been appealed from and the case concluded in the state courts."

Summary of this case from Dunsmore v. Jaime

In Drury v. Cox, 457 F.2d 764, 764-65 (9th Cir.1972) (per curiam), the Ninth Circuit stated that "[o]ur reading of Youngerv. Harris convinces us that only in the most unusual circumstances is a defendant entitled to have federal imposition by way of... habeas corpus until after the jury comes in, judgment has been appealed from and the case concluded in the state courts.

Summary of this case from Smith v. Fresno Cnty. Superior Court

declining to entertain a petition claiming that the state lacked probable cause to bind a defendant over for trial when proceedings against defendant were ongoing in state court

Summary of this case from Manizak v. Michigan

In Drury v. Cox, 457 F.2d 764 (9th Cir. 1972), a state prisoner brought a federal habeas corpus action asserting that the evidence at the preliminary hearing in his state court proceedings was not sufficient to establish probable cause to bind him over for trial on an open charge of murder.

Summary of this case from Langley v. Belleque

In Drury, the habeas petitioner had pursued Arizona remedies all the way to the Arizona Supreme Court in litigating his due process contention of lack of probable cause to bind him over for trial for murder. With the exhaustion requirement thus satisfied as to the constitutional issue, see Fay v. Noia, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963), the Ninth Circuit nevertheless ruled that "(a)pparent finality of one issue is not enough" and "only in the most unusual circumstances" is a defendant entitled to pretrial interposition by federal courts in a state criminal proceeding.

Summary of this case from Theriault v. Lamb
Case details for

Drury v. Cox

Case Details

Full title:JAMES E. DRURY, PETITIONER-APPELLANT, v. WILLIAM COY COX, SHERIFF OF PIMA…

Court:United States Court of Appeals, Ninth Circuit

Date published: Mar 7, 1972

Citations

457 F.2d 764 (9th Cir. 1972)

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