Thompson v. Frank

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

JAMES ALLEN THOMPSON,  No. 08-16982
Petitioner-Appellee,
D.C. No.
v.
 1:08-cv-00218-
CLAYTON FRANK, Dir. Dept. Public SOM-LEK
Safety, State of HI; et al.,
OPINION
Respondents-Appellants.

Appeal from the United States District Court
for the District of Hawaii
Susan Oki Mollway, Chief District Judge, Presiding

Submitted March 9, 2010*
San Francisco, California

Filed March 30, 2010

Before: Ferdinand F. Fernandez, Michael Daly Hawkins and
Sidney R. Thomas, Circuit Judges.

Per Curiam Opinion

*The panel unanimously finds this case suitable for decision without
oral argument. Fed. R. App. P. 34(a)(2).

5055
5056 THOMPSON v. FRANK

COUNSEL

James M. Anderson, Deputy Prosecuting Attorney, City and
County of Honolulu, Honolulu, Hawaii, for the respondent-
appellant.

Peter C. Wolff, Jr., Federal Public Defender, District of
Hawaii, Honolulu, Hawaii, for the petitioner-appellee.
 THOMPSON v. FRANK 5057
OPINION

PER CURIAM:

The State of Hawaii and other respondents appeal the dis-
trict court’s order staying a 28 U.S.C. § 2254 habeas corpus
petition filed by James Thompson, a Hawaii state prisoner,
who is serving a sentence of life with possibility of parole and
other concurrent sentences after his conviction of several
counts of sexual assault, attempt, and kidnapping. The district
court stayed proceedings in the case pending exhaustion of his
unexhausted claims in state court. We conclude we lack
appellate jurisdiction over the interlocutory appeal and dis-
miss it.

By statute, Courts of Appeals “have jurisdiction of appeals
from all final decisions of the district courts of the United
States . . . .” 28 U.S.C. § 1291. A final decision is typically
one “by which a district court disassociates itself from a
case.” Swint v. Chambers County Comm’n, 514 U.S. 35, 42
(1995). The Supreme Court “has long given § 1291 a practical
rather than a technical construction.” Mohawk Indus., Inc. v.
Carpenter, 130 S. Ct. 599, 605 (2009) (citing Cohen v. Bene-
fit Indus. Loan Corp., 337 U.S. 541, 546 (1949)).

[1] Under the collateral order doctrine, the Courts of
Appeals 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 omit-
ted). However, the Supreme Court has cautioned that the col-
lateral order doctrine “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, 130
S. Ct. at 605 (internal quotation marks omitted).

[2] In order to satisfy the collateral order rule’s exacting
standard, “an order must (1) conclusively determine the dis-
5058 THOMPSON v. FRANK
puted question, (2) resolve an important issue completely sep-
arate from the merits of the action, and (3) be effectively
unreviewable on appeal from a final judgment.” In re Copley
Press, Inc., 518 F.3d 1022, 1025 (9th Cir. 2008) (citing Coo-
pers & Lybrand v. Livesay, 437 U.S. 463, 468 (1978)) (inter-
nal quotation marks omitted). All three requirements must be
met for us to exercise appellate jurisdiction.
[3] In this case, the third requirement is not satisfied. A
district court order staying proceedings to allow a state habeas
petition to exhaust claims in state court is reviewable on
appeal after final judgment. Valdovinos v. McGrath, __ F.3d
__, No. 08-15918, 2010 WL 789536, at *4 (9th Cir. Mar. 10,
2010); Olvera v. Giurbino, 371 F.3d 569, 574 (9th Cir. 2004).
Similarly, any error that the district court made in determining
whether certain claims had been exhausted can be remedied
fully on appeal from the final judgment. See, e.g., Johnson v.
Zenon, 88 F.3d 828, 830-31 (9th Cir. 1996) (addressing on the
merits the state’s argument regarding exhaustion on appeal
after final judgment); Taylor v. Cain, 545 F.3d 327, 333 (5th
Cir. 2008) (same).
[4] In sum, because a district court’s conclusion about
whether a habeas claim has been exhausted is addressable on
appeal after final judgment, the requirements of the collateral
order doctrine are not satisfied. We lack appellate jurisdiction
over this appeal and must dismiss it.1
DISMISSED.
1
The procedural posture of Rhines v. Weber, 544 U.S. 269 (2005), does
not compel a contrary conclusion, as the state contends. The question of
appellate jurisdiction under the collateral order doctrine was not raised or
discussed in Rhines, which pre-dated the Supreme Court’s specific discus-
sion in Mohawk. When the Supreme Court does not address a jurisdic-
tional issue directly, any sub silentio assumption of jurisdiction in a case
“does not constitute binding authority” on the jurisdictional question.
Burbank-Glendale-Pasadena Airport Auth. v. City of Burbank, 136 F.3d
1360, 1363 (9th Cir.1998); see also Marley v. United States, 567 F.3d
1030, 1038 (9th Cir. 2009) (same).