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Nerrah Brown, Aka Keenan G. Wilkins v. Gregory J. Ahern

April 12, 2012

NERRAH BROWN, AKA KEENAN G. WILKINS,
PETITIONER-APPELLANT,
v.
GREGORY J. AHERN, SHERIFF,
RESPONDENT-APPELLEE.



Appeal from the United States District Court for the Northern District of California Jeremy Fogel, District Judge, Presiding D.C. No. 5:10-cv-05331-JF

The opinion of the court was delivered by: Hug, Circuit Judge:

FOR PUBLICATION

OPINION

Argued and Submitted February 13, 2012-San Francisco, California

Before: Procter Hug, Jr., Betty B. Fletcher, and Richard A. Paez, Circuit Judges.

Opinion by Judge Hug

3973

OPINION

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 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 ...


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