13-4781-pr
Jordan v. Bailey


                                   UNITED STATES COURT OF APPEALS
                                       FOR THE SECOND CIRCUIT

                                                  SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007 IS PERMITTED AND IS GOVERNED BY
FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT'S LOCAL RULE 32.1.1.
WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST
CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION
"SUMMARY ORDER"). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON
ANY PARTY NOT REPRESENTED BY COUNSEL.


              At a stated term of the United States Court of Appeals for the Second
Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in
the City of New York, on the 19th day of June, two thousand fourteen.

PRESENT:            BARRINGTON D. PARKER,
                    DENNY CHIN,
                               Circuit Judges,
                    WILLIAM K. SESSIONS, III,
                               District Judge.*

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GIGI JORDAN,
                                        Petitioner-Appellant,

                              v.                                               13-4781-pr

ALEX BAILEY, Warden of Rose M. Singer Center,
Rikers Island Correctional Facility and ERIC




          *    The Honorable William K. Sessions, III, of the United States District Court for the
District of Vermont, sitting by designation.
SCHNEIDERMAN, Attorney General of the State of
New York,
                    Respondents-Appellees.

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FOR PETITIONER-APPELLANT:                                    NORMAN H. SIEGEL, Siegel, Teitelbaum &
                                                             Evans LLP, New York (Ronald L. Kuby, Law
                                                             Office of Ronald L. Kuby, New York, New
                                                             York, Michael G. Dowd, The Law Office of
                                                             Michael G. Dowd, New York, New York, Allan
                                                             L. Brenner, The Law Office of Allan Brenner,
                                                             Long Beach, New York, on the brief).

FOR RESPONDENTS-APPELLEES:                                   SARA ZAUSMER, Assistant District Attorney
                                                             (Alan Gadlin, Assistant District Attorney, on
                                                             the brief), for Cyrus R. Vance, Jr., District
                                                             Attorney of New York County, New York,
                                                             New York.

                    Appeal from the United States District Court for the Southern District of

New York (Forrest, J.).

                    UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,

ADJUDGED, AND DECREED that the order of the district court is AFFIRMED.

                    Petitioner-Appellant Gigi Jordan has been detained since February 5, 2010,

awaiting her trial in the Supreme Court of the State of New York, New York County, on

charges of second-degree murder for killing her eight-year-old son. This appeal is from

a final order of the United States District Court for the Southern District of New York,

filed December 2, 2013, denying Jordan's petition for a writ of habeas corpus pursuant

to 28 U.S.C. § 2241. On December 11, 2013, the district court issued a certificate of

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appealability as to three issues: First, "[w]hether the [district court's] application of the

abstention doctrine was inapposite to the issue of the petitioner's state detention

violating her federal due process rights," second, "[w]hether the inability of existing

state remedies to provide swift review of petitioner's due process claim renders state

remedies futile and inadequate and nullifies exhaustion as a bar to federal review on

the merits," and third, "[w]hether petitioner's detention in excess of 44 months violates

her federal due process rights." Order, Dec. 11, 2013, at 1-2.

              As an initial matter, we note that after the district court issued the

certificate of appealability, the New York Court of Appeals denied Jordan's motion for

leave to appeal the denial of habeas corpus relief. People ex rel. Kuby v. Agro, 5 N.E.3d

591 (N.Y. 2014). Accordingly, we do not address the second question. Nor do we reach

the third question. Instead, we affirm, without prejudice, the district court's denial of

the writ on the grounds that abstention pursuant to Younger v. Harris, 401 U.S. 37 (1971),

is appropriate at this time.

              "Younger generally requires federal courts to abstain from taking

jurisdiction over federal constitutional claims that involve or call into question ongoing

state proceedings." Diamond "D" Const. Corp. v. McGowan, 282 F.3d 191, 198 (2d Cir.

2002). The doctrine of federal abstention "is grounded in principles of comity and

federalism and is premised on the belief that a state proceeding provides a sufficient

forum for federal constitutional claims." Schlagler v. Phillips, 166 F.3d 439, 442 (2d Cir.

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1999). Hence, only "'in cases of proven harassment or prosecutions undertaken by state

officials in bad faith,'" Diamond "D." Const. Corp., 282 F.3d at 199 (quoting Perez v.

Ledesma, 401 U.S. 82, 85 (1971)), or "if 'extraordinary circumstances' render the state

court incapable of fairly and fully adjudicating the federal issues before it, can there be

any relaxation of the deference to be accorded to the state criminal process," id. at 201

(quoting Kugler v. Helfant, 421 U.S. 117, 124 (1975)). Although "[t]he very nature of

'extraordinary circumstances' . . . makes it impossible to anticipate and define every

situation that might create a sufficient threat of such great, immediate, and irreparable

injury as to warrant intervention in state criminal proceedings," at the very least, "such

circumstances must be 'extraordinary' in the sense of creating an extraordinarily

pressing need for immediate federal equitable relief." Id. (quoting Kugler, 421 U.S. at

124-25).

              Younger abstention ordinarily applies to a state court's bail application

proceedings. See Wallace v. Kern, 520 F.2d 400, 405-06 (2d Cir. 1975). Accordingly,

absent bad faith or extraordinary circumstances, it would not be appropriate for us to

grant a writ in this case. Jordan argues that her prolonged pretrial detention constitutes

an extraordinary circumstance that warrants federal intervention. In light of the fact

that a trial date has been set for early September, however, we are not persuaded that

"an extraordinarily pressing need for immediate federal equitable relief" exists at this

time. Diamond "D." Const. Corp., 282 F.3d at 201 (quoting Kugler, 421 U.S. at 125).

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               Nevertheless, we note our concerns. Jordan has been detained for some 52

months. Although "[l]ength of a detention period will rarely by itself offend due

process," United States v. Orena, 986 F.2d 628, 631 (2d Cir. 1993), the length of pretrial

incarceration here is highly troubling and, on its face, raises substantial questions. See

United States v. Gonzales Claudio, 806 F.2d 334, 340 (2d Cir. 1986) (noting "at some point

the length of confinement would exceed constitutional limits regardless of the

circumstances"). Moreover, while Jordan is responsible for some of the delay, the

prosecution likewise is responsible as well, as the trial court found. See Decision and

Order, Aug. 2, 2013, at 2 (noting both parties "are responsible, to some degree, for the

delay"); cf. Gonzales Claudio, 806 F.2d at 342-43 ("It suffices . . . to conclude that the

Government, even if not deserving of blame, bears a responsibility for a portion of the

delay significant enough to add considerable weight to the defendants' claim that the

duration of detention has exceeded constitutional limits."). Finally, we note our concern

with two arguments advanced by the prosecution, that (1) nothing Jordan might

propose in a bail application would be sufficient to overcome her risk of flight, and (2)

no period of delay would constitute extraordinary circumstances sufficient to warrant

intervention by a federal court. Although we do not decide these issues now, we note

our skepticism.

               In sum, because trial has been tentatively set for early September, we do

not, at this time, find extraordinary circumstances that create a pressing need for federal

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relief. Therefore, pursuant to Younger, we abstain from reaching Jordan's due process

claim. In light of our concerns, however, we note that if trial does not commence by

October 1, 2014, extraordinary circumstances may make the issuance of a writ granting

bail appropriate. Accordingly, the final order of the district court is AFFIRMED,

without prejudice to the refiling of a habeas petition in the district court in the event of

further delay.

                                           FOR THE COURT:
                                           Catherine O'Hagan Wolfe, Clerk




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