                     FOR PUBLICATION

   UNITED STATES COURT OF APPEALS
        FOR THE NINTH CIRCUIT


 SAMMY L. PAGE,                             No. 17-16364
      Petitioner-Appellant,
                                              D.C. No.
                v.                    1:16-cv-00522-AWI-JLT

 AUDREY KING,
      Respondent-Appellee.                    OPINION


        Appeal from the United States District Court
           for the Eastern District of California
        Anthony W. Ishii, District Judge, Presiding

           Argued and Submitted February 8, 2019
                 San Francisco, California

                      Filed August 2, 2019

  Before: Richard A. Paez and Marsha S. Berzon, Circuit
       Judges, and Gary Feinerman, * District Judge

                 Opinion by Judge Feinerman




    *
      The Honorable Gary Feinerman, United States District Judge for
the Northern District of Illinois, sitting by designation.
2                          PAGE V. KING

                          SUMMARY **


            Habeas Corpus / Younger Abstention

    The panel vacated the district court’s judgment
dismissing based on Younger abstention a habeas corpus
petition in which Sammy Page, who has been detained for
thirteen years awaiting trial for recommitment under the
California Sexually Violent Predator Act (SVPA), alleges
that the State of California is violating his due process rights
by continuing to detain him pretrial based on an outdated and
scientifically invalid probable cause finding.

    The panel rejected as irreconcilable with this court’s
precedents Page’s contention that his SVPA case has been
stalled for so long that it is no longer “ongoing” for purposes
of Younger v. Harris, 401 U.S. 37 (1971). The panel
explained that the state court proceeding is “plainly
ongoing” for Younger purposes where, as here, no final
judgment has been entered.

    The panel held that the delay in bringing Page’s SVPA
case to trial is not an extraordinary circumstance under
Younger, as the delay is primarily attributable to defense
counsel’s litigation efforts, not the state court’s
ineffectiveness.

    The panel held that Page’s claim fits squarely within the
“irreparable harm” exception to Younger abstention set forth
in Arevalo v. Hennessy, 882 F.3d 763 (9th Cir. 2018),

    **
       This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
                        PAGE V. KING                          3

because (1) regardless of the outcome at trial, a post-trial
adjudication will not fully vindicate his right to a current and
proper pretrial probable cause determination, and (2) his
claim, which could not be raised in defense of the criminal
prosecution, could not prejudice the conduct of the trial on
the merits.

    The panel wrote that the merits of Page’s due process
claim are reserved for the district court on remand, and that
the district court should consider anew Page’s request for
appointment of counsel.


                         COUNSEL

Andrea Renee St. Julian (argued), San Diego, California, for
Petitioner-Appellant.

Max Feinstat (argued), Deputy Attorney General; Tami M.
Krenzin, Supervising Deputy Attorney General; Michael P.
Farrell, Senior Assistant Attorney General; Xavier Becerra,
Attorney General; Office of the Attorney General,
Sacramento, California; for Respondent-Appellee.
4                      PAGE V. KING

                        OPINION

FEINERMAN, District Judge:

    Sammy Page, who has been detained for the last thirteen
years awaiting trial for recommitment under the California
Sexually Violent Predator Act (“SVPA”), Cal. Welf. & Inst.
Code § 6600 et seq., filed a petition for habeas corpus,
alleging that the state is violating his Fourteenth Amendment
due process rights by continuing to detain him pretrial based
on an outdated and scientifically invalid probable cause
finding. The district court dismissed the petition under
Younger v. Harris, 401 U.S. 37 (1971). We vacate and
remand for further proceedings.            (Page raised three
uncertified issues, which we decline to address. Ninth Cir.
R. 22-1(e). If relevant on remand, Page may raise them in
the district court.)

             Factual and Procedural History

    A. Page’s State SVPA Proceedings

    From 1971 to 1987, Page committed three brutal rapes
during home invasion robberies. See People v. Page, 2005
WL 1492388, at *3–5 (Cal. Ct. App. June 24, 2005). In
2004, he was adjudicated a Sexually Violent Predator
(“SVP”) under the SVPA and civilly committed for two
years. Id. at *1–3.

    In February 2006, the state filed a petition to recommit
Page as an SVP. The state supported its petition with two
psychiatric evaluations diagnosing Page with Paraphilia Not
Otherwise Specified (“NOS”) based on his affinity for
nonconsensual sex and concluding that he qualified as an
SVP. In May 2006, the state court found probable cause to
detain Page pretrial. Page has been detained awaiting trial
                       PAGE V. KING                        5

ever since. The state court minute orders and the July 21,
2015 declaration of David C. Cook, an SVPA prosecutor, set
forth the relevant timeline. (Page argues that we should
disregard the declaration because Cook cannot act as both
witness and attorney in the same case. See Cal. Rules of
Professional Conduct 3.7 (2018). This argument fails
because Cook does not represent the state in this federal
case.)

