Jonathan Daveilo Duke v. JOSIE GASTELO, Warden

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JONATHAN DAVEILO DUKE,
Petitioner-Appellant,
v.
JOSIE GASTELO, Warden,
Respondent-Appellee.
No. 20-55787
D.C. No.
2:19-cv-04712-
AB-ADS
OPINION
Appeal from the United States District Court
for the Central District of California
Andre Birotte, Jr., District Judge, Presiding
Argued and Submitted October 19, 2022
Pasadena, California
Filed April 5, 2023
Before: Andrew J. Kleinfeld, Morgan Christen, and Patrick
J. Bumatay, Circuit Judges.
Opinion by Judge Christen;
Dissent by Judge Bumatay

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SUMMARY*
Habeas Corpus
The panel reversed the district court’s dismissal of
California state prisoner Jonathan Duke’s federal habeas
corpus petition under 28 U.S.C. § 2254, reversed the district
court’s denial of Duke’s motion to stay his federal
proceedings, and remanded, in a case in which Duke is
engaged in a resentencing proceeding under California Penal
Code § 1172.6, which allows persons convicted of certain
types of murder to petition for resentencing.
Duke filed the § 1172.6 petition in Superior Court one
day after California enacted that statute. While his
resentencing proceeding was ongoing, and 11 days before
the expiration of the deadline for him to file for relief
pursuant to the Antiterrorism and Effective Death Penalty
Act (AEDPA), Duke filed the federal habeas petition.
The district court denied Duke’s unopposed motion to
stay his habeas proceeding pending resolution of the §
1172.6 proceeding. Recognizing that Duke’s petition
presented only claims that had been fully exhausted in state
court, the district court dismissed the petition without
prejudice on the ground that Kelly v. Small, 315 F.3d 1063
(9th Cir. 2003), allows a stay of federal habeas proceedings
only if a petition presents a mix of exhausted and
unexhausted claims. The district court then sua sponte
* This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.

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D UKE V. G ASTELO 3
dismissed the petition without prejudice based on the
Younger v. Harris, 401 U.S. 37 (1971), abstention doctrine.
The panel explained that Younger is not implicated
here. Although there is an ongoing state proceeding—the
resentencing under § 1172.6 based on a change in state
law—the federal petition in this case does not seek an
injunction to prevent state officers from moving forward
with the § 1172.6 proceeding. That proceeding is in
substance a new case based on a new statute, and Duke seeks
no relief that would interfere with it. By filing and moving
to stay his federal petition until the state resentencing
proceeding concludes, Duke sought to satisfy the statute of
limitations and preserve his right to file one § 2254 petition
arguing that the state courts’ resolution of his federal
constitutional claims was unreasonable. For purposes of this
appeal, the salient point is that the State agrees there is no
possibility the ongoing § 1172.6 proceeding will address
Duke’s constitutional claims; indeed, the state courts have
already considered and rejected them.
The panel held that the denial of Duke’s motion for a stay
was also error because it was based on the misunderstanding
that the district court lacked the authority to stay Duke’s
habeas petition. The district court was correct that a stay
under Kelly and Rhines v. Weber, 544 U.S. 269 (2005),
would not have been warranted in Duke’s case because his
habeas petition did not include any unexhausted claims. But
as the State concedes, the fact that Duke’s petition included
only exhausted claims also meant there was no prospect that
a stayed federal petition would interfere with the § 1172.6
proceeding. Moreover, the circumstances weighed heavily
in favor of doing so: there was uncertainty whether the §
1172.6 petition would toll Duke’s federal filing deadline
because there is no controlling authority on that point and

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the parties had not briefed the issue; only 11 days remained
until Duke’s AEDPA filing period ended; the State did not
oppose Duke’s request for a stay; and there was no
possibility a stayed federal petition would interfere with the
state resentencing proceeding.
The panel concluded that the dismissal of the habeas
petition was error because the test for Younger was not
satisfied, and that the denial of a stay constituted an abuse of
discretion.
Judge Bumatay dissented. He wrote that the majority
ignores Duke’s multiple constitutional challenges in state
courts, focusing myopically instead on the pending § 1172.6
proceedings. He wrote that Younger must apply whenever a
plaintiff has an opportunity to raise his claims at any stage in
the state-court proceedings, and Duke has had opportunity
after opportunity to litigate his federal constitutional claims
in California courts.
COUNSEL
Fay Arfa (argued), Fay Arfa A Law Corporation, Los
Angeles, for Petitioner-Appellant.
Idan Ivri (argued), Deputy Attorney General; Stephanie C.
Brenan, Supervising Deputy Attorney General; Susan
Sullivan Pithey, Senior Assistant Attorney General; Lance
E. Winters, Chief Assistant Attorney General; Rob Bonta,
Attorney General of California; Office of the California
Attorney General; Los Angeles, California; for Respondent-
Appellee.

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D UKE V. G ASTELO 5
OPINION
CHRISTEN, Circuit Judge:
In this appeal, we consider whether the Younger
abstention doctrine requires dismissal of a state prisoner’s
federal habeas petition when the prisoner’s direct appeal and
state habeas proceedings have concluded, but the prisoner is
engaged in proceedings pursuant to California Penal Code §
1172.6 (formerly § 1170.95), a statute that allows persons
convicted of certain types of murder to petition for
resentencing. See Younger v. Harris, 401 U.S. 37 (1971).
California state prisoner Jonathan Duke sought
resentencing under § 1172.6 the day after California enacted
that statute. While his resentencing proceeding was
ongoing, and shortly before expiration of the deadline for
Duke to file for relief pursuant to the Antiterrorism and
Effective Death Penalty Act (AEDPA),1 Duke filed a federal
habeas petition. Among other things, his petition alleged
that several forms of prosecutorial misconduct had occurred
in his trial. A magistrate judge denied Duke’s unopposed
motion to stay his federal proceedings, and sua sponte
recommended that the district court dismiss Duke’s habeas
petition without prejudice pursuant to Younger. The district
court accepted the magistrate judge’s recommendation that
Younger abstention was warranted and required dismissal.
We respectfully disagree. Duke did not seek to enjoin or
interfere with the § 1172.6 state-court proceeding, and
because he cannot litigate his federal constitutional claims in
that state-court action, the test for Younger abstention was
1 See 28 U.S.C. § 2244(d)(1)(A).

