                                                                               FILED
                                                                   United States Court of Appeals
                                        PUBLISH                            Tenth Circuit

                         UNITED STATES COURT OF APPEALS                December 23, 2019

                                                                       Elisabeth A. Shumaker
                               FOR THE TENTH CIRCUIT                       Clerk of Court
                           _________________________________

    DOUGLAS RAY WINN,

          Petitioner - Appellant,

    v.
                                                              No. 19-5013
    MAX COOK, Creek County District
    Attorney,

          Respondent - Appellee,

    and

    DOUGLAS W. GOLDEN, Creek County
    District Judge,

          Respondent.
                           _________________________________

                        Appeal from the United States District Court
                          for the Northern District of Oklahoma
                            (D.C. No. 4:18-CV-00382-JED-JFJ)
                          _________________________________

Submitted on the briefs:*

Robert D. Gifford, II, Gifford Law, P.L.L.C., Oklahoma City, Oklahoma for Petitioner-
Appellant.
_________________________________

Before HARTZ, PHILLIPS, and EID, Circuit Judges.

*
  After examining the briefs and appellate record, this panel has determined unanimously
that oral argument would not materially assist in the determination of this appeal. See
Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted
without oral argument.
                         _________________________________

HARTZ, Circuit Judge.
                         _________________________________

       Applicant Douglas Ray Winn seeks a certificate of appealability (COA) to appeal

the denial by the United States District Court for the Northern District of Oklahoma of

his application for relief under 28 U.S.C. § 2241. See 28 U.S.C. § 2253(c)(1)(A)

(requiring COA for state prisoner to appeal denial of relief under § 2241); Montez v.

McKinna, 208 F.3d 862, 866–69 (10th Cir. 2000). Applicant signed a waiver of his right

to a jury trial during his state criminal proceeding. But he then claimed the waiver was

invalid, and he filed his § 2241 application asking the district court to order the state

court to conduct a jury trial. Concluding that the waiver was valid, the district court

denied relief. We deny a COA and dismiss the appeal. We rely, however, on the ground

that Younger v. Harris, 401 U.S. 37 (1971), precludes federal-court intervention.

       I.     BACKGROUND

       Applicant was charged in Oklahoma state court with domestic abuse (assault and

battery) and related offenses. At a pretrial hearing he signed a waiver of his right to a

jury trial so that he could qualify for a state mental-health court program. Because he did

not complete the program, his case was put back on the trial docket. He then filed a

motion in the state trial court for reinstatement of a jury trial, stating his waiver was not

knowing, willing, or voluntary. There was no transcript of the pretrial hearing, so the

court held an evidentiary hearing. Applicant testified that he had believed he was signing

paperwork to enter the mental-health program, rather than signing a waiver, because he


                                               2
did not read the paperwork. He further claimed he did not recall either his attorney or the

judge advising him about the waiver. Applicant’s then-attorney testified that although he

could not remember specifically discussing the waiver with Applicant, his standard

practice is to advise defendants of the rights they are waiving and the permanence of such

a waiver. The court determined that the waiver was knowing and voluntary and denied

Applicant’s motion.

       Applicant filed a petition for emergency relief with the Oklahoma Court of

Criminal Appeals (OCCA) seeking either a writ of prohibition or writ of mandamus. But

the OCCA ruled that Applicant could not establish that the lower court’s denial of his

jury-trial motion was “unauthorized by law,” as required for a writ of prohibition, nor

could he show that he had a “clear legal right to the relief sought,” as required for a writ

of mandamus. Aplt. App. at 139–41 (Okla. Crim. App., Order Den. Pet. (June 29, 2018)

at 2–3).

       Applicant then sought federal-court relief under § 2241, requesting an order

requiring the state court to provide him a jury trial. The State responded that Applicant

had validly waived his right to a jury trial, and the district court agreed. The court also

held (1) that Applicant had exhausted his available state remedies by raising his invalid-

waiver claim in the state trial court and then seeking emergency relief from the OCCA on

the same ground, and (2) that it was not required to abstain from exercising jurisdiction

under Younger. Because we hold that the district court should have abstained, we need

not address any other issues.



