Opinion
No. C 01-01994 WHA
November 5, 2001
ORDER DISMISSING PETITION FOR WRIT OF HABEAS CORPUS
INTRODUCTION
Now before the Court is respondents' motion to dismiss Raymond Frazer's petition for writ of habeas corpus. This order GRANTS respondents' motion, finding dismissal necessary under the abstention principles set forth in Younger v. Harris, 401 U.S. 41 (1971).
STATEMENT
Raymond Frazer has filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241 and 2254. Unless otherwise noted, the following facts are taken from this petition. On October 21, 1996, petitioner was charged in Mendocino County Municipal Court with one count of committing a lewd act with a child under 14 in violation of California Penal Code Section 288(a). This act was alleged to have occurred in 1984. In 1984, the statute of limitations applicable to such an offense was six years. Cal. Penal Code § 800. In 1993, however, the California Legislature amended California Penal Code Section 803, adding a subsection (g). This subsection was also amended in 1996, with the changes becoming effective January 1, 1997. After the 1996 amendment, Section 803(g) read as follows:
(1) Notwithstanding any other limitation of time described in this chapter, a criminal complaint may be filed within one year of the date of a report to a California law enforcement agency by a person of any age alleging that he or she, while under the age of 18 years, was the victim of a crime described in Section 261, 286, 288, 288a, 288.5, 289, or 289.5.
Subsection 803(g) has since been amended further, but still retains its retroactive elements.
(2) This subdivision applies only if both of the following occur:
(A) The limitation period specified in Section 800 or 801 has expired.
(B) The crime involved substantial sexual conduct, as described in subdivision (b) in Section 1203.066
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(3)(A) Effective July 1, 1997, this subdivision applies to a cause of action arising before, on, or after January 1, 1994, the effective date of this subdivision, and if the complaint is filed within the time period specified in this subdivision, it shall revive any cause of action barred by Section 800 or 80l.
(B) Effective January 1, 1997, through June 30, 1997, this subdivision applies to a cause of action arising before, on, or after January 1, 1994, the effective date of this subdivision, and it shall revive any cause of action barred by Section 800 or 801 if either of the following occurs:
(1) The complaint is filed within the time period specified in this subdivision . . .
On December 5, 1996, petitioner filed a demurrer to the information, claiming that the prosecution was invalid under California Penal Code Section 800's six-year statute of limitations. Notwithstanding the state's opposition, the magistrate sustained the demurrer and dismissed the case because the statute of limitations had run. On March 4, 1997, the state moved in state trial court to reinstate the information. The state argued that, as amended, Section 803(g) brought petitioner's alleged offense within the statute of limitations. The trial court denied the state's motion, finding that retroactive application of Section 803(g) would violate the Ex Post Facto Clause.
The state then appealed to the California Court of Appeal, First Appellate District. Both parties addressed the Ex Post Facto Clause issue in their briefs. On December 22, 1997, the Court of Appeal affirmed the Superior Court. The state then sought review by the California Supreme Court. Review was granted, and the parties again briefed the Ex Post Facto Clause issue. On August 30, 1999, the California Supreme Court reversed. People v. Frazer, 21 Cal.4th 737 (1999). Relying on Collins v. Youngblood, 497 U.S. 37 (1990) and Beazell v. Ohio, 269 U.S. 167 (1925), the California Supreme Court found that Section 803(g) did not violate the Ex Post Facto Clause because it neither redefined criminal conduct nor increased the punishment for a crime, which it described as the "exclusive" categories of impermissible retroactive legislation. Frazer, 21 Cal.4th at 756, 763.
On January 13, 2000, petitioner filed a petition for certiorari with the United States Supreme Court; on May 15, 2000, it was denied. Two weeks before the denial, the United States Supreme Court decided Carmell v. Texas, 529 U.S. 513 (2000), an ex post facto case. Petitioner filed a petition for rehearing with the united States Supreme Court on June 8, 2000, asking for consideration of his petition for certiorari in light of Carmell. The United States Supreme Court denied this petition for rehearing on June 29, 2000.
