Grace v. Vannoy

• Decision Date: 20 June 2016
• Docket Number: No. 15-30064,15-30064
• Citation: 826 F.3d 813
• Parties: Jessie J. Grace, III, Petitioner–Appellee v. Darrel Vannoy, Warden, Louisiana State Penitentiary, Respondent–Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

826 F.3d 813

Jessie J. Grace, III, Petitioner–Appellee

v.Darrel Vannoy, Warden, Louisiana State Penitentiary, Respondent–Appellant.

No. 15-30064

United States Court of Appeals, Fifth Circuit.

FILED June 20, 2016

Christopher Albert Aberle, Mandeville, LA, for Petitioner–Appellee.

Terri Russo Lacy, Esq., Colin Andrew Clark, Esq., Assistant Attorneys General, Louisiana Department of Justice, Criminal Division, James Trey Phillips, Louisiana Department of Justice, Litigation Division, Baton Rouge, LA, for Respondent–Appellant.

Before HIGGINBOTHAM, DENNIS, and CLEMENT, Circuit Judges.

EDITH BROWN CLEMENT

, Circuit Judge:

Jessie Grace filed a habeas petition in federal court, challenging his state-court conviction for second-degree murder. During the federal habeas proceedings, the district court discovered that Grace potentially had additional habeas claims against the State of Louisiana. Because dismissing Grace's petition to allow him to exhaust those new claims in state court would cause his already-exhausted claims to become time-barred, the district court entered a stay pursuant to Rhines v. Weber , 544 U.S. 269, 125 S.Ct. 1528, 161 L.Ed.2d 440 (2005)

, in which the Supreme Court addressed this very dilemma. The State appeals the district court's order granting the stay, but we DISMISS the appeal for lack of appellate jurisdiction.

I.

Grace was convicted in 1994 of second-degree murder. He has been pursuing post-conviction relief ever since. After exhausting several claims in Louisiana state court, he filed a habeas petition in federal court. The district court held an evidentiary hearing, during which the district court reviewed in camera the district attorney's file on Grace. On review of the file, the district court concluded that the grand jury testimony revealed potential habeas claims that were previously unavailable to—and were thus unexhausted by—Grace, who had not previously had access to that testimony. Accordingly, the district court recognized that if Grace were to amend his petition to add his unexhausted claims, it would be a “mixed” petition (containing both exhausted and unexhausted claims). Dismissing his petition while he exhausted his new claims in state court would cause his previously exhausted claims to become time-barred, so the district court stayed his petition sua sponte pursuant to Rhines v. Weber , 544 U.S. 269, 125 S.Ct. 1528, 161 L.Ed.2d 440 (2005)

. The State appealed the stay.

Grace moved to dismiss the appeal for lack of jurisdiction. A prior panel of this court granted the motion and dismissed the appeal, holding that the district court's order granting the stay was not an appealable collateral order. In the prior panel's view, the order was not an “important questio[n],” nor would it be “effectively unreviewable on appeal from the final judgment.” Grace v. Cain , 624 Fed.Appx. 169, 171–72 (5th Cir. 2015)

(per curiam) (unpublished), reh'g granted, opinion withdrawn , No. 15-30064, 2016 WL 104339 (5th Cir. Jan. 7, 2016) (per curiam). The prior panel also rejected the State's petition for mandamus. Id. at 170 n. 1.

The State filed a petition for rehearing en banc, and this court requested a response from Grace. On reconsideration, the prior panel treated the petition for rehearing en banc as a petition for panel rehearing, granted that motion, and withdrew its order dismissing the appeal. Grace , 2016 WL 104339, at *1

. As a result, the case was sent to this panel and the motion to dismiss was carried with the case. Id.

II.

Grace argues that we lack appellate jurisdiction because the district court's stay order is neither an appealable final order nor an appealable collateral order. The State primarily contends that the order is an appealable collateral order. Although courts of appeals generally have jurisdiction only over final orders, a “small class” of collateral orders are “too important to be denied immediate review.”

Mo hawk Indus., Inc. v. Carpenter , 558 U.S. 100, 106, 116, 130 S.Ct. 599, 175 L.Ed.2d 458 (2009)

. That “small category includes only decisions that are conclusive, that resolve important questions separate from the merits, and that are effectively unreviewable on appeal from the final judgment in the underlying action.” Id. at 106, 130 S.Ct. 599. All three requirements must be satisfied for appellate jurisdiction to exist. Id. at 107, 130 S.Ct. 599.

