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Kell v. Benzon

United States Court of Appeals, Tenth Circuit

May 28, 2019

TROY MICHAEL KELL, Petitioner - Appellee,
LARRY BENZON, Warden Utah State Prison, Respondent - Appellant.

          Appeal from the United States District Court for the District of Utah (D.C. No. 2:07-CV-00359-CW)

          Andrew 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.

          Before BACHARACH, BALDOCK, and PHILLIPS, Circuit Judges.


         This is an interlocutory appeal from an order staying a habeas proceeding. We lack jurisdiction and dismiss the appeal.

         Mr. 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.

         In the 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.

         1. Mr. Kell timely files a habeas petition.

         Mr. 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.

         2. The district court stays the habeas case to allow Mr. Kell to exhaust a new claim.

         In 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.

         To 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 the claim.
2. The unexhausted claim is "potentially meritorious."
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.[1]

         3. Utah appeals the order granting a limited stay.

         In this 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.

         4. We lack jurisdiction to consider interlocutory appeals from Rhines stays.

         We can 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 decision.").

         Utah 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, and
• 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").

         Each 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).

         We 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).

         A. The grant of a Rhines stay is not completely separate from the merits.

         The 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.

         1. Avoidance of Piecemeal Litigation

         The 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.[2]

         But interlocutory appeals of Rhines stays would often require federal appellate courts to consider the merits at least twice:

• 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).

         And if the district court enters multiple Rhines stays, [3] we could face three or more appeals with overlapping issues.

         This 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.

         The dissent disagrees:

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.

         Dissent at 16-17 n.5 (emphasis in original).

         We 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 meritorious.

         Let's 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).

         The 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).

         2. The Significance of the Relationship Between the Rhines Factor of "Potential Merit" and the Actual Merits of Mr. Kell's New Claim

         Because "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.[4]

         3. Application of the Test of "Complete Separation"

         To 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).[5] We thus consider whether the issues underlying a Rhines stay are, "as a whole," completely separate from the merits. Id.

         The 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).

         4. Utah's Focus on its Own Arguments (Rather than the Class of Orders)

         Utah 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 disregards

• 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.

         a. Utah's Arguments on Good Cause

         Utah 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 effort.

         i. Misidentifying the Test for Good Cause

         Utah 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"[6] 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 rule.'"[7]

         The 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.").

         And 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.

         The 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 ...

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