On August 4, 2000, petitioner filed a motion asking the California Supreme Court to recall its remittitur in petitioner's case. The motion requested reconsideration in light of Carmell. Specifically, it contended that Carmell had reaffirmed that statutes changing the rules of evidence could constitute ex post facto laws, and that Section 803(g) 50 changed the operative rules of evidence applicable to petitioner. On November 29, 2000, this motion was denied. Between the filing of this motion and its denial, on August 11, 2000, the Mendocino County District Attorney filed an information against petitioner conforming in most respects to the information that had been filed in 1996. On September 25, 2000, petitioner filed a demurrer to the information, contending that Frazer was no longer good law under Carmell. On December 27, 2000, the state trial court overruled this demurrer.
Petitioner did not appeal this ruling to the California Court of Appeal. Instead, on May 22, 2001, prior to his trial, petitioner filed a Petition for writ of habeas corpus with this Court. On June 22, 2001, this Court ordered respondents to show cause why the writ should not issue. Immediately before trial was to begin, in August 2001, the parties agreed to continue the proceedings pending resolution of this petition. Respondents then replied to the petition with a motion to dismiss. Briefing and argument followed. The motion is now before the Court.
This agreement was reached with the cooperation of the general duty judge of this Court (not the undersigned) on call at that time.
ANALYSIS
This Court may entertain a petition for a writ of habeas corpus from a prisoner who is "in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2241(c)(3). Respondents contend that the instant petition for writ of habeas corpus must be dismissed because petitioner has failed to exhaust his state remedies; or, in the alternative, that dismissal is required under the abstention principles set forth in Younger v. Harris, 401 U.S. 37 (1971). Petitioner asserts that he has exhausted his state remedies, and that his case falls within one of several exceptions to this abstention doctrine. This order discusses, but does not reach a conclusion on the exhaustion issue, for it holds that Younger abstention is required regardless of whether petitioner has exhausted his state remedies.
The parties do not contest that petitioner is in custody for habeas corpus purposes. See Justices of Boston Municipal Court v. Lydon, 466 U.S. 294, 300-01 (1984).
1. Exhaustion.
The first grounds for dismissal invoked by respondents is that petitioner has not given the state a fair opportunity to rule on the merits of his claim. Specifically, the state asserts that petitioner has not "fairly presented" to California courts his argument that Frazer's interpretation of the Ex Post Facto Clause is no longer good law under Carmell.
A federal court will not grant an application for writ of habeas corpus unless the petitioner has exhausted remedies available in state court. 28 U.S.C. § 2254 (b)(1)(A). To exhaust, the petitioner must "fairly present" the substance of his claim to the state courts. Picard v. Connor, 404 U.S. 270, 275-76 (1971). This means giving state courts an "opportunity to apply controlling legal principles to the facts bearing upon [the] constitutional claim." Id. at 277. In practice, it generally requires a petitioner to either reference specific provisions of the federal constitution or cite to relevant federal case law in his direct appeal. Lyons v. Crawford, 232 F.3d 666, 668 (9th Cir. 2000), as amended, 247 F.3d 904 (9th Cir. 2001). It is not required that the petitioner cite to exactly the same case authorities to the state and the federal habeas court, so long as intervening authority has not cast the legal issue in a fundamentally different light. Hudson v. Rushen, 686 F.2d 826, 830 (9th Cir. 1982).
Respondents contend that petitioner did not exhaust his state remedies because he is now making a different type of ex post facto argument than he did on direct review. The respondents' defense implicates the following enumeration of ex post facto laws, set forth in Calder v. Bull, 3 U.S. 386, 390 (1789):
1st. Every law that makes an action, done before the passing of the law, and which was innocent when done, criminal. 2nd. Every law that aggravates a crime, or makes it greater than it was, when committed. 3rd. Every law that changes the punishment, than the law annexed to the crime, when committed. 4th. Every law that alters the legal rules of evidence, and receives less, or different, testimony, than the law required at the time of the commission of the offence, in order to convict the offender.
