United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 09-2826
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Timothy Lamont Howard, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* Eastern District of Arkansas.
Larry Norris, Director, Arkansas *
Department of Corrections, *
*
Appellant. *
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Submitted: April 12, 2010
Filed: August 12, 2010
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Before BYE, BEAM, and GRUENDER, Circuit Judges.
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BYE, Circuit Judge.
Larry Norris, the Director of the Arkansas Department of Corrections, filed this
interlocutory appeal of the district court's order staying Timothy Howard's federal
habeas proceeding. The district court stayed the proceeding to give Howard a chance
to return to state court to exhaust certain claims. Norris contends the district court
abused its discretion in granting the stay because the unexhausted claims are
procedurally defaulted, that is, Howard already had, and is limited to, one round of
post-conviction review in state court. Norris therefore claims there is no presently
available state court remedy for Howard to pursue his unexhausted claims. Howard
responds, in part, by moving to dismiss this interlocutory appeal on the grounds we
lack jurisdiction. Howard contends the collateral order doctrine does not apply to this
appeal because the disputed issue – whether Howard's unexhausted claims are
procedurally defaulted – can be addressed in an appeal from a final order. We agree.
We therefore grant Howard's motion to dismiss for lack of jurisdiction.
I
In 1999, an Arkansas jury found Howard guilty of two counts of capital murder
and one count of attempted capital murder. Howard was sentenced to death. He filed
a direct appeal in state court, which was unsuccessful. See Howard v. State, 79
S.W.3d 273 (Ark. 2002). He also sought post-conviction relief pursuant to Rule 37.5
of the Arkansas Rules of Criminal Procedure, which was also unsuccessful. See
Howard v. State, 238 S.W.3d 24 (Ark. 2006).
Howard filed a timely petition for a writ of habeas corpus pursuant to 28 U.S.C.
§ 2254. His initial petition consisted of 309 pages. The district court determined it
contained 160 grounds for relief, divided into twenty-three primary grounds for relief
with many subordinate claims. The district court directed Howard to file an amended
petition to more accurately determine the nature of each specific claim. In the
amended petition, Howard asked for a "stay and abeyance" of the federal proceeding
to give him a chance to return to state court and exhaust the claims that had not
already been addressed in state court. See Rhines v. Weber, 544 U.S. 269, 274-78
(2005) (outlining the stay-and-abeyance procedures available when a state prisoner
files a "mixed" habeas petition containing both exhausted and unexhausted claims).
Norris opposed the request for a stay and abeyance on the grounds that Rule 37.2(b)
of the Arkansas Rules of Criminal Procedure prohibits successive post-conviction
petitions, i.e., Howard's unexhausted claims were procedurally defaulted because he
already had one round of post-conviction review. Howard countered by contending
the Arkansas courts sometimes allow additional post-conviction review, especially in
death penalty cases. See, e.g., Lee v. State, 238 S.W.3d 52, 54-55 (Ark. 2006) (setting
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forth the criteria under which the Arkansas Supreme Court will recall a mandate and
reopen a prisoner's post-conviction proceedings); see also Sloan v. Delo, 54 F.3d
1371, 1381 (8th Cir. 1995) ("If a federal court is unsure whether a claim would be
rejected by the state courts, the habeas proceeding should be . . . stayed while the
claim is fairly presented to them.").
The district court concluded it would be a waste of judicial resources to hold
an evidentiary hearing on the habeas petition until the stay-and-abey issue was
resolved, and ordered Howard to file a statement listing the claims he believed had not
been exhausted. The parties ultimately agreed that at least seven claims had not been
exhausted in state court proceedings.1 The district court determined there was a
plausible argument that post-conviction proceedings remained available for Howard's
unexhausted claims, i.e., the claims were not procedurally defaulted. The district
court further determined Howard was eligible for the stay and abeyance procedure
outlined by the Supreme Court in Rhines because (1) Howard had good cause for his
failure to exhaust, (2) his unexhausted claims were potentially meritorious, and (3) he
had not engaged in intentionally dilatory litigation tactics. See Rhines, 544 U.S. at
278 (setting forth the three factors which guide a district court's decision to either
grant or deny a stay). The district court then granted Howard's request for a stay and
1
The seven claims both parties agree have not been exhausted in state court are:
(1) a claim the jury was selected and retained on the basis of race; (2) a claim Howard
was denied a right to a public trial when the trial court sealed the courtroom; (3) a
claim defense counsel had a conflict of interest while representing Howard; (4) a
claim of instructional error during the penalty phase regarding whether Howard might
be released on parole if sentenced to life in prison rather than death; (5) alleged
constitutional defects in the penalty phase verdict form; (6) a claim Howard is
mentally retarded and thus cannot be executed; and (7) ineffective assistance of
counsel claims involving Howard's post-conviction counsel. Notably, Howard's
seventh claim (ineffective assistance of post-conviction counsel) is the same type of
claim involved in Lee where the Arkansas Supreme Court granted a state prisoner
additional post-conviction review. See Lee, 238 S.W.3d at 57-58 (involving a claim
that post-conviction counsel was intoxicated during the Rule 37 proceedings).