    On March 16, 2006, a public defender was appointed to
represent Page. The case was continued until December 15,
2006 to permit the parties to prepare for trial. On December
15, the state filed a motion based on a recent amendment to
the SVPA. The court granted the motion and continued the
case to March 2, 2007.

    The case was repeatedly delayed over the next two years.
Defense counsel requested one continuance, but no
explanation for the other continuances appears in the record.
The case then was continued throughout 2009 to permit the
parties to litigate defense motions, including Page’s motion
for substitute counsel. On March 12, 2010, Cook “informed
the court and Page’s counsel that [the state] was ready for
the case to be set for trial.” The case nonetheless was
continued to May 2012 so that two additional defense
motions could be briefed and decided.

    One of the defense motions sought a new probable cause
hearing, new mental health evaluations, and new mental
health evaluators. In a supporting declaration, Dr. Allen
Francis opined that “Paraphilia NOS, nonconsent” is an
“incompetent” and “psychiatrically unjustified” diagnosis
upon which the psychiatric community had recently cast
doubt, most notably by rejecting proposals to include it in
the American Psychiatric Association’s Diagnostic and
Statistical Manual of Mental Disorders, Fifth Edition, or
6                      PAGE V. KING

“DSM-V.”      The court granted the motion for new
evaluations and a new probable cause hearing, and continued
the case to November 2012 to allow the new evaluations to
take place.

    Four mental health professionals were retained to
perform the new evaluations. The first two evaluators
disagreed as to whether Page met SVP criteria, necessitating
two additional evaluators, who also disagreed. In the end,
two evaluators, including one that had recommended
recommitment in 2006, concluded that Page no longer met
SVP criteria. They based their determinations in part on
Page’s lengthy pretrial detention, reasoning that he had aged
and had not committed any further sexual or violent acts.
The two other evaluators came to the opposite conclusion,
finding that Page continued to meet SVP criteria. One of
those evaluators diagnosed Page with Paraphilia NOS.

    The case was continued from November 2012 to May
2013 so that defense motions related to the new evaluations
could be filed, briefed, and decided. On July 26, 2013, the
state requested a continuance to file a motion based on Reilly
v. Superior Court, 304 P.3d 1071 (Cal. 2013), which called
into question Page’s entitlement to a new probable cause
hearing. Defense counsel then sought several continuances
to respond to the state’s Reilly motion. The court granted the
Reilly motion on April 18, 2014 and rescinded its prior order
calling for a new probable cause determination.

    The case was repeatedly continued until June 2, 2017 to
allow defense counsel to litigate additional motions. The
minute orders from July 28, 2017 through November 3, 2017
reference a “motion” but provide no further detail. The case
was continued on January 5, 2018 “[b]y agreement of
counsel” and again on May 4, 2018 for unknown reasons.
                       PAGE V. KING                         7

    Cook averred in his declaration that he “remain[s] ready
to set this matter for trial” and that, to his knowledge,
“neither Page nor his trial counsel has ever requested that
Page’s case be set for trial.” Cook further averred that he
requested only one continuance after calling ready for trial
on March 12, 2010.

   B. Page’s Federal Habeas Proceedings

    Page filed the present federal habeas petition in the
Northern District of California on July 16, 2012. He alleged
that his due process rights were violated by the state court
when it based its pretrial detention probable cause finding on
pseudoscience; by the prosecution when it introduced
pseudoscientific evidence at the probable cause hearing; and
by the state when it continued to detain him based on the
2006 probable cause finding even though the 2012
evaluations suggested that the 2006 evaluations had become
outdated. The district court abstained under Younger v.
Harris, 401 U.S. 37 (1971). See Page v. King, 2015 WL
5569434 (N.D. Cal. Sept. 21, 2015). We vacated and
remanded, instructing the district court to consider whether
it had jurisdiction to decide the petition.

