Reyes Miranda, Petitioner-appellant, v. the State of Oregon, Respondent-appellee, 943 F.2d 55 (9th Cir. 1991)

MEMORANDUM^** 

Petitioner sued in the United States District Court to enjoin his resentencing by the Circuit Court of the State of Oregon, pursuant to the decision of the Oregon Supreme Court reported in State v. Miranda, 309 Or. 121, 786 P.2d 155 (1990). The District Court dismissed his action under the authority of Younger v. Harris, 401 U.S. 37 (1971). We affirm.

Defendant was convicted in state court of murder and was sentenced to death following Oregon's two-stage trial and sentencing procedure. The State Supreme Court found no error in his judgment of conviction, but found an error requiring resentencing.

Under the impression that a new penalty proceeding before a different jury violates the United States Constitution, the appellant seeks to enjoin his resentencing in state court. United States district courts do not enjoin ongoing state criminal proceedings when there is an adequate opportunity to raise federal questions in those proceedings. Younger v. Harris, 401 U.S. 37 at 45 (1971); World Famous Drinking Emporium v. City of Tempe, 820 F.2d 613 (9th Cir. 1987). We express no opinion whether a federal question is presented.

The appellant has cited no case and we have found none authorizing the United States District Court to grant injunctive relief when the state criminal proceedings are in the procedural posture of this case.

Judgment is AFFIRMED.