Kell v. Benzon, No. 17-4191

• Court: U.S. Court of Appeals — Tenth Circuit
• Writing for the Court: BACHARACH, Circuit Judge.
• Citation: 925 F.3d 448
• Decision Date: 28 May 2019
• Docket Number: No. 17-4191
• Parties: Troy Michael KELL, Petitioner-Appellee, v. Larry BENZON, Warden Utah State Prison, Respondent-Appellant.

925 F.3d 448

Troy Michael KELL, Petitioner-Appellee,
v.
Larry BENZON, Warden Utah State Prison, Respondent-Appellant.

No. 17-4191

United States Court of Appeals, Tenth Circuit.

FILED May 28, 2019

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.

BACHARACH, Circuit Judge.

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.

925 F.3d 451

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, 102 S.Ct. 1198, 71 L.Ed.2d 379 (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, 125 S.Ct. 1528, 161 L.Ed.2d 440 (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, 125 S.Ct. 1528. 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

925 F.3d 452

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, 108 S.Ct. 1945, 100 L.Ed.2d 517 (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, 104 S.Ct. 1051, 79 L.Ed.2d 288 (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

925 F.3d 453

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, 98 S.Ct. 2454, 57 L.Ed.2d 351 (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, 119 S.Ct. 1915, 144 L.Ed.2d 184 (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, 108 S.Ct. 1945, 100 L.Ed.2d 517 (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

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