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not satisfied. We therefore conclude that Younger abstention
was inappropriate and reverse the district court’s order
dismissing Duke’s federal habeas petition.
I.
Duke was convicted of committing first-degree murder
for the benefit of a criminal street gang in 2013. He was
sentenced in 2015. Duke appealed and concurrently filed a
state habeas petition. In 2017, the California Court of
Appeal denied Duke’s habeas petition but partially reversed
his conviction based on an erroneous jury instruction. The
appellate court remanded Duke’s case and directed that the
prosecution either retry Duke for first-degree murder or
accept a modification of the judgment to reflect a conviction
for second-degree murder. Duke sought review from the
California Supreme Court, which declined to review both his
direct appeal and his state habeas petition.
On remand to the state trial court, the prosecution elected
to proceed with a modified second-degree murder judgment
and Duke was resentenced to an indeterminate term of
fifteen years to life in prison. Duke again appealed to the
California Court of Appeal, which affirmed the modified
judgment. Duke did not seek review. Duke’s conviction
became final on June 10, 2018, when the time for him to seek
review from the California Supreme Court expired. See
Gonzalez v. Thaler, 565 U.S. 134, 150 (2012); Fed. R. Civ.
P. 6(a); Cal. R. Ct. 8.366(b)(1), 8.500(e)(1). This sequence
of events left June 10, 2019 as Duke’s deadline to file a
federal habeas petition. See 28 U.S.C. § 2244(d)(1)(A).
On January 1, 2019, approximately seven months after
the clock began running on the one-year period for Duke to
file a petition pursuant to 28 U.S.C. § 2254, a new California
resentencing law became effective. California Penal Code §

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D UKE V. G ASTELO 7
1172.6 allows people convicted of felony murder or murder
under the natural and probable consequences doctrine to
petition for resentencing if they could not currently be
convicted of those offenses due to a change in state law that
provides “[m]alice shall not be imputed to a person based
solely on his or her participation in a crime.” Cal. Penal
Code § 188(a)(3). If a person is prima facie eligible for
§ 1172.6 relief, the sentencing court must hold a hearing to
determine whether the conviction should be vacated. Id.
§ 1172.6(d)(1). At the hearing, the prosecution may rely on
previously admitted evidence and has the burden to prove
beyond a reasonable doubt that the petitioner is guilty of
murder under current California law. Id. § 1172.6(b)–(d).
The sentencing court must vacate the murder conviction and
enter a new sentence if it determines that the petitioner is
entitled to § 1172.6 relief. Id. § 1172.6(d). The new
sentence cannot be greater than the initial sentence, and the
petitioner must be given credit for time served. Id.
§ 1172.6(d)(1), (h).
Duke filed a § 1172.6 petition in Los Angeles Superior
Court on January 2, 2019, one day after California’s
resentencing law became effective. The superior court did
not rule on Duke’s petition for several months.
On May 30, 2019, with only 11 days remaining until his
original AEDPA filing deadline, Duke filed a federal habeas
petition alleging that several forms of prosecutorial
misconduct occurred at his trial, among other grounds for
relief.2 The state superior court denied Duke’s resentencing
2 The district court docket reflects that Duke filed his federal habeas
petition on May 30, 2019, but the magistrate judge’s Report and
Recommendation states the filing date was June 18, 2019. This
confusion likely occurred because the petition was attached as an exhibit

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petition shortly thereafter, and Duke appealed to the
California Court of Appeal.
Meanwhile, having met the AEDPA filing deadline in
federal court, Duke filed a motion to stay his habeas
proceedings pending resolution of his appeal in the § 1172.6
proceeding. The State did not oppose the stay, but the
assigned magistrate judge denied the motion without
prejudice. The judge recognized that Duke’s petition
presented only claims that had been fully exhausted in state
court, and that Kelly v. Small allows a stay of federal habeas
proceedings only if a petition presents a mix of exhausted
and unexhausted claims. See 315 F.3d 1063, 1070 (9th Cir.
2003), abrogated on other grounds by Pliler v. Ford, 542
U.S. 225 (2004); see also Rhines v. Weber, 544 U.S. 269,
278 (2005). The magistrate judge advised Duke that if he
renewed his request for a stay, he must “seek to amend the
Petition to add any unexhausted claims.” Duke did not have
any unexhausted constitutional claims, and he did not renew
his motion for a stay.
In April 2020, the magistrate judge issued a sua sponte
order to show cause why Duke’s petition should not be
dismissed under the Younger abstention doctrine because the
§ 1172.6 appeal remained pending. Duke argued the
Younger abstention doctrine did not apply because he had
“exhausted all his issues,” “[did] not wish to enjoin the state
prosecution,” and had in fact requested a stay of his federal
habeas proceedings. He also argued that if the court
dismissed his federal habeas petition, he might be time-
to the district court’s June 18, 2019 order requiring a response to the
petition. If the court consulted that version of the petition, the
automatically generated CM/ECF header would have displayed June 18,
2019 as the filing date.

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D UKE V. G ASTELO 9
barred from filing another one because his original filing
deadline had already passed. See 28 U.S.C. § 2244(d)(1)(A).
The State filed a two-and-a-half-page response stating that
Younger abstention was warranted.
The magistrate judge’s Report and Recommendation
(R&R) advised dismissing Duke’s habeas petition without
prejudice because it concluded all Younger abstention
requirements were met. The recommendation reasoned that:
(1) the state-court resentencing proceeding was ongoing
when Duke filed his federal habeas petition; (2) the
resentencing proceeding “implicate[d] an important state
interest in enforcing criminal laws without federal
interference”; (3) Duke “[did] not appear barred from
litigating federal constitutional issues in his pending state
proceeding for resentencing”; and (4) granting Duke the
habeas relief he sought “would have the practical effect of
enjoining the ongoing state resentencing proceeding.” The
R&R further concluded that Younger necessitated dismissal
rather than the stay Duke had requested. The R&R observed
that “AEDPA’s one-year limitation period is tolled while a
California Court considers an application for collateral
review,” but as Duke pointed out, there was no controlling
authority resolving whether § 1172.6 proceedings constitute
“collateral review” for purposes of tolling the federal
limitations period. Neither the State nor the district court
cited any authority resolving that issue. The R&R declined
to opine on “whether [Duke] has satisfied AEDPA’s statute
of limitations of a hypothetical future federal habeas
petition” and advised that Duke “should not delay in filing a
future federal habeas petition” if his state appeal was
unsuccessful. The district court accepted the R&R and
denied a certificate of appealability. Duke appealed and our
court granted a certificate of appealability, concluding that

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Duke’s petition “states at least one federal constitutional
claim debatable among jurists of reason, namely whether the
prosecutor committed misconduct in violation of appellant’s
right to due process.”
Meanwhile, Duke’s state § 1172.6 proceedings
continued. The California Court of Appeal affirmed the
superior court’s denial of Duke’s § 1172.6 petition, but the
California Supreme Court granted review and remanded the
petition to the Court of Appeal with instructions to vacate
and reconsider its decision in light of a statutory amendment
governing evidentiary hearings held pursuant to § 1172.6.
The Court of Appeal determined that Duke was entitled to a
new evidentiary hearing under the amended statute and
remanded the petition to the superior court. As of the time
this appeal was submitted for a decision in our court, the
state superior court had yet to hold a new hearing on Duke’s
resentencing petition.3
II.
We have jurisdiction pursuant to 28 U.S.C. § 2253. We
review de novo a district court’s application of the Younger
abstention doctrine and must “conduct the Younger analysis
‘in light of the facts and circumstances existing at the time
the federal action was filed.’” Rynearson v. Ferguson, 903
F.3d 920, 924 (9th Cir. 2018) (quoting Potrero Hills
Landfill, Inc. v. County of Solano, 657 F.3d 876, 881 n.6 (9th
Cir. 2011)).
We review a district court’s stay order for abuse of
discretion. Dependable Highway Exp., Inc. v. Navigators
3 We take judicial notice of the docket in Duke’s § 1172.6 proceedings.
See Fed. R. Evid. 201(b); Harris v. County of Orange, 682 F.3d 1126,
1131–32 (9th Cir. 2012).