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abeyance of the federal habeas proceeding to allow Howard to return to state court to
exhaust the seven claims.
Norris filed an interlocutory appeal pursuant to the collateral order doctrine.
On appeal, Norris acknowledges he is not challenging the district court's decision as
it relates to any of the three Rhines factors. Rather, Norris admits he only challenges
the district court's determination that the seven claims at issue were not procedurally
defaulted.
II
In general, the federal appellate courts only have jurisdiction over "final
decisions of the district courts of the United States." 28 U.S.C. § 1291. Under the
collateral order doctrine, however, we also have jurisdiction over a "narrow class of
decisions that do not terminate the litigation, but must, in the interest of achieving a
healthy legal system, nonetheless be treated as final." Digital Equip. Corp. v. Desktop
Direct, Inc., 511 U.S. 863, 867 (1994) (internal quotation marks and citation omitted).
The Supreme Court recently reiterated the limited scope of the collateral order
doctrine, emphasizing the "small class" of collateral rulings to which it applies, and
stressing that the exception must "never be allowed to swallow the general rule that
a party is entitled to a single appeal, to be deferred until final judgment has been
entered." Mohawk Indus., Inc. v. Carpenter, __ U.S. __, 130 S.Ct. 599, 605 (2009)
(quoting Digital Equip., 511 U.S. at 868).
In order to file an interlocutory appeal under the collateral order doctrine, the
decision appealed from must satisfy three requirements: (1) it must conclusively
determine the disputed question; (2) it must resolve an important issue completely
separate from the merits of the action; and (3) the decision must be effectively
unreviewable on appeal from a final judgment. Id. (quoting Swint v. Chambers
County Comm'n, 514 U.S. 35, 42 (1995)).
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This appeal fails the third condition "because a district court's conclusion about
whether a habeas claim has been exhausted is addressable on appeal after final
judgment." Thompson v. Frank, 599 F.3d 1088, 1090 (9th Cir. 2010); cf. Turnage v.
Fabian, 606 F.3d 933, 936-37 (8th Cir. 2010) (addressing a procedural default
argument on the merits on appeal from a final judgment); Storey v. Roper, 603 F.3d
507, 523-24 (8th Cir. 2010) (same).
Contrary to Norris's contention, our decision that we lack jurisdiction is not
foreclosed by our prior decisions in Carmichael v. White, 163 F.3d 1044 (8th Cir.
1998), or Rhines v. Weber, 346 F.3d 799 (8th Cir. 2003), rev'd, 544 U.S. 269 (2005)
(Rhines I). In Carmichael, we held an order holding a habeas petition in abeyance was
appealable under the collateral order doctrine, identifying the disputed issue as
"whether the district court may hold an unexhausted habeas petition in abeyance for
ninety days." 163 F.3d at 1045. We interpret Carmichael as being concerned about
the delay involved in a stay, because the delay itself cannot be undone on appeal from
a final judgment. The Supreme Court has now definitively answered the disputed
question involved in Carmichael, indicating district courts may hold petitions
containing unexhausted claims in abeyance under limited circumstances, that is, when
the three factors identified by the Supreme Court are present (good cause for the
failure to exhaust, the unexhausted claims are potentially meritorious, and the
petitioner is not engaging in abusive litigation tactics or intentional delay). Thus,
Rhines effectively balances the state's interest in avoiding delay in a habeas
proceeding, with the petitioner's (and the state's) interest in having habeas claims
addressed first in state court. After Rhines, then, Carmichael's rationale for employing
the collateral order doctrine is no longer applicable. Rather, Rhines conclusively
decided a reasonable delay for a petitioner's trip to state court and back, to exhaust
unexhausted claims, is justified in limited circumstances.
In Rhines I, we merely applied the holding in Carmichael to conclude "[w]e
have jurisdiction under the collateral order doctrine to review an interlocutory order
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holding a habeas petition in abeyance pending exhaustion of state court remedies."
346 F.3d at 799 (citing Carmichael, 163 F.3d at 1045). After the Supreme Court
reversed and remanded, however, the issue ultimately addressed on appeal was
whether the three factors identified by the Supreme Court as justifying a stay were
present. See Rhines v. Weber, 409 F.3d 982, 983 (8th Cir. 2005) (Rhines II) (vacating
the district court's decision and remanding the case for the district court to consider
whether there was good cause for the failure to exhaust, whether the unexhausted
claims were potentially meritorious, and whether the petitioner had engaged in
abusive litigation tactics or intentional delay).
Significantly, in this appeal Norris does not challenge the district court's
application of the three Rhines factors, and thus does not challenge the delay involved
in the stay itself. Norris challenges the propriety of the stay only as it relates to the
merits of whether the district court erred in concluding some of Howard's claims were
unexhausted. Because such issue is one which can be addressed on appeal after final
judgment, this interlocutory appeal does not satisfy the requirements of the collateral
order doctrine.
III
We therefore dismiss this appeal for lack of jurisdiction.
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