We assume, without deciding, that the question here has been conclusively determined and that it is separate from the merits. But it is not sufficiently important or effectively unreviewable under the collateral-order doctrine. The sole issue presented in this appeal is whether the district court abused its discretion in granting the stay—whether the stay should have been granted is the only question “resolved” by the district court that the State challenges. Thus, the inquiry under the collateral-order doctrine is whether that question is an “important questio[n] separate from the merits ... that [is] effectively unreviewable on appeal from the final judgment.” Mohawk , 558 U.S. at 107, 130 S.Ct. 599

. Rhines v. Weber, standing alone, did not affect the importance of that question. The issue is not whether the district court can stay a habeas petition—all agree that the district court can do so under Rhines —it is whether the district court abused its discretion in doing so here.

The Supreme Court has explained that, under the collateral-order doctrine, importance and unreviewability are inseparable inquiries. See Mohawk , 558 U.S. at 107, 130 S.Ct. 599

(explaining that requirement of “sufficiently strong” justification for immediate appeal “finds expression” in importance and unreviewability conditions). Bare unreviewability does not suffice; “the decisive consideration is whether delaying review until the entry of final judgment ‘would imperil a substantial public interest’ or ‘some particular value of a high order.’ ” Id. (noting that the unreviewability inquiry “simply cannot be answered without a judgment about the value of the interests that would be lost” without immediate appeal); cf. id. (rejecting argument that order requiring disclosure of purportedly privileged material was appealable collateral order). So even if a ruling “may burden litigants in ways that are only imperfectly reparable by appellate reversal of a final district court judgment,” that alone “has never sufficed.” Id. (internal quotation marks omitted). Indeed, “the chance that the litigation at hand might be speeded, or a ‘particular injustic[e]’ averted,” is insufficient. Id. To sum up, whether a question is unreviewable for purposes of the collateral-order doctrine depends on a value judgment about what is lost unless the party is permitted to immediately appeal.

“Absent a Moses Cone

situation, stay orders rarely satisfy [the collateral-order] requirements, and therefore, are usually not reviewable as collateral orders.” Kershaw v. Shalala , 9 F.3d 11, 14 (5th Cir. 1993). This case does not present a Moses Cone situation, and that fact is also critical to understanding why Johnson v. State of Texas , 878 F.2d 904 (5th Cir. 1989) —on which the State heavily relies—is distinguishable.

In Moses H. Cone Memorial Hospital v. Mercury Construction Corp.

, one party to a construction dispute, Mercury, wanted to arbitrate and the other, Moses Cone, did not. 460 U.S. 1, 7–8, 103 S.Ct. 927, 74 L.Ed.2d 765 (1983). Moses Cone sought a declaratory judgment and an injunction in state court to block arbitration, while Mercury filed an action in federal court to compel arbitration. Id. The issue in both the federal and state cases was identical: whether the parties had to arbitrate. Id. The federal district court stayed the case pending the state court's resolution of that issue, so Mercury appealed. Id.

The Supreme Court held that the district court's stay order was appealable under the collateral-order doctrine. Id. at 13, 103 S.Ct. 927

. The Court explained that the district court's stay order “would be entirely unreviewable if not appealed now,” because “[o]nce the state court decided the issue of arbitrability, the federal court would be bound to honor that determination as res judicata.” Id. at 12, 103 S.Ct. 927. Put another way, “the res judicata effect of the state proceedings meant that the denial of an immediate appeal would end the federal case. There would be no more merits over which to litigate.” EEOC v. Neches Butane Prods. Co. , 704 F.2d 144, 151 (5th Cir. 1983) (discussing Moses Cone ). Not only would the propriety of the stay be unreviewable, but “[t]he immediate prospect of an adverse and final ruling on the merits clearly presented the most extreme example of the kind of important and irreparable loss that would justify an otherwise impermissible interlocutory appeal....” Id. at 150 ; see

Kershaw , 9 F.3d at 14 n. 4 (noting that, as with other abstention doctrines, result of stay order in Moses Cone was that “the resolution of the state case necessarily terminate [d] the federal case”).¹

This case does not present a Moses Cone

situation. Here, the district court stayed proceedings to permit Grace to exhaust his claims in state court before returning to federal court. Unlike in Moses Cone, the issues before the federal and state courts are not identical. Resolution of the state case will not “necessarily terminat[e] the federal case”; the state case does not present “the immediate prospect of an adverse and final ruling on the merits” of Grace's federal habeas petition; and it will not have any res judicata effect. Kershaw , 9 F.3d at 14 n. 4 ; see

Neches Butane , 704 F.2d at 150, 151. And unlike in Moses Cone, “the practical effect” of the district court's order is not the same as a dismissal—once Grace exhausts his claims in state court (assuming he does not obtain post-conviction relief), he will return to federal court and the stay will be lifted.² 460 U.S. at 13, 103 S.Ct. 927.

Whether the state court or the federal court will have the...