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D UKE V. G ASTELO 11
Ins. Co., 498 F.3d 1059, 1066 (9th Cir. 2007). A district
court abuses its discretion in granting or denying a stay “if it
‘base[s] its ruling on an erroneous view of the law or on a
clearly erroneous assessment of the evidence.’” Id.
(alteration in original) (quoting Cooter & Gell v. Hartmarx
Corp., 496 U.S. 384, 405 (1990)).
III.
Younger abstention is “an extraordinary and narrow
exception to the general rule that federal courts ‘have no
more right to decline the exercise of jurisdiction which is
given, than to usurp that which is not given.’” Cook v.
Harding, 879 F.3d 1035, 1038 (9th Cir. 2018) (quoting
Nationwide Biweekly Admin., Inc. v. Owen, 873 F.3d 716,
727 (9th Cir. 2017)). As Wright and Miller explain, the heart
of Younger is the principle that “a federal court should not
enjoin a state criminal prosecution begun prior to the
institution of the federal suit except in very unusual
situations, where necessary to prevent immediate irreparable
injury.” 17B Charles Alan Wright & Arthur R. Miller et al.,
Federal Practice & Procedure § 4251 (3d ed. 2002)
(quoting Samuels v. Mackell, 401 U.S. 66, 69 (1971)).
In Younger, a plaintiff sought to enjoin a state’s criminal
prosecution of him for violating a state statute that the
plaintiff claimed was unconstitutional under the First and
Fourteenth Amendments. 401 U.S. at 38–39. A federal
district court enjoined the state criminal proceeding, but the
Supreme Court reversed, holding that federal courts cannot
enjoin pending state criminal proceedings in the absence of
exceptional circumstances. Id. at 40–41. The Court
identified two “primary sources” for the “longstanding
public policy against federal court interference with state
court proceedings”:

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One is the basic doctrine of equity
jurisprudence that courts of equity should not
act, and particularly should not act to restrain
a criminal prosecution, when the moving
party has an adequate remedy at law and will
not suffer irreparable injury if denied
equitable relief. . . . 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.
Id. at 43–44. Though Younger concerned a criminal
prosecution, the Court later extended the doctrine to “state
civil proceedings that are akin to criminal prosecutions” and
proceedings that “implicate a State’s interest in enforcing the
orders and judgments of its courts.” Sprint Commc’ns, Inc.
v. Jacobs, 571 U.S. 69, 72–73 (2013) (citing Huffman v.
Pursue, Ltd., 420 U.S. 592 (1975); Pennzoil Co. v. Texaco
Inc., 481 U.S. 1 (1987)).
We have articulated a four-part test to determine when
Younger requires that federal courts abstain from
adjudicating cases that would enjoin or risk interfering with
pending state-court proceedings. “Younger abstention is
appropriate when: (1) there is ‘an ongoing state judicial

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D UKE V. G ASTELO 13
proceeding’; (2) the proceeding ‘implicate[s] important state
interests’; (3) there is ‘an adequate opportunity in the state
proceedings to raise constitutional challenges’; and (4) the
requested relief ‘seek[s] 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 in original) (quoting ReadyLink Healthcare, Inc.
v. State Compensation Ins. Fund, 754 F.3d 754, 758 (9th Cir.
2014)). Abstention is only appropriate when all four
requirements are met. See AmerisourceBergen Corp. v.
Roden, 495 F.3d 1143, 1149 (9th Cir. 2007). The parties’
dispute centers on the third part of the test.
A.
Our court has not yet considered whether a federal
habeas petitioner’s ongoing § 1172.6 proceeding mandates
Younger abstention, but we observe at the outset that the
animating rationale of Younger is not implicated here.
Although there is an ongoing state proceeding—the
resentencing under § 1172.6 based on a change in state
law—the federal petition in this case does not seek an
injunction to prevent state officers from moving forward
with the § 1172.6 proceeding. That proceeding is in
substance a new case based on a new statute, and Duke seeks
no relief that would interfere with it. Instead, Duke filed his
federal habeas petition eleven days before the statute of
limitations expired to ensure his petition would be timely,
and then sought a stay pending the resolution of his § 1172.6
proceeding. A stayed federal petition cannot have “‘the
practical effect of enjoining’ the ongoing state judicial
proceeding.” Arevalo, 882 F.3d at 765 (quoting ReadyLink,
754 F.3d at 758).

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Younger did not mandate dismissal of Duke’s federal
habeas petition because the third part of the test for Younger
abstention is not met in his case. As the State concedes, the
§ 1172.6 resentencing proceeding will not address Duke’s
constitutional challenges. See Cal. Penal Code § 1172.6(b)–
(d); see also Arevalo, 882 F.3d at 765. Indeed, the State’s
brief on appeal explains that the § 1172.6 process “is not
concerned with such claims” because it is “narrowly focused
on the statutory [resentencing] eligibility criteria,” and “the
limited nature of section [1172.6] means the state courts do
not weigh whether a conviction was . . . tainted by trial
error.”
By filing and moving to stay his federal petition until the
state resentencing proceeding concludes, Duke sought to
satisfy the statute of limitations and preserve his right to file
one § 2254 petition arguing that the state courts’ resolution
of his federal constitutional claims was unreasonable. See
28 U.S.C. § 2254(d)(1). To be sure, the burden of proving
that a state-court proceeding fell short of federal
constitutional minimums is heavy, but the right to pursue a
timely filed federal habeas petition is guaranteed. Id.
§ 2254(a). For purposes of the present appeal, the salient
point is that the State agrees there is no possibility the
ongoing § 1172.6 proceeding will address Duke’s
constitutional claims; indeed, the state courts have already
considered and rejected them.
The Supreme Court has been clear that Younger
abstention is motivated by the need to refrain from granting
injunctive relief where a litigant has adequate legal remedies
and therefore does not face immediate irreparable injury, and
by the “even more vital consideration” of comity. 401 U.S.
at 44. As the Supreme Court explained three years after
deciding Younger, “a pending state proceeding, in all but