                                              3
       II.    STANDARD FOR COA

       Applicant is not entitled to a COA if no reasonable jurist would find it debatable

that his application (1) fails to state a valid constitutional claim or (2) is procedurally

barred. See Slack v. McDaniel, 529 U.S. 473, 484 (2000). He fails on the procedural

prong, because the district court was required to abstain under Younger. We review de

novo the district court’s ruling regarding abstention. See Walck v. Edmonson, 472 F.3d

1227, 1232 (10th Cir. 2007).

       III.   YOUNGER ABSTENTION

              A.      The General Rule

       Under the Younger abstention doctrine, federal courts are to abstain from

exercising jurisdiction to interfere with state proceedings when the following three

requirements are met:

       (1) there is an ongoing state criminal, civil, or administrative proceeding,
       (2) the state court provides an adequate forum to hear the claims raised in
       the federal complaint, and (3) the state proceedings involve important state
       interests, matters which traditionally look to state law for their resolution or
       implicate separately articulated state policies.

Chapman v. Oklahoma, 472 F.3d 747, 749 (10th Cir. 2006). All three requirements are

satisfied here. First, the parties do not dispute that there is an ongoing state criminal

proceeding.

       With regard to the second factor, “unless state law clearly bars the interposition of

the federal statutory and constitutional claims,” a plaintiff typically has “an adequate

opportunity to raise federal claims in state court.” Crown Point I, LLC v. Intermountain

Rural Elec. Ass’n, 319 F.3d 1211, 1215 (10th Cir. 2003) (brackets and internal quotation

                                               4
marks omitted). Applicant offers no reason to think that Oklahoma state courts would

not provide an adequate forum to review his claim, nor can we discern one. Indeed, the

state trial court conducted an evidentiary hearing on the claim. Younger requires only the

availability of an adequate state-court forum, not a favorable result in the state forum.

See Moore v. Sims, 442 U.S. 415, 430 (1979) (adequate forum existed when state law

posed no procedural barriers to raising constitutional claims). To be sure, proceedings

for emergency review by the OCCA provide only a limited opportunity for relief, but an

adverse decision does not preclude later plenary review on direct appeal. See Kimmel v.

Wallace, 370 P.2d 844, 846 (Okla. Crim. App. 1962) (denying emergency relief because

“a plain, clear and adequate remedy at law, by [direct] appeal to [the OCCA]” was

available to the petitioner to later obtain review of his due-process claim). And the fact

that state-writ relief may be limited does not change the Younger analysis. See Davis v.

Lansing, 851 F.2d 72, 73, 76 (2d Cir. 1988) (despite denial of petitions for writs of

mandamus and prohibition in state court, Younger required abstention because

defendant’s claims could be raised on direct appeal in state court); see also Sweeney v.

Bartow, 612 F.3d 571, 573 (7th Cir. 2010) (Younger applies even if person seeking

injunction has pursued all state remedies to block proceeding).

       Finally, the third Younger requirement is met. For the purposes of Younger, state

criminal proceedings are viewed as “a traditional area of state concern.” Seneca-Cayuga

Tribe of Okla v. Oklahoma ex rel. Thompson, 874 F.2d 709, 713 (10th Cir. 1989); see

Doran v. Salem Inn, Inc., 422 U.S. 922, 931 (1975) (injunction against state criminal-

enforcement activities “seriously impairs the State’s interest in enforcing its criminal

                                              5
laws, and implicates the concerns for federalism which lie at the heart of Younger”);

Fisher v. Whetsel, 142 F. App’x 337, 339 (10th Cir. 2005) (“Oklahoma’s important

interest in enforcing its criminal laws through proceedings in its state courts remains

axiomatic.”).

                B.    Exceptions/Irreparable Injury

                      1.     In General

       When Younger’s three requirements are met, abstention is mandatory unless one

of three exceptions applies: the prosecution was “(1) commenced in bad faith or to

harass, (2) based on a flagrantly and patently unconstitutional statute, or (3) related to any

other such extraordinary circumstance creating a threat of ‘irreparable injury’ both great

and immediate.” Phelps v. Hamilton, 59 F.3d 1058, 1063–64 (10th Cir. 1995). Because

(1) neither Applicant nor the federal district court has suggested that there was bad faith

or harassment in state court and (2) there has been no challenge to the constitutionality of

any statute, we consider only whether the alleged violation of Applicant’s right to a jury

trial constitutes an irreparable injury meriting an exception to Younger.

       Younger said that “irreparable injury” significant enough to permit federal court

interference must pose a “threat to the plaintiff’s federally protected rights . . . that cannot

be eliminated by his defense against a single criminal prosecution.” 401 U.S. at 46.

