from the United States District Court for the District of
Utah (D.C. No. 2:07-CV-00359-CW)
F. Peterson, Assistant Solicitor General (Tyler R. Green,
Utah Solicitor General, Thomas Brunker, Deputy Solicitor
General, Daniel W. Boyer, Assistant Solicitor General, Sean
D. Reyes, Utah Attorney General, Salt Lake City, Utah, with
him on the briefs), for Respondent-Appellant.
Lindsey Layer, Assistant Federal Public Defender, Salt Lake
City, Utah (Jon M. Sands, Federal Public Defender for the
District of Arizona, Alexandra LeClair, Assistant Federal
Public Defender, Salt Lake City, Utah, with him on the
briefs), for Petitioner-Appellee.
BACHARACH, BALDOCK, and PHILLIPS, Circuit Judges.
BACHARACH, CIRCUIT JUDGE.
an interlocutory appeal from an order staying a habeas
proceeding. We lack jurisdiction and dismiss the appeal.
Troy Kell sought habeas relief, but he had not exhausted two
of his claims in state court. The unexhausted claims created
a Catch-22 for Mr. Kell, risking a dismissal of all of his
claims without an opportunity to timely refile. To relieve
Mr. Kell of this Catch-22, the district court entered a
limited stay, halting proceedings on one of the unexhausted
claims while Mr. Kell returned to state court to exhaust the
claim. For the remaining habeas claims, however, the district
court continued with the proceedings.
midst of the ongoing habeas proceedings in district court,
Utah appealed from the grant of a stay, arguing that the
district court should have declined to grant a stay. Our
threshold question involves appellate jurisdiction. To
establish jurisdiction, Utah relies on the collateral-order
doctrine, which allows appeals from some decisions before the
entry of a final judgment. But the district court's
issuance of a stay does not satisfy the collateral-order
doctrine's requirements, so we dismiss the appeal for
lack of appellate jurisdiction.
Mr. Kell timely files a habeas petition.
Kell was convicted of murder and sentenced to death in Utah,
and his conviction became final roughly sixteen years ago.
Mr. Kell then had one year to seek federal habeas relief, but
the one-year limitations period was tolled while he pursued
state post-conviction remedies. 28 U.S.C. § 2244(d).
When the state post-conviction proceedings ended in 2009, Mr.
Kell timely filed a federal habeas petition.
The district court stays the habeas case to allow Mr. Kell to
exhaust a new claim.
2013, Mr. Kell asserted two new habeas claims: (1) that the
trial court had improperly commented to the jury that Mr.
Kell bore the burden in the penalty phase to show that his
life should be spared and (2) that the jurors had improperly
considered extraneous information. Mr. Kell had not exhausted
the two new claims, so the district court needed to grapple
with how to proceed. Continuing with the new habeas claims
could prevent consideration of any of the claims because a
federal district court must ordinarily dismiss the entire
petition when one or more of the habeas claims are
unexhausted. Rose v. Lundy, 455 U.S. 509, 522
(1982). Given the possibility of dismissal, Mr. Kell faced a
dilemma: If the district court were to dismiss the habeas
petition and he later refiled in federal court, the statute
of limitations might have expired on all of his claims.
avoid this dilemma, Mr. Kell requested a stay so that he
could exhaust his new habeas claims in state court. For this
request, Mr. Kell invoked a procedure adopted in Rhines
v. Weber, 544 U.S. 269 (2005). Under Rhines, a
district court may stay habeas proceedings to permit
exhaustion of a claim upon satisfaction of three elements:
1. "Good cause" exists for the failure to exhaust
2. The unexhausted claim is "potentially
3. The petitioner did not engage in "abusive litigation
tactics" or intentionally delay the proceedings.
Rhines, 544 U.S. at 277-78. The district court
declined to stay the claim involving extraneous influence on
the jury, concluding that this claim lacked potential merit.
But the district court granted the stay on the claim
involving the judge's comment to the jury, concluding
that Mr. Kell had satisfied the three elements for a
Rhines stay. For the remaining habeas claims,
however, the district court stated that the proceedings would
continue without interruption.
Utah appeals the order granting a limited stay.
appeal, Utah argues that the federal district court erred in
granting the stay because
• the court used the wrong test for "good
cause" and misapplied that test,
• the new habeas claim lacks potential merit based on
timeliness, the existence of a procedural default, and the
absence of a constitutional violation, and
• Mr. Kell was dilatory by waiting over three years to
assert the new habeas claim and over eight years to seek a
stay based on this claim.
We lack jurisdiction to consider interlocutory appeals from
consider these arguments only if Utah establishes appellate
jurisdiction. See EEOC v. PJ Utah, L.L.C., 822 F.3d
536, 542 n.7 (10th Cir. 2016) ("[T]he appellant . . .
bears the burden to establish appellate jurisdiction.").
We typically acquire jurisdiction through the district
court's entry of a final decision. 28 U.S.C. § 1291.
