THIS IS A CAPITAL CASE

No. 14-2677
UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT
_________________________________________________________________
JOHN MIDDLETON,
Petitioner-Appellee,
v.
DON ROPER
Respondent-Appellant.
__________________________________________________________________
Appeal from the United States District Court
for the Eastern District of Missouri
The Honorable
Catherine D. Perry
_________________________________________________________________
PETITIONER-APPELLEES MOTION
TO DISMISS FOR LACK OF JURISDICTION
__________________________________________________________________

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Petitioner-Appellee John Middleton, by and through his attorneys of record and
pursuant to Rule 27 of the Federal Rules of Appellate Procedure, hereby moves that the
Court dismiss this appeal for lack of jurisdiction. The Respondent -Appellant appeals the
district courts order staying the capital habeas proceedings and holding them in abeyance
pending Appellee John Middletons presenting his unexhausted Ford/Panetti claim to the
Missouri state courts. The Court does not have jurisdiction because the order neither is a
final order nor satisfies the collateral order doctrine test.
I. BACKGROUND
A federal appellate courts jurisdiction is predominantly limited to appeals from final
decisions of the district courts of the United States. 28 U.S.C. 1291.
1
A decision is
final if it 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). The order at
issue in the instant case is not final. It merely grants Petitioner leave to exhaust his
Ford/Panetti claim in state court. It does not end the litigation on the merits and therefore
may not be appealed as a final decision.
Petitioner acknowledges that the finality rule is not absolute, since there are some
issues that are too important to be denied review and too independent of the cause itself
to require that appellate consideration be deferred until the whole case is adjudicated[.]
Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 546 (1949)). For the small class
1
28 U.S.C. 1292 allows appeals from certain narrowly defined classes of
interlocutory orders. The order at issue here belongs to none of those classes.