The state asserts that on direct appeal through to the California Supreme Court, petitioner alleged that Section 803(g) violated the Ex Post Facto Clause under precedent such as Collins because it denied him an otherwise-available defense, the running of the statute of limitations under Section 800. In his motion to recall the remittitur, his subsequent demurrer at state trial court, and in his federal habeas petition, petitioner contends that Section 803(g)'s constitutional shortcoming lies in the fact that it changes the rules of evidence applicable to him, and therefore falls within Calder's fourth category of prohibited laws. Frazer believed that this category had been eliminated by Beazell and Collins; Carmell made clear it had not. Respondents assert that petitioner is now making an altogether new ex post facto argument, one which relies on Carmell and attacks the very precedent petitioner relied upon on direct appeal. They contend that he has not given the state a fair chance to pass on this new argument's merits.
The record does not include petitioner's briefs on direct appeal.
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The question, then, is whether, by virtue of referencing the Ex Post Facto Clause (but making a different argument thereunder) on direct appeal, and then making the same argument as at present in a motion to recall the remittitur, petitioner has exhausted his state remedies. As mentioned earlier, a petitioner must "fairly present" his constitutional claim to state courts. In normal circumstances, as per Lyons, this means that he must refer to the particular constitutional provision on direct appeal that he invokes in habeas. Neither side has brought before the Court a Ninth Circuit decision addressing a situation like that at hand, where a petitioner invoked the same constitutional clause on direct appeal and in habeas, but made different arguments at each juncture. Other circuits have found that when the new argument casts the constitutional question "in a fundamentally different light," failure to exhaust remedies as to this new argument amounts to a failure to exhaust. Domaingue v. Butterworth, 641 F.2d 8, 12 (1st Cir. 1981). This conforms with the rule and language set forth in Blair v. California, 340 F.2d 741 (9th Cir. 1965), and reaffirmed in Hudson, that when an intervening decision casts a legal issue in a fundamentally different light, state courts should be allowed to rule on the merits of the claim. Blair, 340 F.2d at 744-45.
The complication here is that Frazer addressed, at least in passing, both petitioner's past and present arguments. Much of Frazer addresses why Section 803(g) does not run afoul of the Ex Post Facto Clause, notwithstanding its abrogation of a previously available defense. Footnote 16, meanwhile, speaks to petitioner's present claim:
The foregoing excerpt from Beazell omits from Justice Chase's definition of ex post facto laws in Calder any postcrime alteration in "the legal rules of evidence, [that] received less, or different testimony, than the law required at the time of the commission of the offence, in order to convict the offender." As we explain above in the text, the high court approved Beazell's formulation of the ex post facto doctrine in Collins. In so doing, Collins acknowledged the difference between the Beazell and Calder tests insofar as postcrime evidentiary changes were concerned, and offered the following explanation: "As cases subsequent to Calder make clear, [Calder] was not intended to prohibit the application of new evidentiary rules in trials for crimes committed before the changes."
We note the high court recently agreed to review a Texas Court of Appeals decision (Carmell) which relied on Hopt v. Utah to reject an ex post facto challenge to a statutory change which altered, adversely to the defendant, the evidentiary weight to be placed on testimony by a sexual assault victim, depending on when the victim first reported the crime. The "outcry statute" at issue in Carmell — unlike [S]ection 803(g) — does not appear to operate as a statue of limitations governing the time at which criminal charges may be filed.
Frazer, 21 Cal.4th at 755 (citations omitted). This footnote indicates that not only did Frazer understand Carmell's significance, but also that Frazer distinguished Carmell from the essential basis of any claim petitioner might make — namely, that the change in the statute of limitations violated the Ex Post Facto Clause.
Furthermore, petitioner made the argument he asserts in his habeas petition in his motion to recall the remittitur. A motion to recall the remittitur is a unique California remedy whereby the petitioner asks the Court of Appeal or Supreme Court to reassert its jurisdiction over a case after its has relinquished that jurisdiction by issuing a remittitur following the final determination of the appeal. Hayward v. Stone, 496 F.2d 844, 845 (9th Cir. 1974). The California Supreme Court's denial of an application to recall the remittitur amounts to an exhaustion of state remedies where, and only where, an appropriate remedy is reinstatement of the appeal. Id. at 846.