“[T]he cost, anxiety, and inconvenience of having to defend against a single criminal

prosecution, could not by themselves be considered ‘irreparable’ in the special legal

sense of that term.” Id. If there is no injury “other than that incidental to every criminal

proceeding brought lawfully and in good faith,” id. at 47, there is no irreparable injury.

                                               6
In other words, an error by the state court does not create an irreparable injury simply

because the defendant must proceed through the tainted trial before obtaining relief—

relief that may well entail a second trial. For example, in Samuels v. Mackell, 401 U.S.

66 (1971), the defendant sought to enjoin his trial for violating an allegedly

unconstitutional state anarchy statute. The Court held that having to endure a state

criminal trial was not an immediate irreparable injury warranting federal relief. Id. at 67–

69; see Perez v. Ledesma, 401 U.S. 82, 85 (1971) (declining to find irreparable injury

where defendant sought suppression and return of allegedly obscene material to be used

in criminal prosecution, as he “was free to present his federal constitutional claims . . . to

the Louisiana courts”); see also Allee v. Medrano, 416 U.S. 802, 839 (1974) (Burger,

C.J., concurring in the result in part and dissenting in part) (“It will be the rare case,

indeed, where a single prosecution provides the quantum of harm that will justify

interference.”).

       In accord with this authority, we have consistently refused to find an exception to

Younger when the injury could ultimately be corrected through the pending state

proceeding or on appeal. In Sweeten v. Sneddon, 463 F.2d 713, 714–15 (10th Cir. 1972),

we considered a claim that a Utah state court was violating a defendant’s Sixth

Amendment rights by refusing to appoint counsel. The right to counsel is a fundamental

trial right recognized by the Sixth Amendment. See Lockhart v. Fretwell, 506 U.S. 364,

368 (1993) (“Our decisions have emphasized that the Sixth Amendment right to counsel

exists in order to protect the fundamental right to a fair trial.” (internal quotation marks

omitted)). Yet we held that the district court erred in enjoining the state proceeding

                                               7
because the defendant “ha[d] an adequate remedy at law in the state trial of this case, an

appeal to the state supreme court, and the right to petition the Supreme Court of the

United States for review of any federal question.” Sweeten, 463 F.2d at 715. We also

abstained in Dolack v. Allenbrand, 548 F.2d 891, 894–95 (10th Cir. 1977), where the

defendant asserted his due-process rights were violated by the untimely appointment of

counsel. We said that his “hav[ing] to stand trial is not an ‘irreparable injury,’” and he

would “not lose the eventual opportunity to assert his constitutional rights.” Dolack, 548

F.2d at 894–95; see also Tyler v. Russel, 410 F.2d 490, 492 (10th Cir. 1969) (pre-

Younger decision refusing to enjoin pending state criminal prosecution despite

defendant’s claim that prosecution violated Fourth Amendment, noting that “[n]o great

and irreparable injury results to him which would not result to any other person charged

with the same crime”).

       Other circuits have similarly interpreted “irreparable injury” under Younger. See

Lansing, 851 F.2d at 73–74, 77 (Younger prevented issuance of order directing state court

to either release defendant or prevent state judge from disallowing the defendant’s

peremptory challenges under Batson v. Kentucky, 476 U.S. 79 (1986); defendant’s claim

that he would “suffer irreparable harm if his trial proceeds with an improperly constituted

jury” was rejected because “burden of defending a criminal prosecution is, of course,

insufficient without more to constitute irreparable harm”); Palmer v. City of Chicago, 755

F.2d 560, 575–76 (7th Cir. 1985) (Younger barred injunction restraining state officials

from continuing alleged practice of withholding material exculpatory evidence from

defendants facing trial; the constitutional claims could be adequately raised in the

                                              8
ongoing criminal proceedings); Davis v. Muellar, 643 F.2d 521, 525 (8th Cir. 1981)

(abstaining from determining whether state charges against Indian defendant should be

dismissed because defendant was taken into state custody on his reservation without a

tribal extradition hearing; requiring defendant to “defend himself in a criminal trial would

not justify habeas corpus relief under the ‘both great and immediate’ irreparable injury

test of Younger”).