But a stay does not ordinarily constitute a final decision.
See Crystal Clear Commc'ns, Inc. v. Sw. Bell
Tel. Co., 415 F.3d 1171, 1176 (10th Cir. 2005) ("If
a stay merely delays litigation and does not effectively
terminate proceedings, it is not considered a final
argues that we nonetheless have jurisdiction under the
collateral-order doctrine. This doctrine would apply only if
the district court's decision
• conclusively decided the disputed question,
• resolved an important issue separate from the merits,
• could not be effectively reviewed on direct appeal.
Van Cauwenberghe v. Biard, 486 U.S. 517, 522 (1988).
The failure to satisfy any of the three elements would
prevent us from applying the collateral-order doctrine.
See Stubblefield v. Windsor Capital Grp., 74 F.3d
990, 997 (10th Cir. 1996) (stating that the collateral-order
doctrine "does not apply unless each of the three
requirements are met").
element is considered stringent. E.g., Flanagan
v. United States, 465 U.S. 259, 270 (1984). And
"[i]n case after case in year after year, the Supreme
Court has issued increasingly emphatic instructions that the
class of cases capable of satisfying this 'stringent'
test should be understood as 'small,'
'modest,' and 'narrow.'" United
States v. Wampler, 624 F.3d 1330, 1334 (10th Cir. 2010)
(Gorsuch, J.). Utah bears the burden on each element of this
"stringent" test. See Los Lobos Renewable
Power, L.L.C. v. Americulture, Inc., 885 F.3d 659, 664
(10th Cir. 2018) (stating that the "party asserting
jurisdiction under the collateral order doctrine" bears
the burden on each element).
assume, for the sake of argument, that an order issuing a
Rhines stay conclusively determines the disputed
question. But the grant of a Rhines stay involves
issues that are intertwined with the merits and reviewable on
direct appeal. We thus lack jurisdiction under the
collateral-order doctrine. See Crystal Clear
Commc'ns, Inc. v. Sw. Bell Tel. Co., 415 F.3d 1171,
1178 (10th Cir. 2005) (noting that the collateral-order
doctrine does not support appellate jurisdiction if any
element is unsatisfied).
The grant of a Rhines stay is not completely
separate from the merits.
collateral-order doctrine applies only when the order
involves an important issue that is not intertwined with the
merits. Coopers & Lybrand v. Livesay,
437 U.S. 463, 469 (1978). For this element, Utah must show
that the issues bearing on the appropriateness of a
Rhines stay are "completely separate" from
the merits. E.g., Cunningham v. Hamilton Cty., Ohio,
527 U.S. 198, 205 (1999). Utah has not made this showing.
Avoidance of Piecemeal Litigation
requirement of complete separation is designed to prevent
piecemeal appellate review. Van Cauwenberghe v.
Biard, 486 U.S. 517, 527 (1988). Given this purpose, the
collateral-order doctrine would ordinarily apply only if an
appellate court would probably not need to consider the
merits a second time.
interlocutory appeals of Rhines stays would often
require federal appellate courts to consider the merits at
• once in the interlocutory appeal (when the respondent
argues that a Rhines stay is improper because the
petitioner's unexhausted claim lacks potential merit) and
• again after entry of the judgment (when the parties
disagree over the claim's actual merit).
the district court enters multiple Rhines stays,
could face three or more appeals with overlapping issues.
possibility is apparent here. For example, consider
Utah's argument that the district court's jury
instruction was correct. This argument involves a classic
issue on the merits. See Gillette v. Prosper, 858
F.3d 833, 839 (3d Cir. 2017) (concluding that the order being
appealed was "closely related" to the merits
because "both concern[ed] alleged constitutional
violations" and involved potential release from prison).
If we were to recognize appellate jurisdiction at this stage
and Mr. Kell were to obtain habeas relief, we would decide
the "potential merit" of Mr. Kell's new claim
now and the claim's "actual merit" after the
entry of a final judgment. It is hard to imagine a better
example of piecemeal litigation- precisely what the Supreme
Court has tried to avoid by limiting the collateral-order
doctrine to classes of orders involving "complete
separation" from the merits.
Even where a district court issues multiple Rhines
stays, each Rhines stay concerns different claims by
a petitioner and therefore different issues. To illustrate, a
district court issues a Rhines stay on claim
x, allowing the petitioner to exhaust the claim in
state court. After the petitioner exhausts claim x
in state court and returns to federal court, the district
court is not going to issue another Rhines stay for
the purpose of allowing the petitioner to exhaust claim x. If
there is a second Rhines stay, it would be issued for the
petitioner to exhaust claim y. If both of these Rhines stays
are appealed, and then the final judgment is appealed, the
"same issues" would not be before this Court three
or more times.
at 16-17 n.5 (emphasis in original).
respectfully think that the dissent has misunderstood us.