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D UKE V. G ASTELO 15
unusual cases, [will] provide the federal plaintiff with the
necessary vehicle for vindicating his constitutional rights.”
Steffel v. Thompson, 415 U.S. 452, 460 (1974). “[I]n that
circumstance, the restraining of an ongoing prosecution
would entail an unseemly failure to give effect to the
principle that state courts have the solemn responsibility,
equally with the federal courts ‘to guard, enforce, and protect
every right granted or secured by the constitution of the
United States . . . .’” Id. at 460–61 (quoting Robb v.
Connolly, 111 U.S. 624, 637 (1884)). “The policy of
equitable restraint expressed in Younger v. Harris, in short,
is founded on the premise that ordinarily a pending state
prosecution provides the accused a fair and sufficient
opportunity for vindication of federal constitutional rights.”
Kugler v. Helfant, 421 U.S. 117, 124 (1975); see also
Huffman, 420 U.S. at 604; Gilbertson v. Albright, 381 F.3d
965, 972 (9th Cir. 2004) (en banc).
The rationale underlying the Younger abstention
doctrine illuminates why the doctrine does not apply in
Duke’s case. The plaintiff in Younger sought to enjoin state-
court proceedings because he preferred litigating his
constitutional claims in federal court, even though he could
have raised his constitutional challenges as a defense in his
state criminal proceedings. The Court later explained why
the ability to vindicate constitutional claims in state court
supports abstention: if a federal court enjoins state
proceedings without giving the state court an opportunity to
consider a plaintiff’s constitutional claims, that intervention
can “be interpreted as reflecting negatively upon the state
court’s ability to enforce constitutional principles.” Steffel,
415 U.S. at 462. By contrast, where, as here, a state
proceeding affords no opportunity for a litigant to raise
federal constitutional claims, Younger’s comity concerns do

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not come into play because there is no risk that the federal
court’s actions will evince an impermissible “presumption
that the state courts will not safeguard federal constitutional
rights.” Middlesex Cnty. Ethics Comm. v. Garden State Bar
Ass’n, 457 U.S. 423, 431 (1982) (emphasis omitted).
Because the third part of Younger’s test is not satisfied, the
district court erred by dismissing Duke’s habeas petition
based on Younger abstention. See AmerisourceBergen
Corp., 495 F.3d at 1148 (“[W]hen each of an abstention
doctrine’s requirements are not strictly met, the doctrine
should not be applied.”).
The dissent misunderstands Younger’s third
requirement, and mistakenly suggests that the question here
is “how many chances” Duke has had to raise his
constitutional claims in state court. Dissent at 27. What the
dissent misses is that Younger is not focused on the number
of opportunities a state provides for challenging
constitutional errors. Rather, Younger’s aim is to avoid
interference with ongoing state-court proceedings when the
state court still has a chance to rule on federal claims.
Middlesex Cnty. Ethics Comm., 457 U.S. at 431; see also
Steffel, 415 U.S. at 462. Properly framed, the third
requirement for Younger abstention asks whether there
remains an opportunity to litigate the federal claim in a state-
court proceeding at the time the federal court is considering
whether to abstain. Younger’s underlying comity rationale,
coupled with the State’s concession that Duke cannot litigate
his federal claims in the pending § 1172.6 proceeding, is
dispositive of this appeal because the only ongoing
proceeding in state court does not afford another chance for
the California courts to rule on Duke’s federal claims.
The dissent finds it significant that the Supreme Court
has used the past tense when describing litigants’

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D UKE V. G ASTELO 17
opportunities to raise constitutional claims in state court: the
plaintiffs “had an opportunity,” or their constitutional claims
“could have been raised.” Dissent at 30, 32 (first quoting
Juidice v. Vail, 430 U.S. 327, 337 (1977); then quoting
Moore v. Sims, 442 U.S. 415, 425 (1979)). But when read
in context, it is clear the Court used the past tense because it
was describing a moment in time that occurred months or
years before Supreme Court review: when the plaintiff filed
a federal action in district court seeking to enjoin an ongoing
state-court proceeding.
Undeterred, the dissent argues that a court must “look at
all state-court proceedings—past, present, and future—
afforded to the plaintiff,” “[a]nd if that plaintiff had or will
have any chance to raise constitutional challenges in a state
forum,” Younger abstention is required. Dissent at 34.
There is no support for this sweeping and novel
interpretation of Younger.
In each of the cases the dissent relies upon, an
opportunity still remained to raise federal constitutional
claims in state court when the plaintiff initiated a federal
action.4 In Middlesex County Ethics Committee, for
example, the plaintiff was an attorney subject to state
disciplinary proceedings who filed a federal suit contending
that the state’s disciplinary rules violated the First
Amendment. 457 U.S. at 428–29. When the district court
abstained under Younger, the plaintiff argued that doing so
was improper because he had no opportunity to raise his
4 We also note that none of these cases involved a federal habeas petition,
and unlike Duke, the plaintiffs in all four cases sought to enjoin ongoing
state-court proceedings. Ohio C.R. Comm’n, 477 U.S. at 621; Middlesex
Cnty. Ethics Comm., 457 U.S. at 429; Moore, 442 U.S. at 421–22;
Juidice, 430 U.S. at 328–29.

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federal constitutional challenges in the state disciplinary
proceedings. Id. at 429, 435. The Supreme Court disagreed,
reasoning that “nothing . . . indicate[d] that the members of
the Ethics Committee . . . would have refused to consider a
claim that the rules which they were enforcing violated
federal constitutional guarantees,” id. at 435, and observing
that the New Jersey Supreme Court did review the plaintiff’s
constitutional challenges after the district court ruled, id. at
436. Likewise, in Ohio Civil Rights Commission v. Dayton
Christian Schools, Inc., the Court concluded that Younger
abstention was warranted where a plaintiff sought to enjoin
a state civil rights commission’s adjudication of a
discrimination complaint. 477 U.S. 619, 629 (1986). The
Court observed that the plaintiff retained the ability to raise
constitutional challenges in the state court’s process for
reviewing the commission’s decision. Id. at 629.
Juidice v. Vail is in accord. 430 U.S. at 337. There, the
federal-court plaintiffs were judgment debtors who had been
found in contempt in New York state court. Id. at 328–30.
They filed a class action in federal court seeking to enjoin
New York’s statutory contempt procedures on constitutional
grounds. Id. The Supreme Court held that only two of the
plaintiffs had standing to pursue injunctive relief at the time
they joined the federal action; one plaintiff faced a pending
order of contempt, and the other had failed to comply with
an order to show cause. Id. at 332. As to those two plaintiffs,
the Supreme Court held that Younger abstention was
warranted because both of those plaintiffs had a prospective
opportunity to raise their constitutional claims in New York
court in the very contempt proceedings they sought to enjoin,
and the state proceedings were still ongoing when they
sought injunctive relief in the federal district court. Id. at
330, 337 & n.14. As the Supreme Court observed, “[e]ven

