Kell v. Benzon
Decision Date | 28 May 2019 |
Docket Number | No. 17-4191,17-4191 |
Parties | Troy Michael KELL, Petitioner-Appellee, v. Larry BENZON, Warden Utah State Prison, Respondent-Appellant. |
Court | U.S. Court of Appeals — Tenth Circuit |
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.
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.
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:
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 continue without interruption.1
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) (). 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) ().
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) ( ).
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) ( ).
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) ( ).
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.
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:
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) ( ). 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.
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