Here, it is undisputed that petitioner raised the same claim in his motion to recall the remittitur as he does in his habeas petition. Reinstatement of his appeal to the California Supreme Court arguably would have been an appropriate remedy, although the California Supreme Court may have regarded trial, then appeal, as more fitting.
In their briefs, respondents also contend that a motion to recall the remittitur was an inappropriate avenue for relief because "[a]s a general rule, an error of law does not authorize the recalling of a remittitur." People v. Mulch, 4 Cal.3d 389, 396 (1971). Mutch, however, also provides that an exception is made to this rule "when the error is of such dimensions as to entitle the defendant to a writ of habeas corpus. Then the remedy of recall of the remittitur may then be deemed an adjunct to the writ, and will be granted when appropriate." Ibid. Whether that exception applies here is a complicated question, going to the central issue raised in respondents' motion (the propriety of pretrial habeas relief, in this case on a state level).
This order does not delve even further into state law to determine whether exhaustion has occurred, however. Rather, it concludes in its Section Two that Younger abstention is required regardless of the outcome of this exhaustion analysis. The exhaustion issue has been addressed in some detail because of the weight afforded it by the parties, and because the near certainty of appeal makes it important to discuss what will become an essential matter should the reviewing court disagree with this order as to Younger.
2. Younger Abstention.
A conclusion that petitioner has exhausted his state remedies would not end matters, in any event. Younger abstention might still bar consideration of the petition. Under the Younger abstention doctrine, barring exceptional circumstances, federal courts may not stay or enjoin pending state criminal court proceedings. Carden v. Montana, 626 F.2d 82, 83 (9th Cir. 1980). If Younger abstention applies, a court may not retain jurisdiction, but should dismiss the action. Judice v. Vail, 430 U.S. 327, 348 (1977). Courts have "long recognized that in some circumstances considerations of comity and concerns for the orderly administration of criminal justice require a federal court to forego the exercise of its habeas corpus power." Francis v. Henderson, 425 U.S. 536, 539 (1976). In the habeas context, Younger abstention promotes both interests of comity and judicial economy. A habeas petitioner may be acquitted at trial, or on appeal, thereby mooting the federal issue in the petition. Sherwood v. Tomkins, 716 F.2d 632, 634 (9th Cir. 1983).
Younger abstention is required when: (1) state judicial proceedings are pending; (2) the state proceedings involve important state interests; and (3) the state proceedings afford an adequate opportunity to raise the federal issue, meaning that there is no procedural bar preventing a party from raising the issue. Communications Telesystems Int'l v. California Pub. Util. Comm'n, 196 F.3d 1011, 1019 (9th Cir. 1999); Dubinka v. Judges of the Superior Court, 23 F.3d 218, 223 (9th Cir. 1994). All three of these requirements are satisfied in the present case. Abstention is therefore required unless an exception to Younger applies. Younger exceptions are few and far between: "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." Drury v. Cox, 457 F.2d 764, 764-65 (9th Cir. 1972).
A. Double Jeopardy and the "Power to Prosecute."
Petitioner contends that his petition rails within the recognized exception to Younger that allows federal courts to consider a habeas petition raising a Double Jeopardy Clause claim before an allegedly unconstitutional state court trial. Mannes v. Gillespie, 967 F.2d 1310, 1312 (9th Cir. 1992); Hartley v. Neely, 701 F.2d 780, 781 (9th Cir. 1983). Petitioner contends that this exception encompasses pretrial habeas attacks on the "power to prosecute" when a petitioner has fully exhausted state remedies.
Only one decision, not cited by either party, is closely on point. Santiago v. Forman, No. Civ. A. 98-11699-PBS, 1999 WL 350654 at *1 (D. Mass. Feb. 9, 1999). Santiago allowed a petitioner to bring a pretrial habeas petition that alleged an Ex Post Facto Clause violation. Santiago framed the issue as involving only the exhaustion of state remedies. It did not thoroughly consider Younger abstention, let alone whether a "power to prosecute" exception exists. As discussed below, this Court disagrees with the result in Santiago, and by implication with petitioner. This order finds that the double-jeopardy exception does not extend as far as petitioner wishes. Boring a new hole through Younger is unwarranted.