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D UKE V. G ASTELO 19
after the order of contempt had been issued, a motion to
vacate . . . was available, and it would have been possible to
seek a stay or a temporary restraining order on the fine and
commitment.” Id. at 337 n.14; see also Moore, 442 U.S. at
430–31 (concluding district court should have abstained
under Younger because plaintiffs’ federal action was filed
when their constitutional claims could have been asserted as
counterclaims in their ongoing state-court proceeding).5
The State argues on appeal that the third part of
Younger’s test was met in Duke’s case—but for a different
reason than the one advanced by our dissenting colleague.6
Pointing to Younger’s statement that courts of equity should
not act “when the moving party has an adequate remedy at
law,” the State argues that Younger’s third prong is satisfied
because § 1172.6 “offers an adequate remedy even though it
does not contemplate claims similar to those raised on
habeas corpus.” The State concludes that § 1172.6 offers
Duke an adequate remedy because if his resentencing
petition is successful, “it will likely result in his release on
time served.” In other words, the State’s opposition is
premised upon its prediction that if Duke prevails in the
§ 1172.6 proceeding, the superior court would likely reduce
his conviction to assault with a deadly weapon, an offense
5 The dissent focuses on plaintiff Vail, but the Court determined that Vail
lacked standing because he had already paid the fine imposed in the
contempt proceeding. Juidice, 430 U.S. at 332–33. The Court held that
Younger abstention was warranted because the two plaintiffs who had
standing also had prospective opportunities to raise their constitutional
challenges in state court. Id. at 330, 337 & n.14.
6 The State did not oppose Duke’s motion for a stay in the district court
when Duke initially requested it, but the State argued that Younger
abstention was appropriate after the district court issued an order to show
cause, and the State now opposes Duke’s appeal.

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20 D UKE V. G ASTELO
that carries a maximum sentence that is lower than the
amount of time Duke has already served. The State
recognizes that Duke would still stand convicted and that the
superior court could place Duke on parole for up to two years
following the completion of his sentence, Cal. Penal Code
§ 1172.6(h), but it maintains “that scenario is hypothetical at
this point.”7
The State’s speculative argument cannot justify Younger
abstention. First, though Younger spoke broadly of
abstention when a state proceeding affords “an adequate
remedy,” controlling case law applying Younger has more
specifically identified the opportunity to raise federal
constitutional claims in state proceedings as a “threshold
element” of Younger abstention. Gilbertson, 381 F.3d at
978; see, e.g., Ohio C.R. Comm’n, 477 U.S. at 628;
Middlesex Cnty. Ethics Comm, 457 U.S. at 435–36; Juidice,
430 U.S. at 337; Arevalo, 882 F.3d at 766;
AmerisourceBergen Corp., 495 F.3d at 1149. Second, the
State’s characterization of the § 1172.6 proceeding as
adequate ignores the difference between the relief available
in the two proceedings: in the state proceeding, Duke seeks
resentencing on the basis that the State’s evidence did not
satisfy California’s definition of malice, and malice is now
an element necessary for his murder conviction. By contrast,
Duke’s federal habeas petition argues that his original trial
was infirm because it was tainted by prosecutorial
7 The State does not address our precedent recognizing the “presumption
that collateral consequences arise from any criminal conviction.” Wood
v. Hall, 130 F.3d 373, 376 (9th Cir. 1997) (“A petition for habeas corpus
is not moot if adverse collateral consequences continue to flow from the
underlying conviction.”); see also Spencer v. Kemna, 523 U.S. 1, 7–12
(1998).

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D UKE V. G ASTELO 21
misconduct in violation of his constitutional rights. The
federal petition seeks a retrial and the chance to be acquitted
of all charges; the state proceeding seeks a reduced offense
and resentencing.
A new judgment for assault with a deadly weapon would
not offer a remedy adequate to encompass the aim of Duke’s
federal habeas petition, nor would it satisfy the third part of
the Younger test because Duke has no prospect of presenting
his constitutional challenges in the ongoing § 1172.6
proceeding. As such, Younger’s “adequate opportunity”
requirement is not satisfied, and Younger abstention was not
warranted.
B.
The denial of Duke’s motion for a stay was also error
because it was based on the misunderstanding that the
district court lacked the authority to stay Duke’s habeas
petition. See Dependable Highway Exp., Inc., 498 F.3d at
1066. When it considered Duke’s initial motion for a stay,
the district court reasoned that Duke “[did] not qualify for a
stay” because his circumstances did not match those required
for a Rhines/Kelly stay. See Rhines, 544 U.S. at 278
(allowing district courts to stay federal habeas petitions
containing a mix of exhausted and unexhausted claims so
petitioners may preserve the federal statute of limitations
while returning to state court to exhaust their federal claims);
Kelly, 315 F.3d at 1070–71. The requirements for
Rhines/Kelly stays are narrow because those stays are
exceptions to the general rule that courts must dismiss mixed
habeas petitions without prejudice. See Rose v. Lundy, 455
U.S. 509, 522 (1982). The “total exhaustion rule” was
designed to “encourage habeas petitioners to exhaust all of
their claims in state court and to present the federal court

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22 D UKE V. G ASTELO
with a single habeas petition.” Id. at 520. The district court
was correct that a Rhines/Kelly stay would not have been
warranted in Duke’s case because his habeas petition did not
include any unexhausted claims. But as the State concedes,
the fact that Duke’s petition included only exhausted claims
also meant there was no prospect that a stayed federal
petition would interfere with the § 1172.6 proceeding.
Notably, under the dissent’s interpretation of Younger, even
Rhines/Kelly stays would be impermissible.8
Because there was no chance Duke’s constitutional
claims would be litigated in the resentencing proceeding, the
test for Younger abstention was not satisfied and the district
court retained discretion to grant a stay. See Lockyer v.
Mirant Corp., 398 F.3d 1098, 1111 (9th Cir. 2005). The
circumstances weighed heavily in favor of doing so: there
was uncertainty regarding whether the § 1172.6 petition
8 The rationale supporting Rhines/Kelly stays lends further support to the
conclusion that the district court erred by abstaining and dismissing
Duke’s petition. In Rhines, the Supreme Court created an exception to
the pre-AEDPA rule that federal courts must dismiss mixed petitions
without prejudice, recognizing that AEDPA’s one-year deadline would
otherwise create circumstances under which petitioners faced “the risk
of forever losing their opportunity for any federal review of their
unexhausted claims.” 544 U.S. at 275. Likewise, our Younger case law
recognizes rare exceptions where abstention is inappropriate if it would
cause a plaintiff to forfeit their federal claims. See, e.g., Arevalo, 882
F.3d 763 (holding Younger abstention was inappropriate when plaintiff
would face “irreparable harm” if the federal court abstained because his
habeas petition challenged the conditions of his pretrial confinement and
he had exhausted his state remedies for this claim); Mannes v. Gillespie,
967 F.2d 1310, 1312 (9th Cir. 1992) (“A claim that a state prosecution
will violate the Double Jeopardy Clause presents an exception to the
general rule of Younger . . . . [b]ecause full vindication of the right
necessarily requires intervention before trial.”).

