Karl Coleman v. Pam Ahlin

NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS FILED

FOR THE NINTH CIRCUIT OCT 07 2013

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

KARL COLEMAN, No. 12-15779

Petitioner - Appellant, D.C. No. 3:10-cv-04675-THE

v.

MEMORANDUM*

PAM AHLIN,

Respondent - Appellee.

Appeal from the United States District Court for the Northern District of California Thelton E. Henderson, Senior District Judge, Presiding

Argued and Submitted September 11, 2013 San Francisco, California

Before: WALLACE and BERZON, Circuit Judges, and ZOUHARY, District Judge.**

1. This Court reviews de novo whether abstention under Younger v. Harris,

401 U.S. 37 (1971), is required. Potrero Hills Landfill, Inc. v. Cnty. of Solano, 657

F.3d 876, 881 (9th Cir. 2011). The District Court did not err by sua sponte

* This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. ** The Honorable Jack Zouhary, District Judge for the U.S. District Court for the Northern District of Ohio, sitting by designation. dismissing Coleman’s habeas petition. A state waives…

concurring in part and dissenting in part:

I join the majority with respect to its holding that the district court correctly applied the Younger abstention doctrine. However, I dissent from both the majority’s decision to vacate one “aspect” of the district court’s order and its decision to remand this case to the district court. Before the district court and in his opening brief on appeal, the sole relief sought by Coleman was to be “discharged from ... confinement.” Thus, the issue of whether Coleman “may file another pretrial federal habeas petition seeking to enforce his speedy trial rights,” in the event that he were to “exhaust properly a Braden-like claim seeking an immediate trial in state court,” is not before us. Because this issue is not before us, I would decline to address it. See, e.g., City of Emeryville v. Robinson, 621 F.3d 1251 , 1258 n. 5 (9th Cir.2010) (explaining that where a party does not challenge a district court’s ruling as to an issue in its opening brief, “that issue is not before us on appeal”).

MEMORANDUM **

1. This Court reviews de novo whether abstention under Younger v. Harris, 401 U.S. 37 , 91 S.Ct. 746 , 27 L.Ed.2d 669 (1971), is required. Potrero Hills Landfill, Inc. v. Cnty. of Solano, 657 F.3d 876, 881 (9th Cir.2011). The District Court did not err by sua sponte dismissing Coleman’s habeas petition. A state waives Younger only where it “expressly urged [the federal court] to proceed to an adjudication of the constitutional merits.” Ohio Civil Rights Comm’n v. Dayton Christian Sch., Inc., 477 U.S. 619, 626 , 106 S.Ct. 2718 , 91 L.Ed.2d 512 (1986). Here, although it filed a motion to dismiss based only on timeliness, the State did not “expressly urge” the District Court to reach the merits of Coleman’s constitutional *551 claims, and did not waive application of the Younger doctrine.

The authority cited by Coleman does not compel a contrary conclusion. In McNeely v. Blanas, 386 F.3d 822 (9th Cir.2003), we did not discuss abstention under Younger or any other doctrine, and did not address whether the right to raise Younger had been waived. And Boardman v. Estelle, 957 F.2d 1523 (9th Cir.1992), concerned not Younger abstention but waiver of the defense of…