Appeal from the United States District Court for the Central District of Illinois, Springfield Division. No. 78-C-3127--J. Waldo Ackerman, Judge .
Before Sprecher and Cudahy, Circuit Judges, and Van Dusen, Senior Circuit Judge.*fn*
This is an appeal from a denial by the district court of a petition by Clarence E. Neville for a writ of habeas corpus. Neville contends that the indictments outstanding against him in the Sangamon County Circuit Court in the State of Illinois should be dismissed because his rights under the Interstate Agreement on Detainers Act, Ill.Rev.Stat.1975, Ch. 38, § 1003-8-9 (Interstate Agreement),*fn1 were violated. The district court declined to address the merits of this contention, holding that Neville's petition was premature. Neville also sought injunctive relief prohibiting the State of Illinois from taking custody of him pending the adjudication of his habeas petition. The district court denied this request. We affirm the decision of the district court.
Neville, a federal prisoner, entered the federal penitentiary at Terre Haute, Indiana, in 1974 to serve a 10-year sentence. In June 1976 the State's Attorney of Sangamon County, Illinois, filed a detainer against Neville under the Interstate Agreement, based on 28 indictments pending against Neville in the Sangamon County Circuit Court. Neville was transferred to Sangamon County Jail on June 6, 1976. His trial was scheduled for October 25, 1976. One week prior to trial, Neville's privately retained counsel requested a continuance due to counsel's illness. The court granted a continuance until January 1977, with a specific trial date to be selected at a later time. The court also entered an order directing that Neville be returned to federal custody. Neville was transferred back to the federal penitentiary at Terre Haute in October.
In January 1977 Neville filed a pre-trial motion to dismiss in Sangamon County Circuit Court, asserting that Article IV(e)*fn2 of the Interstate Agreement mandated dismissal of his pending indictments. The trial court denied his motion. Neville then filed a petition with the Illinois Supreme Court, seeking permanent prohibition of the trial and dismissal of the indictments with prejudice. In an opinion*fn3 filed September 20, 1977, the Illinois Supreme Court ruled against Neville on the merits of his claim and denied his petition for a writ of prohibition. Noting that Neville had sought the continuance which resulted in the lengthy trial delay, that the state had been prepared to go to trial, and that Neville had not objected to being returned to Terre Haute, the court held that in these circumstances the Interstate Agreement on Detainers Act does not require dismissal of the charge. Neville sought review in the United States Supreme Court, but certiorari was denied. He then filed a petition for a writ of habeas corpus and an application for a temporary restraining order in the United States District Court for the Southern District of Illinois. The court denied relief on both matters. This appeal followed.
While this appeal was pending, Neville was paroled from the federal penitentiary in Indiana. The State of Illinois had initiated extradition proceedings against Neville and had issued fugitive warrants against him. Neville was transferred to the custody of the sheriff of Vigo County, Indiana, and arraigned on the warrants. He refused to waive extradition. He was granted bail on the condition that he remain in the State of Indiana.
Although habeas corpus is generally a post-conviction remedy, the federal courts in certain instances have jurisdiction under 28 U.S.C. § 2241(c)(3) (1976)*fn4 to grant writs of habeas corpus prior to trial to individuals in state custody. Braden v. 30th Judicial Circuit Court of Kentucky, 410 U.S. 484, 93 S. Ct. 1123, 35 L. Ed. 2d 443 (1973). Despite the existence of jurisdiction, however, federal courts are reluctant to grant pre-trial habeas relief. In the interests of comity between federal and state courts, the doctrine of exhaustion of state remedies has developed. It applies to pre-trial, as well as post-trial, habeas corpus petitions. Braden v. 30th Judicial Circuit Court of Kentucky, supra at 489-92, 93 S. Ct. 1123. See United States ex rel. Parish v. Elrod, 589 F.2d 327, 329 (7th Cir. 1979); Moore v. DeYoung, 515 F.2d 437, 442 (3d Cir. 1975).
In United States ex rel. Parish v. Elrod, supra, this court stated that only in "special circumstances" will a habeas petitioner be able to show that he has exhausted his state remedies prior to trial. 589 F.2d at 329. The court further stated:
"(T)he possibility that resort in the future to the Illinois appellate courts may be futile, does not compel us to disrupt a pending state criminal prosecution at which the petitioner may yet be acquitted."
Neville argues that the fact that the Illinois Supreme Court has ruled against him on the merits of his claim constitutes "special circumstances." Thus, he contends that he has satisfied the exhaustion requirement and that the federal court should in this case "adjudicate the merits of an affirmative defense to a state criminal charge prior to a judgment of conviction by a state court." Braden v. 30th Judicial Circuit Court of Kentucky, 410 U.S. at 489, 93 S. Ct. at 1127.
It is true that here, as in Braden, the petitioner has presented his claim to the state courts. Moreover, he has received a ruling on the merits from the Illinois Supreme Court. That holding is, without doubt, the law of the case, and Neville cannot realistically anticipate a different result on this issue at trial or on direct appeal. Nonetheless, we do not believe that on this record the district court was wrong to decline to exercise federal habeas corpus jurisdiction. We believe that this case differs from Braden in a very significant respect: the petitioner there sought to compel a trial in state court, not to avoid one. The Braden court stressed the significance of this circumstance:
"Petitioner made no effort to abort a state proceeding or to disrupt the orderly functioning of state judicial processes. He comes to federal court, not in an effort to forestall a state prosecution, but to enforce the Commonwealth's obligation to provide him with a state court forum.
"We emphasize that nothing we have said would permit the derailment of a pending state proceeding by an attempt to litigate constitutional ...