[Related to N.D. Cal. No. C-92-1482-MHP] This Opinion Substituted by Court for Withdrawn Opinion of April 20, 1992.
Opinion by Judge Alarcon. Before: Alarcon, Brunetti, and Noonan, Circuit Judges.
On Friday, April 17, 1992, Robert Alton Harris, and two other condemned prisoners, filed two actions seeking to halt his execution scheduled for April 21, 1992. In this matter, Harris filed a civil rights action pursuant to Section 1983. He seeks a permanent injunction banning the use of lethal gas in the execution of a judgment by death. On the same date, Harris filed a petition for a writ of habeas corpus in the Supreme Court of California. In his habeas corpus action he asked the California Supreme Court to issue a stay of execution. Harris did not claim in his petition before the California Supreme Court that the use of lethal gas, in the execution of a judgment imposing the death penalty, violated the federal constitution. Since he was sentenced to death on March 6, 1979, Harris has filed five petitions for a writ of habeas corpus in the California Supreme Court. In none of them has he challenged the use of lethal gas to execute the trial court's judgment.
On March 13, 1992, counsel for Harris appeared before the Superior Court of the State of California for the County of San Diego. On that date, the court issued an order that Robert Alton Harris should suffer the death penalty on April 21, 1992. No motion was made before the state trial court to prevent the Warden of the State Prison of the State of California, at San Quentin Prison from executing the judgment of the court by lethal gas. As noted above, no review has been sought before the California Supreme Court of the March 13, 1992, order that the warden "carry into effect the judgment of the court by putting to death the said Robert Alton Harris in the manner and means prescribed by law on the twenty-first day of April, 1992." (Emphasis added.)
On Saturday evening, April 18, 1992, the district court issued a temporary restraining order enjoining James Gomez, the Director of the California Department of Corrections, and Daniel Vasquez, the Warden of the San Quentin Prison "from inflicting the punishment of death upon Plaintiffs or any class member by administration of lethal gas."
Petitioners, James Gomez and Daniel Vasquez (hereinafter the "State"), seek an emergency writ of mandamus to the United States District Court for the Northern District of California. Petitioners request this court to vacate a Temporary Restraining Order issued on April 18, 1992, in the case of Fierro v. Gomez, No. C-92-1482 (N.D. Cal. April 18, 1992). The State contends that the district court lacked the jurisdiction to enjoin the execution of the state court's judgment under the principles of federalism and comity first announced in Younger v. Harris, 401 U.S. 37 (1971). We agree and grant the petition for a writ of mandamus, and vacate the temporary restraining order forthwith.
Mandamus is an extraordinary remedy that may be used to challenge an otherwise unappealable order if the district court's exercise of jurisdiction "was clearly erroneous as a matter of law." See Bauman v. United States, 557 F.2d 650, 654-55 (9th Cir. 1977). The State argues that the district court was required to dismiss the action under Younger v. Harris. In Younger v. Harris, the court held that federal courts "cannot interfere with state prosecutions." Id. at 675. The basis for the Younger Abstention Doctrine is contained in the following passage:
This underlying reason for restraining courts of equity from interfering with criminal prosecutions is reinforced by an even more vital consideration, the notion of "comity," that is, a proper respect for state functions, a recognition of the fact that the entire country is made up of a Union of separate state governments, and a continuance of the belief that the National Government will fare best if the States and their institutions are left free to perform their separate functions in their separate ways. This, perhaps for lack of a better and clearer way to describe it, is referred to by many as "Our Federalism," and one familiar with the profound debates that ushered our Federal Constitution into existence is bound to respect those who remain loyal to the ideals and dreams of "Our Federalism." The concept does not mean blind deference to "States' Rights" any more than it means centralization of control over every important issue in our National Government and its courts. The Framers rejected both these courses. What the concept does represent is a system in which there is sensitivity to the legitimate interests of both State and National Governments, and in which the National Government, anxious though it may be to vindicate and protect federal rights and federal interests, always endeavors to do so in ways that will not unduly interfere with the legitimate activities of the States. It should never be forgotten that this slogan, "Our Federalism," born in the early struggling days of our Union of States, occupies a highly important place in our Nation's history and its future.
In Younger v. Harris, the plaintiff sought to restrain a pending state criminal prosecution. Id. at 674. In Huffman v. Pursue, Ltd., 420 U.S. 592 (1975), the plaintiff in a civil rights action argued, inter alia, that the Younger Abstention Doctrine was inapplicable where the state proceedings are no longer pending. Id. at 494. In Huffman v. Pursue, no appeal was taken from the state court's judgment.
The appellee in Huffman v. Pursue argued that "Younger. . . does not govern this case because at the time the District Court acted there was no longer a pending state court proceeding." Id. at 494. The Court rejected this argument stating:
We believe a necessary concomitant of Younger is that a party in appellee's position must exhaust his state appellate remedies before seeking relief in the District Court, unless he can bring himself within one of the exceptions specified in Younger.
As discussed above, Harris has failed to exhaust his state appellate remedies concerning the means of executing the trial court's judgment. He has had access to the Supreme Court of California on his direct appeal, and on five successive state habeas corpus petitions. Had he raised this issue in state court, the decision of the Supreme Court of California on his federal constitutional claim could have been reviewed by the United States Supreme Court.
By failing to include this claim in the state habeas corpus proceedings, filed on the same date this civil rights action was filed in federal court, Harris has deliberately bypassed state review of his claim that execution by the injection of lethal gas is cruel and unusual punishment. This tactic is clearly violative of this nation's policy that as a matter of comity and federalism, federal courts should not intervene in state ...