Moore v. Mote, 03-3213.

• Decision Date: 17 May 2004
• Docket Number: No. 03-3213.,03-3213.
• Citation: 368 F.3d 754
• Parties: Allan O. MOORE, Sr., Petitioner-Appellant, v. Stephen MOTE, Respondent-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 754

368 F.3d 754

Allan O. MOORE, Sr., Petitioner-Appellant, v. Stephen MOTE, Respondent-Appellee.

No. 03-3213.

United States Court of Appeals, Seventh Circuit.

Submitted November 14, 2003.

Decided May 17, 2004.

Rehearing and Rehearing En Banc Denied June 15, 2004.

Allan O. Moore, Sr. (submitted), Menard, IL, pro se.

Linda Woloshin, Office of the Attorney General, Chicago, IL, for Respondent-Appellee.

Before BAUER, RIPPLE and EVANS, Circuit Judges.

TERENCE T. EVANS, Circuit Judge.

Allan Moore, Sr. filed a petition for a writ of habeas corpus, see 28 U.S.C. § 2254, seeking federal review of his conviction for possession with intent to distribute cocaine. The district court concluded that Moore's petition presents claims that are pending before a state post-conviction court. Rather than entering judgment against Moore, the court dismissed the petition with leave to refile the case once Moore exhausts his state court remedies. Moore filed a notice of appeal from the dismissal, which we construe as an application for a certificate of appealability. See 28 U.S.C. § 2253(c). We dismiss the action for lack of jurisdiction because the district court order dismissing Moore's case is not a final judgment.

Generally, this court has jurisdiction only to review final judgments, 28 U.S.C. § 1291. The district court's order dismissing the case without prejudice is not final because it explicitly contemplates the court's continuing involvement in the case: "It must be emphasized that this dismissal is without prejudice and Petitioner will be entitled to renew his § 2254 petition upon completion of review of his claims by the Illinois state court system." R. 8, Or. of 8/6/03. See Cunningham v. Hamilton Cy., Oh., 527 U.S. 198, 204, 119 S.Ct. 1915, 144 L.Ed.2d 184 (1999) ("[A] decision is not final, ordinarily, unless it ends the litigation on the merits and leaves nothing for the court to do but execute the judgment.") (quotation omitted); see also TDK Elecs. Corp. v. Draiman, 321 F.3d 677, 678 (7th Cir.2003) (The "judge made it clear that he has washed his hands of the case, the resolution is as final as it can be. Nothing more ever will happen in the district court.").

This court has held that there are "special circumstances" under which the dismissal of a case without prejudice may constitute a final appealable order. See Larkin v. Galloway, 266 F.3d 718, 721 (7th Cir.2001). Special circumstances are present when it is clear that it is impossible for the plaintiff to amend the filing to remedy the problem that prompted the dismissal. See Furnace v. Bd. of Tr. of S. Ill. Univ., 218 F.3d 666, 669 (7th Cir.2000). No special circumstances exist here because Moore can easily return to state court, conclude his pending action, and then submit the state court decision (either confirming or disproving the district court's belief that state remedies remain available to Moore) to the district court. Cf. Strong v. David, 297 F.3d 646, 648 (7th Cir.2002) (district court order is final because petitioner had exhausted all administrative remedies and there were no further state remedies available).

Additionally, the district court order dismissing Moore's petition is not reviewable under the collateral order doctrine, which provides an appellate court with jurisdiction over non-final orders that (1) conclusively determine a disputed question, (2) resolve an issue completely separate from the merits of the actions, and (3) are effectively unreviewable on appeal from a final judgment. Wingerter v. Chester Quarry Co., 185 F.3d 657, 662-63 (7th Cir.1998). As stated, the district court order is not conclusive; Moore can return to state court, conclude the pending post-conviction proceedings, and then submit the state court decision to the district court.

Likewise, the district court's exhaustion determination will be reviewable on appeal from a final judgment. This question has not previously arisen in the habeas corpus context because, pre-AEDPA, there were no time limits on filing petitions. Thus, when a petitioner failed to exhaust, a district court could dismiss without prejudice without harming the petitioner, and this court would review the exhaustion determination. Under these circumstances the exhaustion determination really was unreviewable on appeal from a final judgment because the final judgment would come in an entirely different legal action. With the advent of AEDPA's statute of limitations, a dismissal, even without prejudice, can harm a petitioner and, thus, Newell v. Hanks, 283 F.3d 827 (7thCir.2002), instructs district courts to stay actions rather than dismiss them. Accordingly, instead of filing new law suits, petitioners simply reopen their first federal collateral attack. From a petitioner's perspective, this procedural distinction probably appears meaningless, but legally the distinction is significant: the exhaustion determination now can in fact be addressed on appeal from a final judgment because it is part of the same legal action. See Davis v. Streekstra, 227 F.3d 759, 762 (...