    On remand, the district court transferred the case to the
Eastern District of California, which again abstained under
Younger, dismissed Page’s petition, and declined to issue a
certificate of appealability. See Page v. California, 2008
WL 3889563 (E.D. Cal. Aug. 19, 2008), report and
recommendation adopted, 2009 WL 260704 (E.D. Cal. Feb.
4, 2009). Page appealed. We granted a certificate of
appealability on the issue whether the district court properly
abstained under Younger.
8                       PAGE V. KING

                         Discussion

    Absent extraordinary circumstances, “interests of comity
and federalism instruct [federal courts] to abstain from
exercising our jurisdiction in certain circumstances when . . .
asked to enjoin ongoing state enforcement proceedings.”
Nationwide Biweekly Admin., Inc. v. Owen, 873 F.3d 716,
727 (9th Cir. 2017). “Younger abstention is appropriate
when: (1) there is an ongoing state judicial proceeding;
(2) the proceeding implicates important state interests;
(3) there is an adequate opportunity in the state proceedings
to raise constitutional challenges; and (4) the requested relief
seeks to enjoin or has the practical effect of enjoining the
ongoing state judicial proceeding.” Arevalo v. Hennessy,
882 F.3d 763, 765 (9th Cir. 2018) (alterations and internal
quotation marks omitted). But “even if Younger abstention
is appropriate, federal courts do not invoke it if there is a
‘showing of bad faith, harassment, or some other
extraordinary circumstance that would make abstention
inappropriate.’” Id. at 765–66 (quoting Middlesex Cnty.
Ethics Comm. v. Garden State Bar Ass’n, 457 U.S. 423, 435
(1982)).

    Page does not dispute that Younger abstention can apply
to ongoing SVPA proceedings, but he offers two grounds for
why the district court nevertheless erred in abstaining under
Younger given the facts and circumstances of this case. We
consider those grounds in turn.

I. Whether Page’s State SVPA Proceedings Are
   Ongoing

    Page first contends that his SVPA case has been stalled
for so long that it is no longer “ongoing” for purposes of
Younger. This contention cannot be reconciled with our
precedents, which establish that “[t]here is no principled
                       PAGE V. KING                         9

distinction between finality of judgments for purposes of
appellate review and finality of state-initiated proceedings
for purposes of Younger abstention.” San Jose Silicon
Valley Chamber of Commerce Political Action Committee v.
City of San Jose, 546 F.3d 1087, 1093 (9th Cir. 2008).
Where, as here, “no final judgment has been entered” in state
court, the state court proceeding is “plainly ongoing” for
purposes of Younger. Id. While recognizing the possibility
that a state court could intentionally delay proceedings to
stave off federal habeas review or for other improper
purposes, we have determined that Younger’s exceptions for
bad faith, harassment, or other extraordinary circumstances
provide sufficient protection from such state court abuse. Id.
We therefore turn to the question whether Page can establish
one of those exceptions.

II. Whether Extraordinary Circumstances                Make
    Younger Abstention Inappropriate

   Federal courts will not abstain under Younger in
“extraordinary circumstances where irreparable injury can
be shown.” Brown v. Ahern, 676 F.3d 899, 903 (9th Cir.
2012). Page argues that this exception applies here, either
because of the state court’s extraordinary delay in bringing
him to trial or because he will be irreparably harmed if he is
unable to seek federal review prior to trial.

    The delay in bringing Page’s SVPA case to trial is not an
extraordinary circumstance under Younger. True, we have
in rare cases declined to abstain where the state court delay
was extreme and there was “no end in sight” to the state court
proceedings. See Phillips v. Vasquez, 56 F.3d 1030, 1035,
1038 (9th Cir. 1995) (“We have consistently recognized that
unusual delay in the state courts may justify a decision to
protect a prisoner’s right to a fair and prompt resolution of
his constitutional claims despite the jurisprudential concerns
10                      PAGE V. KING

that have led us to decline to review a claim or to require full
exhaustion in other cases in which a proceeding related to
the federal petition is pending in state court.”). But Younger
abstention is appropriate even in cases of extreme delay
where there is “no indication that the state court has been
ineffective,” Edelbacher v. Calderon, 160 F.3d 582, 586 (9th
Cir. 1998), and where the delay is instead “attributable to the
petitioner’s quite legitimate efforts in state court to escape
guilt” through litigation, id. at 585.

     As the Cook declaration and the state court record show,
the delay in bringing Page’s SVPA case to trial is primarily
attributable to defense counsel’s litigation efforts, not the
state court’s ineffectiveness. Additionally, an end to the
state court proceedings is in sight. The state informed the
court that it was ready for trial nine years ago and has
remained ready at least as of 2015. Thus, it appears that Page
could go to trial if he only demanded it.