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D UKE V. G ASTELO 23
would toll Duke’s federal filing deadline because there is no
controlling authority on that point and the parties had not
briefed the issue; only 11 days remained until Duke’s
AEDPA filing period ended; the State did not oppose Duke’s
request for a stay; and there was no possibility a stayed
federal petition would interfere with the state resentencing
proceeding.
The district court was not limited to considering a
Rhines/Kelly stay, and denying a stay unnecessarily created
a significant risk that Duke would lose his one chance for
federal review of his constitutional claims. See Kelly, 315
F.3d at 1070 (“‘[T]here is a growing consensus that a stay is
required when dismissal could jeopardize the petitioner’s
ability to obtain federal review.’ . . . [W]e join the ‘growing
consensus’ in recognizing the clear appropriateness of a stay
when valid claims would otherwise be forfeited.” (quoting
Nowaczyk v. Warden, 299 F.3d 69, 79 (1st Cir. 2002))).
Though the dissent expresses exasperation that Duke seeks
federal review of his constitutional claims after
unsuccessfully raising them in several state proceedings, the
layers of state review are not the federal courts’ concern.
The federal constitution guarantees Duke one shot at federal
review of the state courts’ resolution of his federal claims,
and that right may be forever lost if Duke’s petition is
dismissed rather than stayed.9
9 The State argues that if Younger does not apply, we should stay Duke’s
petition pursuant to Pullman abstention. See R.R. Comm’n of Tex. v.
Pullman Co., 312 U.S. 496 (1941). That doctrine “is appropriate when:
(1) the federal plaintiff’s complaint requires resolution of a sensitive
question of federal constitutional law; (2) the constitutional question
could be mooted or narrowed by a definitive ruling on the state law
issues; and (3) the possibly determinative issue of state law is unclear.”
San Remo Hotel v. City and County of San Francisco, 145 F.3d 1095,

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24 D UKE V. G ASTELO
IV.
We conclude the district court erred by dismissing
Duke’s petition for a writ of habeas corpus because the test
for Younger abstention was not satisfied. Under the
circumstances of this case, the denial of a stay and dismissal
of Duke’s petition constituted an abuse of discretion.
REVERSED and REMANDED.
1104 (9th Cir. 1998). The State did not raise Pullman abstention in the
district court, and we generally do not consider arguments raised for the
first time on appeal.

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D UKE V. G ASTELO 25
BUMATAY, Circuit Judge, dissenting:
In 2012, Jonathan Duke assisted in the murder of Victor
Enriquez. Duke and Enriquez were both members of the
Rollin’ 60’s, a gang associated with the Crips. Despite their
shared gang membership, Duke and Enriquez disliked one
another. Along with past physical altercations, Duke
thought Enriquez was a snitch. On the night of the murder,
Duke and his co-defendant, Alfred Crowder, said that they
“got to do something to” Enriquez. After finding Enriquez
at a nearby apartment complex, Duke and Crowder walked
up to him and began to assault him. Enriquez tried to run
away, but Crowder caught up. As Duke stood guard,
Crowder then stabbed Enriquez 15 times, killing him. A jury
found Duke guilty of first-degree murder, and he was
sentenced to 25 years-to-life in prison.
Since his conviction, Duke has repeatedly claimed that
his constitutional rights were violated. Among other issues,
Duke believed that his prosecution violated Brady and
Miranda, that the government failed to prove his guilt
beyond a reasonable doubt, that his attorney provided
ineffective assistance, and that the prosecution engaged in
misconduct. Duke has pressed his constitutional claims in
multiple state-court proceedings:
First, Duke raised his constitutional claims on direct
appeal to the California Court of Appeal. That court found
an error in the jury instructions used at Duke’s trial under
state law, caused his conviction to be reduced to second-
degree murder, and had him resentenced to 15 years to life.
But the court held that Duke’s constitutional challenges
lacked merit or were harmless error.

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26 D UKE V. G ASTELO
Second, Duke petitioned the California Supreme Court
to hear his constitutional claims. That court denied review.
Third, Duke filed a petition for a writ of habeas corpus
in the California Court of Appeal, reiterating his
constitutional challenges. That petition was also denied.
Fourth, Duke asked the California Supreme Court to
review his constitutional claims on habeas review. Duke
was unsuccessful.
The state-court proceedings against Duke are ongoing.
In the latest iteration, Duke seeks to vacate his murder
conviction under California Penal Code § 1172.6. Under the
new state law, California limited felony-murder liability and
established procedures to have convictions for some felony-
murder homicides vacated. Cal. Pen. Code § 1172.6. So
persons convicted under an abolished felony-murder theory
may have their convictions set aside and be resentenced on
remaining convictions if certain conditions are met. Id.
While Duke states that he can’t bring his constitutional
claims in § 1172.6 proceedings, if successful, he must be
released or resentenced by the state court. The State of
California opposes Duke’s § 1172.6 petition and continues
to defend his conviction and sentence in state court.
Now, Duke brings a habeas petition in federal district
court pressing the same constitutional challenges to
invalidate his state court conviction—even as state courts are
adjudicating the validity of the same conviction. Ordinarily,
in the criminal context, whenever a federal action would
interfere with a state action—like Duke’s federal habeas
petition would with the § 1172.6 proceedings—federal
courts apply what’s called Younger abstention. See Younger
v. Harris, 401 U.S. 37 (1971). That is, federal courts abstain
from adjudicating cases that would essentially enjoin

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D UKE V. G ASTELO 27
pending state-court proceedings. Younger abstention applies
when a person has had an adequate opportunity to present
his federal constitutional claims in state court.
The question here—how many chances must Duke have
to raise his constitutional claims in state proceedings before
we will invoke Younger abstention? The majority maintains
that it doesn’t matter how many times Duke had previously
raised his claims in state court. Ignoring Duke’s multiple
constitutional challenges in state courts, the majority instead
focuses myopically only on the pending § 1172.6
proceedings. And because Duke says that he can’t raise his
constitutional challenges in that particular proceeding, the
majority rules that Younger doesn’t apply. I disagree. The
Supreme Court has told us that Younger must apply
whenever a plaintiff has an opportunity to raise his
constitutional claims at any stage in the state-court
proceedings. And Duke has had opportunity after
opportunity to litigate his federal constitutional claims in
California courts. I thus respectfully dissent.
I.
A.
In Younger, the Supreme Court “espouse[d] a strong
federal policy against federal-court interference with
pending state judicial proceedings absent extraordinary
circumstances.” Middlesex Cnty. Ethics Comm. v. Garden
State Bar Ass’n, 457 U.S. 423, 431 (1982). Younger
abstention derives from the principle of “comity” that we
must pay to state courts. Id. It recognizes that we are a
“Union of separate state governments” and that our
constitutional system works best when States are “left free
to perform their separate functions in their separate ways.”
Id. “[P]roper respect” for state governments means that we

