FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

NERRAH BROWN, aka Keenan G. 

Wilkins, No. 11-15767

Petitioner-Appellant, D.C. No.  v. 5:10-cv-05331-JF

GREGORY J. AHERN, Sheriff, OPINION

Respondent-Appellee. 

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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COUNSEL

J. Frank McCabe, Burlingame, California, for the petitionerappellant.

Jill M. Thayer, Deputy Attorney General, San Francisco, California, for the respondent-appellee. 

OPINION

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

BROWN v. AHERN 3975
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.

I

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.

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II

[1] 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. 

[2] 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 CirBROWN v. AHERN 3977
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

3978 BROWN v. AHERN
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.

BROWN v. AHERN 3979
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.

III

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.

3980 BROWN v. AHERN
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).

[3] 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.

[4] 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

BROWN v. AHERN 3981
over Brown’s habeas petition. We affirm the district court’s

order in full.

IV

[5] 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

abstention. 

AFFIRMED.

3982 BROWN v. AHERN