    Page’s reliance on speedy trial cases like Doggett v.
United States, 505 U.S. 647, 652 (1992), which describes an
eight-and-a-half-year delay as “extraordinary,” is misplaced.
Page does not explain how or why speedy trial principles
apply to the very different question of what constitutes
extraordinary circumstances under Younger. Moreover, we
have repeatedly rejected the argument that “violation of the
Speedy Trial Clause [is] sui generis such that it suffice[s] in
and of itself as an independent ‘extraordinary circumstance’
necessitating pre-trial habeas consideration.”         Brown,
676 F.3d at 901 (quoting Carden v Montana, 626 F.2d 82,
84 (9th Cir. 1980)). Thus, even if Page could establish that
the delay in bringing him to trial would support a speedy trial
defense if the state court proceedings were criminal in
nature, it does not follow that the delay is an extraordinary
circumstance in the meaning of Younger.
                        PAGE V. KING                         11

     Page argues in the alternative that abstention is
inappropriate for the reasons given in Arevalo v. Hennessy,
supra, which we decided after the district court here issued
its ruling. In that case, Erick Arevalo filed a federal habeas
petition alleging that he had been jailed for six months
without a constitutionally adequate bail hearing. Arevalo,
882 F.3d at 764–65. We held that Younger does not
“require[ ] a district court to abstain from hearing a petition
for a writ of habeas corpus challenging the conditions of
pretrial detention in state court” where (1) the procedure
challenged in the petition is distinct from the underlying
criminal prosecution and the challenge would not interfere
with the prosecution, or (2) full vindication of the
petitioner’s pretrial rights requires intervention before trial.
Id. at 764, 766–67. We determined that Arevalo’s claims
satisfied both grounds for overcoming Younger abstention.

    As to the first, we relied on Gerstein v. Pugh, 420 U.S.
103 (1975), which held that a criminal defendant’s right to
“a judicial determination of probable cause for pretrial
restraint of liberty” can be enforced in federal court before
state court proceedings conclude. Id. at 105, 108 n.9.
Gerstein reasoned that because claims regarding the right to
a probable cause determination are not “directed at the state
prosecutions as such, but only at the legality of pretrial
detention without a judicial hearing, an issue that could not
be raised in defense of the criminal prosecution,” federal
court review “could not prejudice the conduct of the trial on
the merits.” Id. at 108 n.9. Applying Gerstein, we
concluded that Arevalo’s bail-related federal habeas claims
were “distinct from the underlying criminal prosecution and
would not interfere with it.” Arevalo, 882 F.3d at 766.

    As to the second ground for overcoming Younger
abstention in Arevalo, we relied on Mannes v. Gillespie,
12                      PAGE V. KING

967 F.2d 1310 (9th Cir. 1992), which declined to abstain
from hearing a habeas petitioner’s double jeopardy claim on
the ground that “[t]he Fifth Amendment’s protection against
double jeopardy … is not against being twice punished, but
against being twice put in jeopardy,” that is, against facing
two trials. 967 F.2d at 1312 (internal quotation marks
omitted). Given the nature of the double jeopardy right, we
reasoned in Mannes that a post-trial ruling that the state
violated the Double Jeopardy Clause would come too late,
as the petitioner already would have been irreparably
deprived of his rights. Id. Likewise, the bail hearing that
Arevalo sought was intended to protect him against
unconstitutional pretrial detention, a right that could not be
vindicated post-trial. Arevalo, 882 F.3d at 767. We
therefore held that Arevalo had established extraordinary
circumstances that threatened irreparable harm and justified
proceeding with his habeas petition. Id.

     Here, Page alleges that the state is violating his due
process right not to be detained pretrial based on a stale and
scientifically invalid probable cause determination and that
his complete loss of liberty for the time of pretrial detention
is “irretrievable” regardless of the outcome at trial. If Page
is right, then regardless of the outcome at trial, a post-trial
adjudication of his claim will not fully vindicate his right to
a current and proper pretrial probable cause determination.
His claim therefore “fits squarely within the irreparable harm
exception” to Younger that we applied in Arevalo. Id. at 766.

    Additionally, as in Arevalo, Page’s claim is closely
analogous to the claim in Gerstein: The defendant in
Gerstein challenged the state’s refusal to hold a probable
cause hearing, while Page challenges the state’s alleged
failure to hold a constitutionally adequate probable cause
hearing. Page’s claim likewise is not “directed at the state
                         PAGE V. KING                         13

prosecution[ ] as such, but only at the legality of pretrial
detention without a [constitutionally-adequate] judicial
hearing, an issue that could not be raised in defense of the
criminal prosecution,” and thus our review “could not
prejudice the conduct of the trial on the merits.” 420 U.S.
at 108 n.9. Page’s claim therefore satisfies both of the
grounds set forth in Arevalo for overcoming Younger
abstention.

