Christy v. Horn

• Decision Date: 05 June 1997
• Docket Number: No. 96-9004,96-9004
• Citation: 115 F.3d 201
• Parties: Lawrence Duane CHRISTY, Appellee, v. Martin F. HORN, Commissioner, Pennsylvania Department of Corrections; James S. Price, Superintendent, State Correctional Institution at Green; Joseph Mazurkiewicz, Superintendent, State Correctional Institution at Rockview, Appellants.
• Court: U.S. Court of Appeals — Third Circuit

Page 201

115 F.3d 201

Lawrence Duane CHRISTY, Appellee, v. Martin F. HORN, Commissioner, Pennsylvania Department of

Corrections; James S. Price, Superintendent, State

Correctional Institution at Green; Joseph Mazurkiewicz,

Superintendent, State Correctional Institution at Rockview,

Appellants.

No. 96-9004.

United States Court of Appeals, Third Circuit.

Argued March 21, 1997.

Decided June 5, 1997.

Christian A. Fisanik (Argued), Chief Deputy, Appellate Div., Office of the Cambria County District Attorney, Ebensburg, PA for Appellants.

John Unkovic (Argued), W. Thomas McGough Jr., Reed Smith Shaw & McClay, Pittsburgh, PA, for Appellee.

David Wycoff, Defender Association of Philadelphia--Federal Court Division, Philadelphia, PA, for Amicus Curiae, Defender Association of Philadelphia--Federal Court Div.

Robert Brett Dunham, Philadelphia, PA, Billy H. Nolas, Philadelphia, PA, for Amicus Curiae, Center for Legal Education, Advocacy & Defense Assistance.

Before: BECKER, NYGAARD and ROTH, Circuit Judges.

OPINION OF THE COURT

NYGAARD, Circuit Judge.

The district court granted the Appellee, Lawrence Duane Christy, a stay of execution and held his federal habeas petition in abeyance pending exhaustion of a particular issue in state court. Arguing that the district court did not have the authority to hold the Appellee's habeas petition in abeyance, the Commonwealth of Pennsylvania has appealed.

I.

On February 15, 1996, the Governor of Pennsylvania signed a warrant scheduling the Appellee's execution for March 12, 1996. Christy asked the district court for permission to proceed in forma pauperis, for counsel to be appointed to assist him in preparing a habeas petition and for a stay of his scheduled execution. On February 21, 1996, the district court appointed new counsel and gave them ninety days to file a habeas petition on Christy's behalf. The district court also stayed Christy's execution date. See 21 U.S.C. § 848(q)(4)(B); 28 U.S.C. § 2251; McFarland v. Scott, 512 U.S. 849, 114 S.Ct. 2568, 129 L.Ed.2d 666 (1994). Counsel filed Christy's habeas petition on April 17, 1996.

The day before Christy's petition was filed, the United States Supreme Court announced its decision in Cooper v. Oklahoma, --- U.S. ----, 116 S.Ct. 1373, 134 L.Ed.2d 498 (1996). In Cooper, the Supreme Court held that a state violates a defendant's right to due process if it requires the defendant to bear the burden of establishing by clear and convincing evidence his incompetency to stand trial. Id. Due no doubt to the diligence of counsel, Christy's habeas petition included a claim alleging that the Commonwealth of Pennsylvania violated his constitutional rights under Cooper.

The Commonwealth of Pennsylvania answered Christy's petition on July 16, 1996, and asserted that Christy had failed to exhaust his state court remedies for the purported Cooper error. On August 9, 1996, Christy asked the district court to hold his habeas petition in abeyance while he returned to state court to exhaust his Cooper claim. Over the opposition of the Commonwealth, the district court granted the abeyance motion and also kept the stay of execution in effect while Christy proceeded in state court. The Commonwealth now appeals. This case presents a number of important questions, not the least of which is whether we have jurisdiction to review this order in the first place.

II.

28 U.S.C. § 1291 usually limits our appellate jurisdiction to reviewing final decisions of the district courts. Martin v. Brown, 63 F.3d 1252, 1256 (3d Cir.1995). A judgment is final only when there is a "decision by the district court that ends the litigation on the merits and leaves nothing for the court to do but execute the judgment." Bryant v. Sylvester, 57 F.3d 308, 311 (3d Cir.1995); see also Isidor Paiewonsky and Assoc. v. Sharp Properties Inc., 998 F.2d 145, 150 (3d Cir.1993). In other words, a final order is one which leaves the district court with "nothing to do." See Farmer v. McDaniel, 98 F.3d 1548, 1552 (9th Cir.1996). The dispositive inquiry is whether the order appealed from finally resolved the case below. See Presbytery of N.J. IOrthodox Presbyterian Church v. Florio, 40 F.3d 1454, 1461 (3d Cir.1994).