Courts construe the double-jeopardy exception to Younger narrowly. In Boston Municipal Court v. Lydon, 466 U.S. 294 (1984), the majority held (without mentioning Younger) that a petitioner could bring a pretrial habeas petition challenging the constitutionality of his retrial on double-jeopardy grounds. But Lydon never averred that pretrial habeas relief was available to all petitioners attacking the state's "power to prosecute." Far from it:
We should keep in mind this respect the unique nature of the double jeopardy right. . . . Because the [Double Jeopardy] Clause "protects interests wholly unrelated to the propriety of any subsequent conviction, a requirement that a defendant run the entire gamut of state procedures, including retrial, prior to consideration of his claim in federal court, would require him to sacrifice one of the protections of the Double Jeopardy Clause.
Id. at 302-03 (citations omitted). Sec also id. at 340 (O'Connor, concurring) ("The Court makes clear . . . its view that double jeopardy claims are `unique' for federal habeas purposes").
Other decisions discussing the exception have declined to expand its reach beyond the limited sphere of double-jeopardy and some speedy-trial claims. One decision remarked that double-jeopardy violations represented the sole grounds for a Younger exception. Sherwood, 716 F.2d at 634 n. 2 (describing double jeopardy claims as "sui generis"). The First Circuit recently determined that "[w]ith the notable exceptions of cases involving double jeopardy and certain speedy trial claims, federal habeas relief, as a general rule, is not available to defendants seeking pretrial review of constitutional challenges to state criminal proceedings." In re Justices of the Superior Court Dep't of the Mass. Trial Court, 218 F.3d 11, 19 (1st Cir. 2000). See also Gilliam v. Foster, 75 F.3d 881, 905 (4th Cir. 1996) (agreeing to hear a pretrial double-jeopardy petition, but cautioning that "equitable federal court interference with ongoing criminal proceedings should be undertaken in only the most limited, narrow, and circumscribed situations").
It is evident, therefore, that courts have effectively staked the boundaries of the double-jeopardy exception. As defined, the exception does not encompass all challenges to the "power to prosecute." Many different arguments could be cast as concerning such a power, or as "protecting interests wholly unrelated to the propriety of any subsequent conviction": Batson challenges; prosecutorial delay that allegedly violates the Due Process Clause; etc. If federal courts recognized pretrial petitions under all such circumstances, they would substantially disrupt processes of state decisionmaking.
Extending the double-jeopardy exception only so far as to cover petitioner's ex post facto challenge would impermissibly broaden its scope. First, as discussed above no decision seriously considering the exception has determined that it applies absent a double-jeopardy or speedy-trial claim. Second, if a pretrial habeas petition were recognized in this case, it would be difficult to limit the availability of such relief in the future. The Double Jeopardy Clause protects against multiple convictions and "against being twice put to trial for the same offense." Abney v. United States, 431 U.S. 651, 662 (1977) (emphasis added). The nexus between the protected right and the need for pretrial habeas relief is clear. The Ex Post Facto Clause, meanwhile, serves a diffuse array of interests: "fundamental justice"; fair warning as to the effect of legislative enactments; and reinforcement of the separation of powers. Carmell, 529 U.S. at 531 n. 2 1. The difference between the purposes served by the two clauses was recognized in Gully v. Kunzman, 592 F.2d 283, 286-87 (6th Cir. 1979). Gully allowed pretrial habeas petitioners to proceed with a double-jeopardy claim, but not their ex post facto challenge:
The decision identifying a Younger exception in a speedy-trial context is Braden v. 30th Judicial Circuit Court of Kentucky, 410 U.S. 484 (1973). Braden is a unique case because the petitioner there used habeas relief to compel, not avoid, his state trial. Braden "emphasize[d] 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." Id. at 491. See also Neville v. Cavanagh, 611 F.2d 673, 676 (7th Cir. 1979) (discussing Braden).
[W]e think double jeopardy claims, by their very nature, do involve exceptional circumstances warranting an exercise of the (habeas) power despite the attendant risk of interfering with state proceedings. One who sets up a defense under the double jeopardy clause to a pending criminal prosecution is asserting a constitutional immunity from having to undergo "the risk or hazard of trial and conviction" and does not seek merely to avoid "the ultimate legal consequences of (an adverse) verdict."