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28 D UKE V. G ASTELO
apply no “presumption that state courts will not safeguard
federal constitutional rights.” Id. At its core, Younger works
to prohibit federal actions from enjoining state criminal
prosecutions. New Orleans Pub. Serv., Inc. v. Council of
City of New Orleans, 491 U.S. 350, 364 (1989).
Younger is a “mandatory doctrine[].” Canatella v.
California, 404 F.3d 1106, 1113 (9th Cir. 2005). “District
courts applying Younger . . . may not exercise jurisdiction
when [its] standards are met; there is no discretion vested in
the district courts to do otherwise.” Id. (simplified). So
when the conditions for Younger are satisfied, unless an
exception applies, Younger must be invoked and “the district
court must dismiss the action.” Baffert v. Cal. Horse Racing
Bd., 332 F.3d 613, 617 (9th Cir. 2003) (emphasis added); see
Gibson v. Berryhill, 411 U.S. 564, 577 (1973) (“Younger v.
Harris contemplates the outright dismissal of the federal
suit, and the presentation of all claims, both state and federal,
to the state courts.”). As we’ve said, Younger abstention is
“essentially a jurisdictional doctrine.” Canatella, 404 F.3d
at 1113.
Younger abstention is invoked whenever “(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.” Page v. King, 932 F.3d 898, 901–02 (9th Cir.
2019) (simplified). We don’t apply Younger if there is a
“showing of bad faith, harassment, or some other
extraordinary circumstance that would make abstention
inappropriate.” Id. (simplified).
Three of these Younger prongs are easily met here—

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D UKE V. G ASTELO 29
First, Duke’s criminal proceedings are “ongoing” in
California courts. In his pending § 1172.6 proceedings, the
State of California continues to defend the validity of his
murder conviction. Like his initial conviction, at the
hearing, the State must “prove, beyond a reasonable doubt,
that [Duke] is guilty of murder or attempted murder” under
the State’s amended homicide statutes. See People v. Duke,
No. B300430, 2022 WL 883786, *4 (Cal. Ct. App. Mar. 25,
2022); Cal. Pen. Code § 1172.6(d)(3). Thus, it is an
extension of his prior criminal case.
Second, the ongoing § 1172.6 proceedings will
determine whether Duke, a convicted murderer, remains
incarcerated for the rest of his sentence—an important state
interest. See Kelly v. Robinson, 479 U.S. 36, 49 (1986)
(“[T]he States’ interest in administering their criminal
justice systems free from federal interference is one of the
most powerful of the considerations that should influence a
court considering equitable types of relief.”).
And finally, if Duke were to succeed in his federal
habeas petition, then our court’s actions would force
California to release Duke, which would terminate the
§ 1172.6 proceeding. So, this federal action would have the
practical effect of enjoining a state-court proceeding.
Thus, Younger’s application turns on the third prong—
whether Duke had an adequate opportunity to raise his
constitutional challenges in state proceedings.
B.
Given that Duke has already brought his federal
constitutional claims in multiple state-court proceedings,
Younger’s “adequate opportunity” requirement is satisfied
here. The Supreme Court has expressly held that Younger

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30 D UKE V. G ASTELO
only requires that the federal plaintiff “had an opportunity”
to raise constitutional claims in a state proceeding. Juidice
v. Vail, 430 U.S. 327, 337 (1977) (emphasis added). Nothing
in Supreme Court precedent requires that the plaintiff have
an ongoing opportunity to raise those claims in any
particular pending state proceeding. In other words, to
invoke Younger, the Court only requires an opportunity to
raise constitutional claims at any stage of the state-court
proceedings. And because Duke had at least four bites at the
apple in state court, we should have applied Younger here.
Juidice v. Vail instructs how we should consider the
“adequate opportunity” prong of Younger. In that case, a
debtor, Harry Vail, Jr., defaulted on a loan and ignored
multiple state-court proceedings to collect on the default. Id.
at 329. First, a city court entered a default judgment against
Vail and issued a subpoena ordering him to appear at a
deposition concerning the judgment. Id. After failing to
attend the deposition, a county court ordered Vail to appear
at a hearing to show cause why he should be not punished
with contempt. Id. Vail again failed to attend the county
court hearing. Id. The county court then entered an order
holding Vail in contempt and imposed a fine. Id. After Vail
failed to pay the fine, the county court had him arrested. Id.
at 330. He was released the next day after paying the fine.
Id. Vail then became a plaintiff along with others in a federal
action seeking to invalidate the state law allowing
imprisonment for contempt of court as unconstitutional. Id.
On review, the Supreme Court found that Vail lacked Article
III standing because he had already been arrested and
released, but it continued to the abstention analysis because
two co-plaintiffs still faced the threat of imprisonment. Id.
at 333. These remaining co-plaintiffs either faced a pending

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D UKE V. G ASTELO 31
order of contempt or had failed to comply with an order to
show cause. Id.
Since the co-plaintiffs never appeared in state court, they
did not raise any constitutional claims in state-court
proceedings. Id. Yet the Court considered whether Younger
applied because of “the existence of an available forum for
raising constitutional issues in a state judicial proceeding.”
Id. at 330. The Court said, yes, Younger still applies:
Here it is abundantly clear that appellees had
an opportunity to present their federal claims
in the state proceedings. No more is required
to invoke Younger abstention . . . . Appellees
need be accorded only an opportunity to
fairly pursue their constitutional claims in the
ongoing state proceedings . . . and their
failure to avail themselves of such
opportunities does not mean that the state
procedures were inadequate.
Id. at 337 (simplified).
To the Court, it made little difference that appellees’
opportunity to raise their constitutional claims happened in
past proceedings. Id. at 337 n.14. The Court emphasized the
past procedural mechanisms that would have been available
to appellees in state court. Indeed, the Court observed that
the “most propitious moment” to raise the claims “would
have been at the hearing on the order to show cause.” Id.
(emphasis added). “Even after the order of contempt had
been issued, a motion to vacate . . . was available,” the Court
continued, “and it would have been possible to seek a stay or
a temporary restraining order on the fine and commitment.”
Id. And if the appellees had availed themselves of those

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32 D UKE V. G ASTELO
past opportunities, then they “would have had final recourse,
available as of right,” to the Supreme Court. Id. Contrary to
the majority’s assertion, nothing in the Court’s opinion
identifies “prospective opportunities” for appellees to raise
their challenges. Maj. Op. 19. Instead, the Court expressly
used past tense—emphasizing what could have happened in
prior proceedings. Id. at 337. Thus, the Court only requires
that plaintiffs have an opportunity, including forgone
opportunities, to raise their constitutional claims.
Moore v. Sims, 442 U.S. 415 (1979), further supports
taking a broad view of adequate state-court opportunities. In
that case, the State of Texas initiated custody proceedings
against parents accused of child abuse. Id. at 419. The
parents defended against the suit in juvenile court and
through a petition for habeas relief in another state court. Id.
at 420–31. As custody was litigated in multiple state-court
venues, the parents brought a due process challenge to parts
of the Texas Family Code in federal court. Id. at 421. The
federal district court concluded that Younger abstention was
not warranted because the state case was “multifaceted” and
“there [was] no single state proceeding to which the
plaintiffs may look for relief on constitutional or any other
grounds.” Id. at 424 (simplified). The Supreme Court found
those reasons insufficient to avoid Younger. The Court
reemphasized that federal courts should not exercise
jurisdiction if the party “had an opportunity to present their
federal claims in the state proceedings.” Id. at 425 (quoting
Juidice, 430 U.S. at 337). According to the Court, the only
“pertinent issue is whether [the parents’] constitutional
claims could have been raised in the pending state
proceedings.” Id. (emphasis added). The Court then
established that “abstention is appropriate unless state law

