                           NOT FOR PUBLICATION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 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 (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 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, 336 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

nonretroactivity under Teague v. Lane, 489 U.S. 288 (1989). In Boardman, we

considered, but rejected, reliance on an analogy to Younger waiver, while

recognizing that a “state may waive Younger only by express statement, not

through failure to raise the issue.” 957 F.2d at 1535.

      2. Coleman argues that Younger does not apply to his pretrial habeas

petition based on a speedy trial claim. He relies primarily on the Supreme Court’s

decision in Braden v. 30th Judicial Circuit Court of Kentucky, 410 U.S. 484


                                          2
(1973). In Braden, however, the petitioner sought “only to demand enforcement of

the Commonwealth’s affirmative constitutional obligation to bring him promptly to

trial,” and had exhausted all available state remedies toward that end. Id. at 489-

90. Placing great weight on the fact that “petitioner made no effort to abort a state

proceeding or to disrupt the orderly functioning of state judicial processes,” and

that he came “to federal court, not in an effort to forestall a state prosecution, but to

enforce the Commonwealth’s obligation to provide him with a state court forum,”

Braden permitted the federal habeas proceeding to go forward. Id. at 491.

      In contrast, Younger principles preclude the adjudication of constitutional

speedy trial claims prior to conviction when a petitioner raises “a Speedy Trial

claim as an affirmative defense to state prosecution.” Brown v. Ahern, 676 F.3d

899, 900 (9th Cir. 2012) (citing Carden v. Montana, 626 F.2d 82, 83 (9th Cir.

1980)).

      Here, Coleman’s federal habeas petition did not, as in Braden, seek an order

requiring the state courts finally to adjudicate the civil commitment petition under

California’s Sexually Violent Predators Act (“SVPA”). Instead, the petition

alleged that excessive pretrial delay between August 2006 and 2009 in violation of

his constitutional rights “require[s] dismissal” of the petition and his “discharge




                                           3
from unconstitutional confinement.” Coleman’s petition is therefore foreclosed by

Carden and Brown unless he demonstrates that extraordinary circumstances exist.

      Extraordinary circumstances, such as prosecutorial harassment or bad faith

prosecution, have not been shown. See Gibson v. Berryhill, 411 U.S. 564, 573-74

(1973); Perez v. Ledesma, 401 U.S. 82, 85 (1971). 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.” Brown, 676 F.3d at

901 (citing Carden, 626 F.2d at 84).

      Finally, to the extent Coleman switched gears in his reply brief and at oral

argument to request a prompt trial in state court rather than dismissal, the record

does not show that Coleman exhausted such a claim. The present record does not

demonstrate that Coleman even objected to the repeated continuances of the trial.

      3. Because we affirm the District Court’s application of Younger abstention

to dismiss Coleman’s habeas petition, we do not address the alternative holding

that Coleman is procedurally barred from raising this claim in federal court.

      4. Finally, the District Court dismissed Coleman’s petition under Younger

“without prejudice to refiling” only “after SVPA proceedings, including appeal, are

completed.” We vacate, in part, that aspect of the District Court’s judgment. If


                                          4
Coleman were to exhaust properly a Braden-like claim seeking an immediate trial

in state court, and was not granted a prompt trial in state court, he may file another

pretrial federal habeas petition seeking to enforce his speedy trial rights. Such a

pretrial federal habeas petition, like this one, would be brought under 28 U.S.C.

§ 2241(c)(3). See McNeely, 336 F.3d at 824 n.1. It thus would not be subject to

the bar on “second or successive” applications set forth in 28 U.S.C. § 2244, which

only applies to petitions brought under 28 U.S.C. § 2254 by persons being held

“subject to a judgment of a State court.” Accordingly, we vacate the District

Court’s order to the extent that it would prevent Coleman from bringing such a

petition before the state proceedings are final on appeal, and remand for entry of a

judgment of dismissal without prejudice, without any caveat or condition.

      AFFIRMED in part, VACATED in part, and REMANDED in part.

             Each party shall bear its own costs.




                                          5
                                                                                  FILED
Coleman v. Ahlin, No. 12-15579                                                     OCT 07 2013

                                                                               MOLLY C. DWYER, CLERK
WALLACE, Senior Circuit Judge, concurring in part and dissenting in part: COURT OF APPEALS
                                                                       U.S.



      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”).