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The same cannot be said for petitioners' claims under the due process, ex post facto, and equal protection clauses of the Constitution. These provisions insure notice, regularity and impartiality in connection with trials and similar treatment of similar cases. None, however, involves the "right not to be tried" which lies at the heart of the double jeopardy guarantee.
Given the lack of a nexus among the rights protected by the Double Jeopardy Clause and the interests guarded by the Ex Post Facto Clause, granting habeas relief in petitioner's admittedly sympathetic case would open the door to all kinds of attacks on the "power to prosecute." Not enough similarities exist between the rights protected by the two clauses to form the basis of a limiting principle.
B. Exhaustion.
Petitioner contends that even if pretrial habeas relief does not exist for all challenges to the "power to prosecute," it should nonetheless be available to a petitioner making such a challenge who has exhausted his state pretrial remedies.
Even this step would broaden the Younger exception well beyond its current boundaries. Currently, a prisoner who has exhausted his pretrial remedies may seek habeas relief only if additional "special circumstances" warrant federal intervention. Carden, 626 F.2d at 84. Cf. Mass. Trial Court, 218 F.3d at 19. Carden's facts are instructive. There, two habeas petitioners alleged that the state had violated their constitutional right to a speedy trial. All parties agreed that the petitioners had exhausted their pretrial state remedies before bringing their petition. The district court concluded that given such exhaustion, pretrial federal habeas relief was consistent with the principles of federalism and comity protected by Younger, and granted the writ. Id. at 83. The Ninth Circuit reversed. Although petitioners had exhausted their pretrial remedies, the prospect of an unconstitutional trial did not constitute "special circumstances" demanding federal intervention. Id. at 84. The Carden court construed "special circumstances" as involving only prosecutorial bad faith, and perhaps the double-jeopardy exception as well; neither applied. Nor do they here. As in Carden, federal intervention in petitioner's state-court proceedings would be inappropriate at this time. See also Neville v. Cavanagh, 611 F.2d 673, 675-76 n. 2 (7th Cir. 1979) (rejecting a habeas petition as premature notwithstanding prior exhaustion of state remedies and petitioner's contention that indictment violated Interstate Agreement on Detainers Act, thereby stripping state of "power to prosecute"); Gully, 592 F.2d at 286 (recognizing that double jeopardy claims, but not ex post facto claims, constitute "exceptional circumstances").
In making his argument, petitioner relies on Means v. Northern Cheyenne Tribal Court, 154 F.3d 941 (9th Cir. 1998), overruled on other grounds by United States v. Enas, 255 F.3d 662 (9th Cir. 2001). Means bears some facial similarities to the present case. Means considered the habeas petition of a Native American set to be tried in the courts of a tribe to which he did not belong. Between 1978 and 1988, the petitioner had allegedly committed several aggravated sexual assaults. In 1990, Congress passed the Indian Civil Rights Act, which afforded tribal courts jurisdiction over members of other tribes. Petitioner was arrested in 1997. If the ICRA applied as to him, the tribal court could try him. If not, it could not. He moved to dismiss for lack of jurisdiction, alleging that application of the ICRA as to him violated the Ex Post Facto Clause. The tribal trial court denied his motion. He appealed to the tribal court of appeals, but his appeal was also denied. He then filed a habeas petition in federal district court. The petition was heard but denied on the merits.
On appeal to the Ninth Circuit, the tribe argued that the district court should not have heard the petition in the first place, because no "special circumstances" warranted interruption of the tribal trial. In addressing this argument, Means noted that "the general reluctance to interfere with on-going state criminal trials can generally be said to extend to tribal courts." Id. at 949. Means then explained how this reluctance was addressed when the interruption of tribal proceedings was involved. "However," Means added, "this is usually examined in the context of the requirement that tribal remedies be exhausted before the federal court will get involved. The `principles of federalism and comity' that preclude most pre-trial grants of habeas relief are reflected here in the exhaustion requirement" (emphasis added). Ibid. Means then went on to find that under tribal exhaustion principles, the petitioner had in fact exhausted his claim (or that he did not need to exhaust) such that it could be heard in habeas.