The order appealed from here is not a final order. The district court ordered that "adjudication of the petition for writ of habeas corpus shall be held in abeyance pending his exhaustion of state court remedies" and that "the stay of execution entered by this court on February 21, 1996 be and hereby is continued in effect until further order of this court." Clearly, this order does not resolve the habeas case. It is not dispositive of any issue raised in Christy's habeas petition. The district court expressly indicates the transient nature of the order by indicating it will only remain in effect until "further order of this court."

The Commonwealth tacitly agrees that this is not a final order by arguing that we have jurisdiction pursuant to the "collateral order" doctrine first announced in Cohen v. Beneficial Indus. Loan Co., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949). In Cohen, the Supreme Court held that a "small class" of collateral orders are final and appealable under 28 U.S.C. § 1291 even though they do not terminate the underlying litigation. 337 U.S. at 546, 69 S.Ct. at 1225-26. The case law on the collateral order doctrine is extensive and its requirements are clear. We can review a collateral order that (1) finally resolves a disputed question; (2) raises an important issue distinct from the merits of the case; and (3) is effectively unreviewable on appeal from a final judgment. Praxis Properties v. Colonial Sav. Bank SLA, 947 F.2d 49, 54 (3d Cir.1991); see also In re Ford Motor Co., 110 F.3d 954 (3d Cir.1997). Failure to meet any of these requirements precludes a finding of appellate jurisdiction. United States v. Bertoli, 994 F.2d 1002, 1012 (3d Cir.1993).

The Supreme Court has repeatedly referred to the collateral order doctrine as a "narrow exception" to the final judgment rule. See, e.g., Richardson-Merrell Inc. v. Koller, 472 U.S. 424, 430, 105 S.Ct. 2757, 2760-61, 86 L.Ed.2d 340 (1985). We have followed this admonition and construed the doctrine narrowly "lest the exception swallow up the salutary general rule that only final orders be appealed." Yakowicz v. Pennsylvania, 683 F.2d 778 n.10 (3d Cir.1982); see also Transtech Indus., Inc. v. A & Z Septic Clean, 5 F.3d 51 (3d Cir.1993) ("We have followed the Supreme Court's admonition and have consistently construed the Cohen exception narrowly rather than expansively.").

Moreover, strict construction of the collateral order doctrine is designed to further the longstanding congressional policy against piecemeal appeals which underlies the final judgment rule. See Lusardi v. Xerox Corp., 747 F.2d 174, 177 (3d Cir.1984). ¹ To guard against the temptation to expand the doctrine's reach, the Supreme Court has instructed that the question of whether or not an order is immediately appealable should be decided for the entire category to which the order in question belongs. Digital Equip. Corp. v. Desktop Direct Inc., 511 U.S. 863, 865, 114 S.Ct. 1992, 1994, 128 L.Ed.2d 842 (1994). Therefore, we now decide the question of whether an order which holds a habeas appeal in abeyance and stays an execution is immediately appealable.

A. Conclusiveness

To pass the first prong of the collateral order doctrine test, the order appealed from must "finally resolve a disputed question." Praxis Properties, 947 F.2d at 54. This inquiry has been labeled the "conclusiveness prong." Id. In determining whether an order "conclusively determines the disputed questions," the Supreme Court has contrasted two types of orders: those which are "inherently tentative" and those which are "technically amendable, but made with the expectation that they will be the final word on the subject addressed." See Gulfstream Aerospace v. Mayacamas Corp., 485 U.S. 271, 277, 108 S.Ct. 1133, 1137, 99 L.Ed.2d 296 (1988).

Although we are aware of no case that bears directly on the issue whether an order holding a habeas petition in abeyance is conclusive for purposes of the collateral order doctrine, we draw instruction from two Supreme Court cases addressing the question of whether an order granting a Colorado River stay ² is conclusive. In Moses H. Cone Mem'l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 103 S.Ct. 927, 74 L.Ed.2d 765 (1983), the Supreme Court held that a district court order granting a Colorado River stay was expected to be the final word on the subject and thus satisfied the "conclusiveness" prong of Cohen. The Court reasoned that an order granting such a stay necessarily contemplated that the federal court will have nothing further to do in resolution of any substantive part of the case because a district court can invoke Colorado River only if it first determines that the parallel state proceeding will be an adequate vehicle for the complete and prompt resolution of the issues between the parties. 460 U.S. at 28, 103 S.Ct. at 943. Thus, the Supreme Court concluded that such an order meant that the district court had no reason to reconsider its decision.

In contrast to the Cone decision, the Supreme Court has held that an order denying a Colorado River stay is "inherently tentative." In Gulfstream Aerospace, the Court explained that a district court usually will revisit and reassess an order denying a Colorado River stay in light of subsequent events that occur during the course of the litigation. 485 U.S. at 278, 108 S.Ct. at 1137-38 (citations omitted). If an order is not entered "with the expectation that it will be the final word on the subject addressed," it is not immediately appealable. Id. We believe that the order appealed from here is more akin to type of order appealed from in the Cone case. The reasoning of Cone and Gulfstream Aerospace is helpful here, at least by analogy. The determination in those...