       It is important to note than in several of these cases the relief granted by a state

appeal would likely not terminate the prosecution of the defendant but would result only

in a new trial. See Sweeten, 463 F.2d at 715 (denial of counsel in first trial); Lansing, 851

F.2d at 76 (alleged Batson error at first trial); Palmer, 755 F.2d at 575–76 (alleged

withholding of exculpatory evidence at first trial); Muellar, 643 F.2d at 525 (failure to

properly extradite Indian from reservation).

       So when would a defendant suffer irreparable injury from state trial proceedings if

relief could come only after an appeal? The federal courts have recognized two

circumstances: (1) when the defendant’s trial is being delayed in violation of the

constitutional right to a speedy trial, and (2) when the current trial would violate the

Double Jeopardy Clause.1


1
  This is not to say that Younger’s third exception has not been invoked in other
criminal-proceeding contexts. In Gibson v. Berryhill, 411 U.S. 564, 577 (1973), the Court
said that “the predicate for a Younger v. Harris dismissal was lacking . . . [when the state
agency that could afford relief] was incompetent by reason of bias to adjudicate the
issues.” One can read Gibson as an example of an inadequate state forum, see Erwin
Chemerinsky, Federal Jurisdiction § 13.5, at 910 (7th ed. 2016), thus failing Younger’s
second requirement. But both the Supreme Court, see Kugler v. Helfant, 421 U.S. 117,
125 n. 4 (1975), and a leading treatise, Richard H. Fallon et al., Hart and Wechsler’s The
                                               9
                      2.     Right to a Speedy Trial

       The first circumstance was recognized by the Supreme Court in Braden v. 30th

Judicial Circuit Court of Kentucky, 410 U.S. 484, 485 (1973), though the Court did not

explicitly discuss Younger’s requirements or exceptions. The defendant complained that

the State had violated his Sixth Amendment speedy-trial right by not bringing him to trial

while he was confined in another State. See id. at 485–86. The Court upheld the federal

district court’s order that the State bring him to trial or release him. See id. at 486. In

doing so, the Court distinguished between two aspects of the right to a speedy trial: it

was ordering a state court to conduct a speedy trial, not requiring the state court to

dismiss a charge because it had not been tried in a timely fashion. The Court permitted

the defendant’s effort to seek “enforcement of the [State’s] affirmative constitutional

obligation to bring [the petitioner] promptly to trial,” but was not authorizing an effort to



Federal Courts and the Federal System 1098–99 (6th ed. 2009), have instead
characterized it as falling under the third, catch-all extraordinary-circumstances
exception.

        Also, the Supreme Court has held that Younger does not apply to injunctions
sought by a defendant when grant of the injunction “could not prejudice the conduct of
the trial on the merits.” Gerstein v. Pugh, 420 U.S. 103, 108 n. 9 (1975) (challenge to
pretrial detention without a judicial hearing). The Ninth Circuit has held that in similar
circumstances, abstention is also improper because the defendant faces irreparable injury.
See Page v. King, 932 F.3d 898, 904 (9th Cir. 2019) (challenge to pretrial detention;
because “loss of liberty for the time of pretrial detention is ‘irretrievable’ regardless of
the outcome at trial,” defendant’s claim “fits squarely within the irreparable harm
exception to Younger” (internal quotation marks omitted)); Arevalo v. Hennessy, 882
F.3d 763, 767 (9th Cir. 2018) (Younger did not preclude adjudicating pretrial habeas
petition alleging defendant was being jailed without a constitutionally adequate bail
hearing because “[d]eprivation of physical liberty by detention constitutes irreparable
harm”).
                                              10
“litigate a federal defense to a criminal charge.” Id. at 489. It “emphasize[d] that nothing

we have said would permit the derailment of a pending state proceeding by an attempt to

litigate constitutional defenses prematurely in federal court.” Id. at 493. Because the

defendant “made no effort to abort a state proceeding or to disrupt the orderly functioning

of state judicial processes” by requesting only that he be brought to trial, granting pretrial

relief did “not jeopardize any legitimate interest of federalism.” Id. at 491–92.