    The state argues that Arevalo is inapposite because Page
failed to show that he was unable to raise his due process
claim in the state court proceedings. We considered and
rejected the same argument in Arevalo, and are bound to
follow suit here. 882 F.3d at 767 n.3 (noting that the
opportunity to present a claim in state court “involve[s] the
third Younger factor—adequacy of the state proceedings to
address the issue,” and does not categorically bar the
“irreparable harm” exception).

     Nor is our treatment of Page’s claim inconsistent with
our speedy trial jurisprudence. True, we have declined to
apply the irreparable harm exception to Younger abstention
where a federal habeas petitioner seeks to vindicate a speedy
trial affirmative defense. See Carden, 626 F.2d at 84; see
also Brown, 676 F.3d at 901 (reaffirming Carden). But
unlike the protection against double jeopardy or the pretrial
rights at issue in Arevalo and Gerstein, the speedy trial
defense primarily protects the integrity of the trial itself. See
United States v. MacDonald, 435 U.S. 850, 858 (1978)
(holding that the “most serious” interest that “the speedy trial
right was designed to protect” is “to limit the possibility that
the defense will be impaired”); Carden, 626 F.2d at 84
(citing MacDonald to support its holding that Younger
abstention was appropriate). Like other rights designed to
ensure a fair trial, the speedy trial right asserted as a defense
14                      PAGE V. KING

can be vindicated through reversal of the improperly-
obtained conviction. See Carden, 626 F.2d at 84; Brown,
676 F.3d at 901. By contrast, the right asserted by Page
implicates the integrity of pretrial probable cause
procedures. Arevalo shows that such a right is not a trial
right and therefore cannot be vindicated post-trial.

    Finally, we recognize that in Drury v. Cox, 457 F.2d 764
(9th Cir. 1972) (per curiam), we abstained under Younger
from hearing a challenge to a pretrial probable cause
determination. Our two-paragraph, per curiam opinion in
Drury did not consider or decide whether the petitioner’s
claim fell within the irreparable harm exception to Younger,
so it does not govern that issue. See R.A.V. v. City of St.
Paul, 505 U.S. 377, 386 n.5 (1992) (“It is contrary to all
traditions of our jurisprudence to consider the law on this
point conclusively resolved by broad language in cases …
where the issue was not presented or even envisioned.”).
Additionally, we issued Drury prior to the Supreme Court’s
decision in Gerstein, which, as noted, expressly held that
Younger abstention was not appropriate where the petitioner
claims that the state has not provided appropriate pretrial
probable cause procedures. To the extent that Drury stands
for the opposite proposition, it has been overruled. See
Miranda v. Selig, 860 F.3d 1237, 1243 (9th Cir. 2017)
(“[W]e are bound by decisions of prior panels[ ] unless [a]
… Supreme Court decision … undermines those
decisions.”); Miller v. Gammie, 335 F.3d 889, 900 (9th Cir.
2003) (“[I]ssues decided by the [Supreme] [C]ourt need not
be identical in order to be controlling. Rather, the [Court]
must have undercut the theory or reasoning underlying the
prior circuit precedent in such a way that the cases are clearly
irreconcilable.”).
                         PAGE V. KING                         15

    We therefore hold that the district court erred in
abstaining under Younger from hearing Page’s claim that the
state is violating his pretrial due process rights. In so
holding, we do not speak to the merits of Page’s due process
claim. Indeed, the Supreme Court’s recent opinion in
Manuel v. City of Joliet, 137 S. Ct. 911 (2017)—which held
that “[i]f the complaint is that a form of legal process resulted
in pretrial detention unsupported by probable cause, then the
right allegedly infringed lies in the Fourth Amendment,” not
the Due Process Clause, id. at 919—may doom Page’s
petition unless he is permitted to amend to allege a Fourth
Amendment violation. Those merits questions are reserved
for the district court on remand.

    Before concluding, we note that Page requests that, in the
event of a remand, we direct the district court to appoint
counsel pursuant to 18 U.S.C. § 3006A(a)(2)(B). The
district court denied his requests for appointed counsel
because it found that the interests of justice did not require
appointment of counsel at the time. On remand, given the
complexity of the issues involved in his petition, the district
court should consider anew Page’s request for appointment
of counsel. See 18 U.S.C. § 3006A(A)(2)(B).

    VACATED and REMANDED.
