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April 24, 1992

DAVID FIERRO, et al., Plaintiffs, -v.- JAMES GOMEZ, et al., Defendants.

The opinion of the court was delivered by: MARILYN HALL PATEL

 Subsequent to the filing of this court's memorandum and order of April 18, 1992, a three-judge panel of the Ninth Circuit vacated the temporary restraining order issued in the above memorandum. See Appendix A. Judge Noonan dissented. See Appendix B. Pursuant to the Ninth Circuit's direction this court vacated the temporary restraining order. See Appendix C. One day after the execution of Robert Harris on April 21, 1992, Judges Alarcon and Brunetti recalled and vacated their writ of mandamus, and withdrew their opinion vacating this court's temporary restraining order. See Appendix D.

 Accordingly, the defendants shall file their answer to plaintiffs' complaint within twenty (20) days of the date of this order and this matter will be set down for a hearing on the preliminary injunction at a time to be agreed upon by the parties. The hearing date of April 28, 1992 is vacated as there is no immediacy for the hearing or reason why the temporary restraining order should not expire on April 28, 1992.


 Dated: APR 24 1992


 United States District Judge














 Real Parties in Interest

 No. 92-70237

 [Related to N.D. Cal.

 No. C-92-1482-MHP]

 OPINION - April 20, 1992, Filed

 On Emergency Petition for Writ of Mandamus

 Argued and submitted

 April 19, 1992, San Francisco, California


 Opinion by Judge Alarcon

 Before: ALARCON, BRUNETTI, and NOONAN, Circuit Judges.

 ALARCON, Circuit Judge.

 On Friday, April 17, 1992, Robert Alton Harris, and two other condemned prisoners, filed two actions seeking to halt his execution scheduled for April 21, 1992. In this matter, Harris filed a civil rights action pursuant to Section 1983. He seeks a permanent injunction banning the use of lethal gas in the execution of a judgment by death. On the same date, Harris filed a petition for a writ of habeas corpus in the Supreme Court of California. In his habeas corpus action he asked the California Supreme Court to issue a stay of execution. Harris did not claim in his petition before the California Supreme Court that the use of lethal gas, in the execution of a judgment imposing the death penalty, violated the federal constitution. Since he was sentenced to death on March 6, 1979, Harris has filed five petitions for a writ of habeas corpus in the California Supreme Court. In none of them has he challenged the use of lethal gas to execute the trial court's judgment.

 On March 13, 1992, counsel for Harris appeared before the Superior Court of the State of California for the County of San Diego. On that date, the court issued an order that Robert Alton Harris should suffer the death penalty on April 21, 1992. No motion was made before the state trial court to prevent the Warden of the State Prison of the State of California, at San Quentin Prison from executing the judgment of the court by lethal gas. As noted above, no review has been sought before the California Supreme Court of the March 13, 1992, order that the warden "carry into effect the judgment of the court by putting to death the said Robert Alton Harris in the manner and means prescribed by law on the twenty-first day of April, 1992." (Emphasis added.)

 On Saturday evening, April 18, 1992, the district court issued a temporary restraining order enjoining James Gomez, the Director of the California Department of Corrections, and Daniel Vasquez, the Warden of the San Quentin Prison "from inflicting the punishment of death upon Plaintiffs or any class member by administration of lethal gas."

 Petitioners, James Gomez and Daniel Vasquez (hereinafter the "State"), seek an emergency writ of mandamus to the United States District Court for the Northern District of California. Petitioners request this court to vacate a Temporary Restraining Order issued on April 18, 1992, in the case of Fierro v. Gomez, No. C-92-1482 (N.D. Cal. April 18, 1992). The State contends that the district court lacked the jurisdiction to enjoin the execution of the state court's judgment under the principles of federalism and comity first announced in Younger v. Harris, 401 U.S. 37, 27 L. Ed. 2d 669, 91 S. Ct. 746 (1971). We agree and grant the petition for a writ of mandamus, and vacate the temporary restraining order forthwith.


 Mandamus is an extraordinary remedy that may be used to challenge an otherwise unappealable order if the district court's exercise of jurisdiction "was clearly erroneous as a matter of law." See Bauman v. United States, 557 F.2d 650, 654-55 (9th Cir. 1977). The State argues that the district court was required to dismiss the action under Younger v. Harris. In Younger v. Harris, the court held that federal courts "cannot interfere with state prosecutions." Id. at 675. The basis for the Younger Abstention Doctrine is contained in the following passage:

 This underlying reason for restraining courts of equity from interfering with criminal prosecutions is reinforced by an even more vital consideration, the notion of "comity," that is, a proper respect for state functions, a recognition of the fact that the entire country is made up of a Union of separate state governments, and a continuance of the belief that the National Government will fare best if the States and their institutions are left free to perform their separate functions in their separate ways. This, perhaps for lack of a better and clearer way to describe it, is referred to by many as "Our Federalism," and one familiar with the profound debates that ushered our Federal Constitution into existence is bound to respect those who remain loyal to the ideals and dreams of "Our Federalism." The concept does not mean blind deference to "States' Rights" any more than it means centralization of control over every important issue in our National Government and its courts. The Framers rejected both these courses. What the concept does represent is a system in which there is sensitivity to the legitimate interests of both State and National Governments, and in which the National Government, anxious though it may be to vindicate and protect federal rights and federal ...

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