       Braden did not characterize its holding as an exception to the Younger doctrine. It

apparently thought that Younger was only marginally relevant (receiving merely a cf.

citation in a string cite on the exhaustion doctrine, see id. at 491) because of the absence

of a significant federalism interest, see id. at 491–92. But lower courts have examined

the significance of Braden to the Younger irreparable-injury exception. See Dolack, 548

F.2d at 894 (reading Braden as recognizing a “special circumstance[] . . . to take the case

out of the Younger doctrine”); Carden v. Montana, 626 F.2d 82, 84 (9th Cir. 1980)

(noting the limited scope of Braden and reversing dismissal by district court of pending

criminal charge on ground of denial of speedy trial); Moore v. DeYoung, 515 F.2d 437,

445–46 (3d Cir. 1975) (district court’s permanent injunction against defendant’s state

criminal proceedings because of alleged speedy-trial violation was “precisely the

situation anticipated” by Braden that should be prohibited under Younger).

       So why does a defendant face irreparable injury when he seeks an order requiring

that he be brought to trial but not when he seeks dismissal of the charges against him on

the ground that he has been denied a speedy trial? It is because in the first situation the

violation of the defendant’s rights is becoming more severe every day his trial is delayed,

                                              11
so failure to halt the violation causes additional injury to the constitutional right. But the

only injury that arises from delaying dismissal of the charges (until state remedies are

exhausted) is that the defendant must go through a trial and appeal, which is not the sort

of injury that satisfies the Younger exception; in particular, the process of proceeding

through a trial and appeal does no damage to the right to a speedy trial.

       The absence of irreparable injury in the latter circumstance was explained by the

Supreme Court in United States v. MacDonald, 435 U.S. 850 (1978). There the Court

needed to determine whether denial of the defendant’s pretrial motion to dismiss on

speedy-trial grounds was a final order that could be immediately appealed. See

MacDonald, 435 U.S. at 850, 857–58. The answer depended on the application of the

collateral-order doctrine, which treats certain interlocutory orders as final and appealable.

See id. at 853–54. One of the doctrine’s requirements for finality is that denial of the

appeal could cause irreparable damage to an important right. See id. at 854–55.

MacDonald held that an order rejecting a motion to dismiss for denial of the right to a

speedy trial did not satisfy that requirement of the collateral-order doctrine (or any other

requirement, for that matter). See id. at 860–61. “The order sought to be appealed,” said

the Court, “may not accurately be described, in the sense that the description has been

employed, as involving an important right which would be lost, probably irreparably, if

review had to await final judgment.” Id. at 860 (internal quotation marks omitted). It

explained:

       [T]he Speedy Trial Clause does not, either on its face or according to the
       decisions of this Court, encompass a “right not to be tried” which must be
       upheld prior to trial if it is to be enjoyed at all. It is the delay before trial,

                                               12
       not the trial itself, that offends against the constitutional guarantee of a
       speedy trial. If the [accused is denied] his right to a speedy trial, that loss,
       by definition, occurs before trial. Proceeding with the trial does not cause
       or compound the deprivation already suffered.

Id. at 861. The Ninth Circuit in Carden, 626 F.2d at 84, similarly determined that “the

Speedy Trial Clause, when raised as an affirmative defense, does not embody a right

which is necessarily forfeited by delaying review until after trial.” The court reversed the

district court’s grant of habeas relief because the defendants had “not shown how they

[would] be irreparably injured by waiting until after trial to assert their speedy trial

claim.” Id.

                      3.     Double Jeopardy

       This court has recognized a second circumstance in which Younger does not

require abstention from orders affecting a criminal trial: “where a criminal accused

presents a colorable claim that a forthcoming second state trial will constitute a violation

of her double jeopardy rights.” Walck, 472 F.3d at 1234. Requiring a defendant to go to

trial in violation of the Double Jeopardy Clause causes injury that cannot be remedied

after the trial begins. As we explained:

       “[T]he Double Jeopardy Clause . . . is a guarantee against being twice put
       to trial for the same offense. The guarantee’s protections would be lost if
       the accused were forced to run the gauntlet a second time before an appeal
       could be taken; even if the accused is acquitted, or, if convicted, has his
       conviction ultimately reversed on double jeopardy grounds, he has still
       been forced to endure a trial that the Double Jeopardy Clause was designed
       to prohibit.”

Id. at 1233 (quoting Abney v. United States, 431 U.S. 651, 660–62 (1977)) (further

brackets, ellipses, and internal quotation marks omitted). “‘A requirement that a


                                              13
defendant run the entire gamut of state procedures, including retrial, prior to

consideration of his claim in federal court, would require him to sacrifice one of the

protections of the Double Jeopardy Clause.’” Id. at 1234 (quoting Justices of Bos. Mun.