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D UKE V. G ASTELO 33
clearly bars the interposition of the constitutional claims.”
Id.
Middlesex also makes clear that Younger doesn’t require
ongoing chances to bring constitutional challenges if there is
a clear opportunity to do so in the state forum. In that case,
a New Jersey bar ethics committee initiated disciplinary
proceedings against an attorney. 457 U.S. at 427–28. Rather
than respond to the committee, the attorney immediately
sued in federal district court contending that the proceedings
violated his First Amendment rights. Id. at 429. The district
court found that Younger applied, but the Third Circuit
reversed, holding “that the state bar disciplinary proceedings
did not provide a meaningful opportunity to adjudicate
constitutional claims.” Id. at 429. After the Third Circuit
ruled, the New Jersey Supreme Court sua sponte reviewed
the attorney’s constitutional issues because the local bar
committees served as an arm of that court. Id. at 435–36.
On review, the Court in Middlesex ruled that both the
disciplinary proceedings and the New Jersey Supreme
Court’s actions to review the claims independently satisfied
the “adequate opportunity” prong of Younger. Id. at 435–
37. First, the attorney did not show that the ethics
committee, even though an administrative proceeding,
would have “refused to consider” his constitutional claim.
Id. at 435. Second, the Court saw no reason to ignore the
New Jersey Supreme Court’s subsequent involvement. Id.
at 436. Once again, the Court expressly used past tense in
analyzing whether the “adequate opportunity” prong is
met—relying on the fact that the lawyer “has had abundant
opportunity” to present his claim in state proceedings. Id.
(emphasis added). “It would trivialize the principles of
comity and federalism,” the Court said, “if federal courts
failed to take into account that an adequate state forum for

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34 D UKE V. G ASTELO
all relevant issues has clearly been demonstrated to be
available prior to any proceedings on the merits in federal
court.” Id. at 437 (emphasis added). Thus, to the Court,
there’s no requirement that a party have a remaining or
ongoing opportunity to present constitutional claims in state
fora at the time the federal complaint is filed.
The weight of this precedent shows that a federal
plaintiff has an “adequate opportunity” to raise a
constitutional claim under Younger if those claims could
have been brought at any stage of state-court proceedings.
Juidice, Moore, and Middlesex teach us to look at all state-
court proceedings—past, present, and future—afforded the
plaintiff. And if that plaintiff had or will have any chance to
raise constitutional challenges in a state forum, “[n]o more
is required to invoke Younger abstention.” Juidice, 430 U.S.
at 337. Indeed, as we made clear, “Younger requires only
the absence of ‘procedural bars’ to raising a federal claim in
the state proceedings.” Commc’ns Telesystems Int’l v. Cal.
Pub. Util. Comm’n, 196 F.3d 1011, 1020 (9th Cir. 1999).
Applying these principles here, we should have affirmed
the dismissal of this case. Duke has had at least four
opportunities to raise his constitutional claims in state-court
proceedings: twice on direct appeal and twice on collateral
attack. And it makes no difference that his constitutional
attacks failed. See Dubinka v. Judges of the Superior Court,
23 F.3d 218, 224–25 (9th Cir. 1994). Thus, Duke has shown
no “procedural bars” to raising his federal claims in state
courts. Even assuming that Duke cannot bring his
constitutional claims for a fifth time in the § 1172.6
proceeding, Duke’s past opportunities more than suffice to
warrant applying Younger here.

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D UKE V. G ASTELO 35
C.
To get around mandatory abstention, the majority carves
up Duke’s state-court proceedings and says that only his
latest § 1172.6 hearing is relevant. And looking only at that
limited hearing, the majority believes that California doesn’t
afford Duke an adequate opportunity to present his federal
claims. But that’s not how the Supreme Court has treated
state-court proceedings. Even more, the majority seemingly
implies that the Court was imprecise when it used “past
tense” to describe a plaintiff’s opportunity to bring federal
claims. Maj. Op. 16–17. But rather than accusing the Court
of using poor English, we should’ve just followed what it
said.
Further, contrary to the majority’s view, our analysis
doesn’t change because Duke now seeks a stay of his federal
habeas proceedings to allow the state-court proceedings to
play out. See Maj. Op. 23. That’s because the “critical date
for purposes of deciding whether abstention principles apply
is the date the federal action is filed.” Gilbertson v. Albright,
381 F.3d 965, 969 n.4 (9th Cir. 2004). And as we’ve said,
“[w]hen a case is one in which the Younger doctrine applies,
the district court has no discretion; it must dismiss.” Delta
Dental Plan of Cal., Inc. v. Mendoza, 139 F.3d 1289, 1294
(9th Cir. 1998); see also Baffert, 332 F.3d at 617. “[I]f the
district court is required to abstain under Younger and
dismiss the suit, then it has no authority to rule on a party’s
motion” that asserts jurisdiction over the matter. Meredith
v. Oregon, 321 F.3d 807, 816 (9th Cir. 2003). Thus, when
Younger is invoked, “staying the action is not an option.”
Brian R. Means, Federal Habeas Manual § 1:112 (2022)
(citing Gibson, 411 U.S. at 577). Indeed, it would be odd to
conclude that all the conditions for Younger abstention exist,
but to allow a plaintiff to sidestep the doctrine by simply

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36 D UKE V. G ASTELO
requesting a stay. Such a ruling would not serve the
“comity” and “proper respect” due to state courts.
Middlesex, 457 U.S. at 431.
The majority tries to avoid this straightforward Younger
precedent based on analogies to Rhines and Kelly stays. Maj.
Op. 21–22 (citing Rhines v. Weber, 544 U.S. 269 (2005);
Kelly v. Small, 315 F.3d 1063 (9th Cir. 2003)). But those
types of stays are inapplicable here. Those stays do not
involve exhausted claims or ongoing state proceedings, as
here. The majority knows this, but still pushes forward with
its novel abstention jurisprudence. But we shouldn’t use an
expansive interpretation of inapplicable Rhines or Kelly
stays to contract Younger.
II.
Rather than narrow our focus on whether Duke may
bring his constitutional challenges in the § 1172.6
proceedings, we should have acknowledged that our court is
weighing in on a ten-year saga of criminal proceedings by
the State of California against Duke. By declining to invoke
Younger abstention here, we ignore the multiple
opportunities Duke had to adjudicate his constitutional
claims in a state forum. We thus upset the principles of
federalism that the Constitution requires us to respect. The
district court was right to dismiss Duke’s habeas petition—
no matter the collateral consequences.
I respectfully dissent.

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