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of decisions excepted from the final-judgment rule, the Supreme Court created the
collateral order doctrine. Papotto v. Hartford Life & Accident Ins. Corp. 731 F.3d 265,
269-70 district courts stay-and-abey order, however, does not satisfy the criteria for the
collateral order doctrine, thus it does not fit within the small class of decisions excepted
from the final judgment rule.
Before the United States Supreme Court decision in Rhines v. Weber, 544 U.S. 269
(2005), this Circuit held that stay-and-abey orders allowing habeas petitioners to exhaust
claims in state court satisfied the collateral order doctrine. Carmichael v. White, 163 F.3d
1044 (8th Cir. 1998). At that time, [t]he question whether a district court may hold an
unexhausted habeas petition in abeyance pending resolution in state court of certain
claims remain[ed] unsettled [and thus] present[ed] an issue that [was] important enough
in a jurisprudential sense to require an immediate interlocutory appeal. Christy v. Horn
115 F.3d 201, 205 (citation omitted). This was also an animating principle in Carmichael.
See 163 F.3d at 1045 (deeming important the unresolved question whether a district
court could stay habeas proceedings). However, as this Circuit has acknowledged in
overruling Carmichael, the rationale for employing the collateral order doctrine [to
allow interlocutory review of stay-and-abey orders] is no longer applicable. Rather
Rhines [v. Weber, 544 U.S. 269 (2005)] conclusively decided a reasonable delay for
petitioners trip to state court and back, to exhaust unexhausted claims, is justified in
limited circumstances. Howard v. Norris, 616 F.3d 799, 803 (8
th
Cir. 2010). A year
before the Supreme Court decided Rhines, the Third Circuit held that a district court is
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empowered to stay a habeas proceeding to allow exhaustion of claims in state court.
Crews v. Horn, 360 F.3d 146, 154 (3d Cir. 2004). This Court should follow the decision
in Howard v. Norris and recognize that stay-and-abey orders no longer satisfy the
collateral order doctrine test. This Circuit prior to Rhines generally precluded stay-and-
abey orders for exhaustion purposes
II. STAY-AND-ABEY ORDERS ALLOWING HABEAS PETITIONERS TO
EXHAUST CLAIMS DO NOT SATISFY THE COLLATERAL ORDER
DOCTRINE
A. The Collateral Order Doctrine
The collateral order doctrine allows review of otherwise non-final orders where
three requirements are met. The order must (1) finally resolve[] a disputed question; (2)
raise[]an important issue distinct from the merits of the case; and (3) [be] effectively
unreviewable on appeal from a final judgment. Christy, 115F.3d at 203. The test is
conjunctive: Failure to meet any of these requirements precludes a finding of appellate
jurisdiction. Id. at 204.
B. Stay-and-abey orders do not satisfy the collateral order doctrines
second prong
Before Rhines some abeyance orders could have met the collateral order doctrine
requirements, and thus this Court would have jurisdiction to consider appeals of such
orders. However, post Rhines the second collateral order doctrine requirement is no
longer applicable to stay-and-abey orders. The second prong of the collateral order
doctrine test is whether the order raises an important issue distinct from the merits of the
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case. This prong contemplates orders that are important in a jurisprudential sense.
Christy, 115 F.3d at 205. The Christy Court held that the unsettled question which it
facedwhether the district court may properly hold a habeas appeal in abeyance while a
petitioner exhausts certain claims in state court, id. at 205met the importance criterion
in light of the important nature of capital habeas cases in general[.] Id. As noted above,
the United States Supreme Court subsequently answered the question in the affirmative.
Rhines, 544 U.S. 269, 274-76 (2005) and this Court has recognized as much in Howard v.
Norris 616 F.3d at 802-803. See also Rankin v. Norris, 396 Fed. Appx. 325 (8
th
Cir.
2010).
In Rhines, the United States Supreme Court held that district courts may stay
habeas proceedings where the petition contains exhausted and unexhausted claimsi.e., a
mixed petitionto allow the applicant to present his unexhausted claims to the state
courts and then, if necessary, return to federal court for review of the fully exhausted
petition. The Court noted that because filing a habeas petition in federal court does not
toll the Anti-Terrorism and Effective Death Penalty Acts one year limitations period,
petitioners who come to federal courts with mixed petitions run the risk of forever
losing their opportunity for any federal review of their unexhausted claims. Rhines 544
U.S. at 275. To preserve that opportunity for federal review, the Supreme Court approved
staying and abeying federal habeas proceedings to allow petitioners to return to state court
and present their unexhausted claims. Id. at 276-77; see also Pace v. DiGuglielmo, 544 U.
S. 408, 416 (2005) (stay-and-abey order is appropriate means to allow a petitioner trying
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in good faith to exhaust state remedies to avoid having to choose between exhausting his
claims and risking that a later filed habeas petition will be found untimely). Federal
habeas proceedings should be stayed where there is good cause for the petitioners
failure to exhaust his claims first in state court, the unexhausted claims are not plainly
meritless, and the petitioner did not engage in intentionally dilatory litigation tactics.
Rhines 544 U.S. at 277-78. Each of the criteria in Rhines are addressed and answered in
the district courts order. The order in the instant case fully answers those questions
posed by the Rhines stay-and-abey test: whether there was good cause for the
petitioners failure to exhaust his claims first in state court, whether there was good
cause for the petitioners failure to exhaust his claims first in state court, whether the
unexhausted claims are not plainly meritless, and whether petitioner engaged in
intentionally dilatory tactics. Id. Each of these questions is fact-bound and case-
specific, and none is important enough in a jurisprudential sense to require an immediate
interlocutory appeal[.] Christy, 115 F.3d at 205 (quotation marks and citation omitted).
Further, none is distinct from the merits of the case, the other component of the
collateral order doctrines second prong. The Supreme Court has made clear that [t]he
second condition insists upon important questions separate from the merits. Mohawk
Indus. v. Carpenter, 558 U.S. 100, 107 (2010) (internal quotation marks and citation
omitted). Respondents can raise in this appeal no plausible question separate from the
merits, since the district courts plainly meritless analysis was necessarily intertwined
with a merits analysis of the case. That analysis was surely informed by the district courts
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familiarity with the potential merits of the unexhausted Ford/Panetti claims. The district
court that the unexhausted claims was not plainly meritless and thus appropriately
granted the stay.
Finally, the total-exhaustion rule is aimed at preventing piecemeal litigation of
habeas petitions in district court. The Sixth Circuit Court of Appeals correctly observes
that it would be strange to enforce it through interlocutory appeals [because] [c]laim-by-
claim litigation in the district and appellate courts undermines [Congress] goal of
streamlining federal habeas proceedings, Rhines, 544 U.S. at 277, and the latter scenario
spreads the problem from one court to two. Swanson v. DeSantis, 606 F.3d 829, 833 (6th
Cir. 2010). For this and additional reasons, the Sixth Circuit ruled that the district court
order staying an unexhausted claim but allowing the exhausted claim to proceed did not
satisfy the collateral order doctrine test. Id. 831-35.
For these reasons, the lower courts order does not meet the second requirement of
the collateral order doctrine.
2. Stay-and-abey orders no longer satisfy the collateral order doctrines third
prong
The third prong of the collateral order doctrine determines whether review
postponed will ultimately be review denied. Christy, 115 F.3d at 206. A district court
staying proceedings to allow a state habeas petition[er] to exhaust claims in state court is
reviewable on appeal after final judgment. Thompson v. Frank, 599 F.3d 1088, 1090
(9th Cir. 2010); see also Valdovinos v. McGrath, 598 F.3d 568, 574 (9th Cir. 2010) (on
appeal of final habeas judgment, court of appeals reviews reasonableness of district
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courts earlier stay order pursuant to Rhines abuse of discretion standard), vacated sub
nom. on other grounds, Horel v. Valdovinos, 131 S.Ct. 1042 (2011). Even if the nature of
review is affected, [t]hat a ruling may burden the litigants in ways that are only
imperfectly reparable by final reversal of a district court judgment . . . has never sufficed
to satisfy the collateral order doctrine. Mohawk, 558 U.S. at 107 (internal quotation marks
and citation omitted). As with any interlocutory order, a mechanism exists for
Respondents to request an immediate appeal: certification by the district court under 28
U.S.C. 1292(b). Absent such certification, however, the State should be bound by the
principle embodied in 28 U.S.C. 1291.
CONCLUSION
For all these reasons, considered separately and together, the Court should dismiss
this appeal for lack of jurisdiction.
Respectfully submitted,
/s/ Richard H. Sindel
Richard H. Sindel
Sindel Sindel & Noble, P.C.
8000 Maryland Ave., Suite 350
Clayton, MO 63105
(314) 721-6040 (tel)
(314) 721-8545 (fax)
Richard H. Sindel, #23406
Kathryn B. Parish, #61781
Joseph J. Perkovich
Sindel Sindel & Noble, P.C.
8000 Maryland Ave., Suite 350
Clayton, MO 63105
(314) 721-6040 (tel)
(314) 721-8545 (fax)
Counsel for Petitioner John C. Middleton
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CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing was forwarded for
transmission via the courts electronic filing system on this 16th day of July, 2014, to all
attorneys of record.
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