Court v. Lydon, 466 U.S. 294, 303 (1984)) (brackets omitted). The Double Jeopardy

clause “itself contains a guarantee that a trial will not occur.” United States v. Wampler,

624 F.3d 1330, 1336 (10th Cir. 2010). Other circuits have similarly recognized that a

viable double-jeopardy claim warrants an exception to Younger. See, e.g., Gilliam v.

Foster, 61 F.3d 1070, 1082 (4th Cir. 1995); Davis v. Herring, 800 F.2d 513, 516 (5th Cir.

1986); Satter v. Leapley, 977 F.2d 1259, 1261 (8th Cir. 1992); Mannes v. Gillespie, 967

F.2d 1310, 1312 (9th Cir. 1992).

       Circuit courts have not recognized any exceptions to Younger—outside the context

of the speedy-trial and double-jeopardy claims just discussed—when the defendant is

seeking relief regarding the trial itself. See In re Justices of Superior Court Dep’t of

Mass. Trial Court, 218 F.3d 11, 19 (1st Cir. 2000) (“With the notable exceptions of cases

involving double jeopardy and certain speedy trial claims, federal habeas relief, as a

general rule, is not available to defendants seeking pretrial review of constitutional

challenges to state criminal proceedings.”); Olsson v. Curran, 328 F. App’x 334, 335 (7th

Cir. 2009) (“Relief for state pretrial detainees through a federal petition for a writ of

habeas corpus is generally limited to speedy trial and double jeopardy claims.”). Younger

does not require abstention in the two exceptional circumstances because “federal

intervention is necessary to prevent the challenge from becoming moot.” Sweeney, 612

F.3d at 573.

                                              14
              C.      Application to this Case

       We now turn to whether abstention was required in this case. Relying on Braden

and Walck, the district court concluded that Younger would not preclude the relief sought

by Applicant because he “could be irreparably harmed if the state proceeds with a non-

jury trial based on [his] allegedly invalid waiver of his right to a jury trial.” District Ct.

Order at 9. We respectfully disagree. A nonjury trial would not cause Applicant

irreparable injury in the sense relevant to Younger.

       The district court’s decision that Younger does not bar a federal court from

ordering that a defendant’s upcoming state trial be held before a jury rather than a judge

is (to our knowledge) unprecedented. Our analysis begins with an examination of the

constitutional right to a jury trial. The Sixth Amendment states: “In all criminal

prosecutions, the accused shall enjoy the right to a . . . trial, by an impartial jury.” U.S.

Const. amend. VI. Thus, before someone is subjected to criminal penalties, he or she has

the right to have guilt decided by a jury. But this provision on its face does not prohibit a

nonjury trial before such a jury trial any more than it prohibits a preliminary hearing—

even a very lengthy one—conducted before a jury trial. The right to a jury trial can be

vindicated after an improper nonjury trial by reversing the judge’s verdict and ordering a

jury trial. Younger and its descendants tell us that the burden of having to endure a trial

is not—outside the double-jeopardy context—irreparable injury in the Younger sense.

See Younger, 401 U.S. at 46. If the constitutional right can be afforded the defendant

later—such as by conducting a jury trial—there is not sufficient ground to intervene.

Applicant has not suggested that the state court’s denial of his motion for a jury trial was

                                               15
an effort to dissuade him from seeking a jury trial, as opposed to a good-faith ruling on

the facts and the law.

       Supporting our view is the apparent standard practice of ordering a trial by jury

when the defendant has been unconstitutionally denied a jury trial and been subjected to a

nonjury trial. See United States v. Pina, 844 F.2d 1, 11 (1st Cir. 1988) (setting aside

contempt convictions and remanding for jury trial); United States v. Craner, 652 F.2d 23,

27 (9th Cir. 1981) (“It accords with the relevant state and federal practice that Craner

have the jury trial he seeks”); cf. United States v. Hamdan, 552 F.2d 276, 280 (9th Cir.

1977) (holding “appellants are entitled to a jury trial” after determining it was

constitutional error to deny jury trial). Implicit in this practice is the recognition that the

harm of denial of a jury at the first trial can be cured by providing a jury at a later trial.

       Applicant can be provided a jury trial if his claim ultimately prevails in state court.

We therefore hold that Younger denies him access to the federal courts at this stage of the

proceedings.

       IV.     CONCLUSION

       We DENY a COA and DISMISS the appeal.




                                               16
