ON APPEAL FROM ORDER IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY.
Seitz, Chief Judge, Aldisert and Garth, Circuit Judges. Seitz, Chief Judge, concurring.
The petitioner Moore has been exposed to state court trial in New Jersey since 1967, as a result of his having been charged with the commission of a crime in January of that year. The sequence of events recited below ultimately presents this question for resolution: Should a federal court grant a writ of habeas corpus and enjoin an ongoing state criminal proceeding before the petitioner has stood trial and before the state courts have ruled on the merits of his claim that a speedy trial has been denied? The district court answered the questions affirmatively; issued the writ and enjoined further state proceedings by its order of June 21, 1974. The respondent Passaic County Prosecutor appeals. In resolving the questions we apply two important principles controlling the sensitive area of state-federal relations: (1) the normal requirement that state appellate courts be given the initial opportunity to consider the federal constitutional claim; and (2) the teaching of Younger v. Harris, 401 U.S. 37, 27 L. Ed. 2d 669, 91 S. Ct. 746 (1971).
Despite our distress with the manner in which a state law enforcement office has conducted the proceedings leading to the present prosecution, we nevertheless are obliged to reverse the district court and direct that the writ be denied and the injunction against state proceedings vacated.
On February 6, 1967, a complaint was filed in the Paterson, New Jersey, Municipal Court, charging Moore with the rape of a female infant on January 11, 1967. Following an investigation, the police on January 30, 1967 sent a teletype request to authorities in Richmond, Virginia, where Moore had previously lived and worked, notifying them that Moore was wanted for rape.
On April 8, 1967, Moore was arrested in Richmond on an unrelated charge. On June 8, 1967, Indictment Number 641-66 was returned by the Passaic County Grand Jury, charging Moore with carnal abuse in violation of N.J.S.A. 2A:138-1. This indictment was followed by a warrant for Moore's arrest which ultimately resulted in the lodging of a detainer on August 3, 1967, against Moore's release from confinement in Virginia.*fn1
Moore claims that he first learned of the indictment and resulting detainer when he appeared before a parole board in December 1968. On December 7, 1968, Moore sent his first letter to the Passaic County Prosecutor, asking that he be given a speedy trial or that the indictment be dismissed. This letter was followed by a document entitled "Petition for Speedy Trial" which Moore apparently sent to the Passaic County Court. This "Petition" prompted the Passaic County Assignment Judge to send a letter, dated January 30, 1969, to the Passaic County Prosecutor advising him that failure to bring Moore promptly to trial might result in dismissal of the indictment.
After receipt of the court's letter, the prosecutor's office undertook on February 11, 1969, to extradite Moore from Virginia. On March 25, 1969, the New Jersey Governor's Office forwarded to the Virginia Governor's Office a requisition and an executed Governor's Agreement for Moore's extradition to New Jersey. Neither this procedure, nor a simpler one available under Virginia law and recommended to the New Jersey authorities by the Assistant Attorney General of Virginia, was ever implemented. The prosecutor explains this failure to follow through on Moore's extradition as follows:
". . . This procedure, however, was not implemented, apparently because the assistant prosecutor handling the case left the Prosecutor's Office and the continuity of the matter was disrupted."
(Appellant's Brief at 6).
On April 16, 1969, Moore wrote another letter to the Passaic County Prosecutor in which he demanded that the charges against him be dropped for failure to grant a speedy trial. Subsequently, Moore prepared a handwritten "Motion for Dismissal", dated August 6, 1969, demanding either that he be brought to New Jersey for trial or that the detainer pending against him be withdrawn.
On May 7, 1970, the Virginia State prison authorities notified the Passaic County Sheriff that Moore would complete his sentence on June 30, 1970. Ultimately, Moore was returned to Passaic County where, on July 16, 1970, he was arraigned on Indictment 641-66 (charging carnal abuse) and pleaded not guilty.
Prior to trial, Moore's counsel filed a motion pursuant to New Jersey Rule 3:25-2*fn2 to dismiss the indictment on the grounds that Moore had been denied the right to a speedy trial and that no date certain (for trial) had been set. A hearing was held on September 25, 1970 which resulted in the granting of Moore's motion and the dismissal of the indictment. The state took no appeal.
Thereafter on July 20, 1971, (ten months after dismissal of the indictment charging Moore with carnal abuse), the Passaic County Grand Jury returned three new indictments charging Moore with atrocious assault and battery (Indictment No. 1004-71), threat to kill (Indictment No. 1005-71), and impairing the morals of a child (Indictment No. 1006-71). Each of these new indictments was based on the incident of January 11, 1967, which had originally given rise to the (by then dismissed) carnal abuse indictment.
After arraignment on August 10, 1971 Moore moved to dismiss the three new indictments claiming double jeopardy and collateral estoppel. On October 29, 1971 Moore's motion was granted and all three indictments were dismissed. On appeal, the Appellate Division affirmed the dismissal of Indictment No. 1006-71 (impairing the morals of a minor) on the ground that the proofs required to establish the charge of "impairing" would coincide with those necessary to prove carnal abuse.
As to the remaining two indictments, however, the Appellate Division reversed the judgment of the trial court. It reasoned that:
With respect to delay, the court concluded that in the absence of evidence of "actual prejudice" (caused by the delay in the return of the indictments) the indictments should not be dismissed. After unsuccessfully seeking leave to appeal this ruling, Moore moved for and obtained an evidentiary hearing to demonstrate "prejudice." At the conclusion of the hearing on March 22, 1973, the court ruled that ". . . no actual prejudice . . . [was] caused by the delay in bringing the matter to trial . . .", and denied Moore's motion to dismiss the two indictments.*fn3
Moore sought leave to appeal this order, first to the Appellate Division, and then to the New Jersey Supreme Court. Both applications for leave to appeal were denied; by the Appellate Division on May 10, 1973, and by the New Jersey Supreme Court on June 13, 1973. It was then (on June 19, 1973) that Moore filed his petition for a Writ of Habeas Corpus in the district court asserting denial of the right to a speedy trial guaranteed by the Sixth and Fourteenth Amendments. He sought discharge from custody and a permanent injunction against all state proceedings with respect to Indictment Nos. 1004-71 (atrocious assault and battery), and 1005-71 (threat to kill). On June 21, 1974, the district court granted Moore's petition for a Writ of Habeas Corpus and ordered that the state criminal proceedings be permanently stayed. This appeal followed.
For state prisoners, federal habeas corpus is substantially a post-conviction remedy, Peyton v. Rowe, 391 U.S. 54, 60, 20 L. Ed. 2d 426, 88 S. Ct. 1549 (1967), see 28 U.S.C. § 2254.*fn4 Nevertheless, jurisdiction to issue the writ exists in the federal courts before a judgment is rendered in a state criminal proceeding. See 28 U.S.C. § 2241.*fn5
In discussing exhaustion in the habeas corpus context, few cases discern between pre-trial and post-trial situations. With respect to state prisoners, it is only in the post-trial setting that exhaustion has been mandated by statute, 28 U.S.C. § 2254(b), 28 U.S.C. § 2241(c)(3), which empowers district courts to issue the writ before a judgment is rendered in a criminal proceeding, makes no reference to exhaustion. In this area, an exhaustion requirement has developed through decisional law, applying principles of federalism. The distinction between § 2241, pre-trial exhaustion, and § 2254, post-trial exhaustion, is recognized and discussed in Justice Rehnquist's dissent in Braden v. 30th Judicial Circuit Court of Kentucky, 410 U.S. 484, 503, 35 L. Ed. 2d 443, 93 S. Ct. 1123. For our ...