Clarence NEVILLE, Petitioner-Appellant, v. C. Joseph CAVANAGH, State's Attorney, Sangamon County, Springfield, Illinois, and George A. Ralston, Warden, United States Penitentiary, Terre Haute, Indiana, Respondents-Appellees, 611 F.2d 673

VAN DUSEN, Senior Circuit Judge. 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), 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) 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 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) 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.” Id. (citations omitted).

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 ease 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: “[P]etitioner 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 defenses prematurely in federal court.” 410 U.S. at 491, 493, 93 S.Ct. at 1128, 1129.

In light of the fact that Neville does seek to derail a pending state criminal proceeding, and that he may be acquitted at trial, we believe the district court was correct in denying the petition for a writ of habeas corpus at this time. We note that this decision does not bar federal consideration of Neville’s claim. Rather, it merely delays such consideration until “a time when federal jurisdiction will not seriously disrupt state judicial processes.” United States ex rel. Parish v. Elrod, supra at 329. Accordingly, we will affirm the judgment of the district court. .

The Interstate Agreement on Detainers Act has been adopted by 44 states, the District of Columbia and the United States. It was enacted to coordinate procedures for handling prisoners in one jurisdiction who faced pending criminal charges in another jurisdiction. According to

Article I of the Interstate Agreement, the main purposes of the Agreement are to implement the right to a speedy trial and to minimize the interference with the treatment and rehabilitation of prisoners. In order to further these purposes, the Interstate Agreement creates several new statutory rights. .

Article IV(

e) provides: “If trial is not had on any indictment, information, or complaint contemplated hereby prior to the prisoner’s being returned to the original place of imprisonment pursuant to

Article V(

e) hereof, such indictment, information or complaint shall not be of any further force or effect, and the court shall enter an order dismissing the same with prejudice.” . Neville v. Friedman, 67 Ill.2d 488, 10 Ill.Dec. 575, 367 N.E.2d 1341 (1977). . 28 U.S.C. § 2241(

c) provides in relevant part: “(

c) The writ of habeas corpus shall not extend to a prisoner unless—

(3) He is in custody in violation of the Constitution or laws or treaties of the United States; . . . .” In determining if the “in custody” requirement has been met, the court examines the status of the petitioner at the time the habeas corpus application was filed. Carafas v. LaVallee, 391 U.S. 234, 238, 88 S.Ct. 1556, 20 L.Ed.2d 554 (1968). In determining if a violation of the laws of the United States has been alleged, the court here is guided by Echevarria v. Bell, 579 F.2d 1022 (7th Cir. 1978).

In Echevarria, a prisoner who had been transferred from federal to state custody and back again without standing trial on the state charges filed a petition for federal habeas corpus relief, alleging his rights under

Article IV(

e) of the Interstate Agreement on Detainers Act, Ill.Rev.Stat.1975, ch. 38, § 1003-8-9(a), had been violated. This court found that the petitioner had presented a claim that he was in custody in violation of a law of the United States because “[t]he construction of [an interstate] compact sanctioned by Congress presents a federal question.” Id. at 1024. . Neville urges upon the court an analogy between his situation and one involving a claim of double jeopardy.

If fully stated, his argument would proceed as follows: (1) he has a right under the Interstate Agreement not to stand trial in Illinois state court; (2) to vindicate that right, there must be a federal pre-trial forum available to test the merits of his claim; (3) if not provided with a pre-trial forum, he will be forced to undergo a trial in order to prove that he has a right not to stand trial. To support his position, Neville relies on Abney v.

United States, 431 U.S. 651, 97 S.Ct. 2034, 52 L.Ed.2d 651 (1977), in which the Supreme Court held that the pre-trial rejection of a defendant’s double jeopardy claim was collateral to and separate from the issue of guilt, and therefore was immediately appealable. The Court remarked that the Double Jeopardy Clause would be undermined significantly if appellate review of the claim were postponed until after conviction. Neville’s reliance on Abney is misplaced, however. As the Third Circuit recognized in Moore v.

DeYoung, 515 F.2d 437, 446 n. 11 (1975), there are major differences between claims arising under the Double Jeopardy Clause and those arising under the Interstate Agreement on Detainers Act. “One major substantive difference in the nature of the two claims ... is readily apparent. A double jeopardy claimant has once endured the rigors of a criminal trial. [The petitioner], by contrast, has not yet stood trial on any of the indictments arising out of the alleged criminal assault.

Thus, the constitutional and policy considerations, which may entitle a defendant claiming double jeopardy to have that claim considered in a pre-trial federal habeas petition before state court exhaustion of that issue on the merits do not apply with equal force to [the petitioner’s Interstate Agreement on Detainers Act] contention.” The Fifth Circuit reached a similar result in Tooten v. Shevin, 493 F.2d 173 (1974), cert. denied, 421 U.S. 966, 95 S.Ct. 1957, 44 L.Ed.2d 454 (1975).

There the appellant contended she was entitled to pre-trial federal habeas corpus relief in order to protect her right to be free from unlawful prosecution and the unwarranted rigors of a criminal trial. The court denied her petition, distinguishing between appellant, who “merely assert[ed] a federal defense to a state prosecution,” and one who asserted a double jeopardy claim. Id. at 176.