When reviewing a Rhines stay, we consider the
"potential merit" of the unexhausted claim. For
example, let's consider Utah's argument that the
district court erred in granting a stay because the
unexhausted habeas claim lacks potential merit. If we have
appellate jurisdiction under the collateral-order doctrine,
we would consider whether the district court acted within its
discretion in treating the unexhausted claim as potentially
assume, for the sake of argument, that we were to uphold this
determination. When the habeas case ends in district court,
the parties could appeal the district court's ultimate
determination of the claim's actual merit. See
Alexander v. U.S. Parole Comm'n, 514 F.3d 1083, 1087
(10th Cir. 2008) (stating that a conditional writ of habeas
corpus is final, creating appellate jurisdiction); Burton
v. Johnson, 975 F.2d 690, 693-94 (10th Cir. 1992)
(stating that a conditional writ of habeas corpus was an
appealable final judgment).
same would be true for any case involving a Rhines
stay. So in a case with multiple Rhines stays and
multiple interlocutory appeals, we could face the same issues
after a final judgment (even if the interlocutory appeals
individually involved different issues).
The Significance of the Relationship Between the
Rhines Factor of "Potential Merit" and the
Actual Merits of Mr. Kell's New Claim
"potential merit" is essential for Rhines
stays, interlocutory review would frequently require us to
consider the potential merit of the underlying habeas claims.
And "potential merit" is obviously not
"completely separate" from the actual merits. The
dissent agrees, stating that the Rhines issue
("potential merit") "undoubtedly overlaps with
the merits." Dissent at 16.
Application of the Test of "Complete
apply the element of complete separation, we must evaluate
the pertinent issue based on the entire class of orders
(Rhines stays) rather than the particular arguments
in this appeal. United States v. Bolden, 353 F.3d
870, 876 (10th Cir. 2003). We thus consider whether the issues
underlying a Rhines stay are, "as a
whole," completely separate from the merits.
Supreme Court has repeatedly cautioned that the
collateral-order doctrine requires "complete
separation" from the merits. E.g.,
Microsoft Corp. v. Baker, 137 S.Ct. 1702, 1708 n.3
(2017); Will v. Hallock, 546 U.S. 345, 349 (2006);
Sell v. United States, 539 U.S. 166, 176 (2003);
Cunningham v. Hamilton Cty., Ohio, 527 U.S. 198, 205
(1999); Quackenbush v. Allstate Ins. Co., 517 U.S.
706, 712 (1996); Johnson v. Jones, 515 U.S. 304,
310-11 (1995); Digital Equip. Corp. v. Desktop Direct,
Inc., 511 U.S. 863, 867 (1994); Richardson-Merrell,
Inc. v. Koller, 472 U.S. 424, 431 (1985); Coopers
& Lybrand v. Livesay, 437 U.S. 463, 468-69 (1978).
Utah's Focus on its Own Arguments
(Rather than the Class of Orders)
also points to its arguments involving good cause, insisting
that they do not relate to the merits. And the dissent relies
on Utah's arguments involving timeliness, dilatoriness,
and procedural default. The focus of Utah and the dissent on
Utah's particular appeal points is misguided, as it
• the overlap between Utah's appellate arguments and
the merits and
• the need to consider separation categorically based on
the class of orders rather than the particular issues invoked
by the appellant.
Utah's Arguments on Good Cause
tries to justify application of the collateral-order doctrine
based on the district court's alleged misidentification
and misapplication of the test for good cause. We reject this
Misidentifying the Test for Good Cause
identifies the definition of good cause as an
"important" issue. To determine an issue's
importance under the collateral-order doctrine, we consider
• whether the issue is "important in a
jurisprudential sense" and
• whether the interests that "'would
potentially go unprotected without immediate appellate
review are significant relative to efficiency interests
sought to be advanced by adherence to the final judgment
definition of good cause might be considered
jurisprudentially important now because we lack a precedent
squarely defining the test for good cause under
Rhines. Of course, if we were to undertake
interlocutory review and define the test, that definition
would settle the issue, rendering it jurisprudentially
unimportant in the future. See 15A Charles Alan
Wright, Arthur R. Miller & Edward H. Cooper, Federal
Practice & Procedure: Jurisdiction & Related
Matters § 3911.5, at 438 (2d ed. 1992)
("Implementation of a serious and unsettled question
requirement can easily lead to a situation in which a
particular question is suitable for collateral order appeal
the first time it is presented, but not thereafter.").
Utah has not shown an urgency to immediately define the
standard for good cause under Rhines. Indeed, Utah
has offered many alternative arguments for reversal, such as
expiration of the limitations period, procedural default,
misapplication of the district court's own test for good
cause, dilatoriness, and lack of potential merit. Given
Utah's alternative arguments, we may not even need to
decide the test for good cause if we were to reverse the
grant of a Rhines stay.
dissent nonetheless insists that the test for good cause is
important because a court in "literally every grant of a
Rhines stay, not just this particular grant of a
Rhines stay, must decide what the appropriate
standard for determining 'good cause' is."
Dissent at 14. We see the issue ...