It is clear from the foregoing that Means, faced with a tribal trial, did not apply Younger, which concerns ongoing state proceedings. In fact, Means never mentioned or cited to Younger (nor did it refer to a "power to prosecute" exception). It looked instead to a well-developed body of tribal exhaustion principles very different from the law that has taken shape around Younger.
These differences are significant. As evidenced by Means' use of the word "however" in introducing the tribal exhaustion requirement, federal courts have refused to read the "special circumstances" requirement out of Younger when state courts, as opposed to tribal courts, are concerned. See Mass. Trial Court, 218 E.3d at 19; Carden, 626 F.2d at 84; Neville, 611 F.2d at 676. Instead, "special circumstances" are required in addition to exhaustion where state courts are involved. Moreover, tribal exhaustion principles historically have not posed as strong a bar to federal intervention as has Younger. For example, Means noted that there is no exhaustion requirement when a tribal court attempts to exert jurisdiction over a person not a member of that tribe. Means, 154 F.3d at 949, citing Selam v. Warm Springs Tribal Correctional Facility, 134 F.3d 948, 945 (9th Cir. 1998). Means' holding, in short, simply recognizes that a lesser showing than that demanded under Younger is required before a federal court will interrupt tribal-court trials of non-tribe members. Despite its superficial similarity to this case, there is nothing within Means that provides grounds for carving out a Younger "power to prosecute" exception applicable to pretrial state petitioners.
C. Limiting Construction.
Petitioner also contends that the court should not abstain here because Section 803(g) "is not obviously susceptible of a limiting construction" (Opp. 23). This argument implicates (and confuses) two different types of abstention.
The language used by petitioner comes from a decision considering whether to abstain under Railroad Comm'n v. Pullman Co., 312 U.S. 496, 500 (194 V). City of Houston v. Hill, 482 U.S. 451, 468 (1987). Pullman abstention is not Younger abstention — Pullman is discretionary, not mandatory; and it is not being invoked in this case. Even if applicable, the decision cited by petitioner are not on point. Pullman provides that federal courts may abstain where federal constitutional issues are raised in connection with state statutes whose interpretation is unsettled. The normal practice is for the federal court to stay proceedings while the plaintiff litigates the unsettled matter in state court. Almodovar v. Reiner, 832 F.2d 1138, 1141 (9th Cir. 1987). Hill, along with other cases identified by petitioner, found Pullman abstention improper when plaintiffs made facial attacks on statutes incapable of constitutional constructions. Hill, 482 U.S. at 468. Under those circumstances, the futility of Pullman abstention is obvious: the federal issue can never be avoided, and a plaintiff (as well as others affected by the statute) will invariably suffer from needless delay. With habeas proceedings, in contrast, there is every chance that the state court proceedings can "settle" matters by acquitting the petitioner and thereby avoid the constitutional issue.
Although he primarily cites to decisions rejecting Pullman abstention, in making his "limiting construction" argument petitioner also cites in passing to Younger. A court may deviate from Younger's general rule of abstention when a statute is "flagrantly and patently violative of express constitutional prohibitions in every clause, sentence and paragraph, and in whatever manner and against whomever an effort might be made to apply it." Younger, 401 U.S. at 53-54. As suggested by Younger's language, this exception is "very narrow." Dubinka, 23 F.3d at 225. This case does not fall within this narrow exception. Regardless of this Court's opinion as to whether Section 803(g) is constitutional or unconstitutional, reasonable minds can have honest disagreements on the issue.
D. Comity.
Petitioner's final argument is that Younger abstention is inappropriate since the state has already submitted to the federal court's jurisdiction to hear this dismissal motion, obviating comity concerns. This contention is not supported by the facts of this case. Petitioner should not take undue advantage of the state's willingness to comply with habeas procedure, so that it can proceed to trial.
CONCLUSION
For the reasons above, respondent's motion to dismiss Frazer's petition for writ of habeas corpus is GRANTED. The clerk SHALL close the file.
IT IS SO ORDERED.