Ricardo Carmichael v. Carl White ( 1998 )


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  •                       United States Court of Appeals
    FOR THE EIGHTH CIRCUIT
    _____________
    No. 98-2775EM
    _____________
    Ricardo Carmichael,                        *
    *
    Appellee,             * Appeal from the United States
    * District Court for the Eastern
    v.                                  * District of Missouri.
    *
    Carl White,                                *
    *
    Appellant.            *
    _____________
    Submitted: December 17, 1998
    Filed: December 23, 1998
    _____________
    Before FAGG, HEANEY, and WOLLMAN, Circuit Judges.
    _____________
    FAGG, Circuit Judge.
    Missouri prisoner Ricardo Carmichael filed this federal habeas action asserting
    his 1997 probation revocation proceedings did not comply with procedural due
    process. In response, the State of Missouri asserted that Carmichael had not exhausted
    his state-court remedies under Missouri Supreme Court Rule 91, and that there is no
    time limitation for filing a Rule 91 petition. Carmichael conceded he had mistakenly
    filed his petition in federal rather than state court, and sought to have the federal action
    either held in abeyance or dismissed without prejudice. The district court ordered the
    action “stayed for a period of 90 days so [Carmichael] may seek habeas corpus relief
    in the
    Missouri Court of Appeals under . . . Rule 91.” The State appeals the order staying the
    action for ninety days. We reverse and remand.
    Initially, Carmichael contends we lack jurisdiction to review the district court’s
    ruling because it is not a final order. See 28 U.S.C. § 1291 (1994). The State contends
    we have jurisdiction to review the ruling under the collateral order doctrine.
    Although our jurisdiction is generally limited to reviewing a district court’s final
    decisions ending litigation on the merits, see 
    id., we can
    immediately review a small
    class of collateral orders that do not terminate the underlying lawsuit, see Cohen v.
    Beneficial Indus. Loan Corp., 
    337 U.S. 541
    , 546 (1949). To qualify for appeal, a
    collateral order must conclusively decide a disputed question that is important and
    distinct from the case’s merits and the decision must be effectively unreviewable on
    appeal from a judgment. See Munz v. Nix, 
    908 F.2d 267
    , 270 (8th Cir. 1990); see also
    Coopers & Lybrand v. Livesay, 
    437 U.S. 463
    , 468 (1978); Bean v. Dormire, 
    10 F.3d 538
    , 539 (8th Cir. 1993) (per curiam).
    Applying these factors, the only circuit to consider the question has held a
    district court’s order holding a habeas petition in abeyance pending exhaustion of state
    remedies is an appealable collateral order. See Christy v. Horn, 
    115 F.3d 201
    , 206 (3d
    Cir. 1997). We agree with the Third Circuit’s assessment and conclude the ruling in
    our case falls within the collateral order doctrine. First, the order from which Smith
    appeals finally resolves the disputed question of whether the district court may hold
    an unexhausted habeas petition in abeyance for ninety days. See 
    id. at 205.
    Contrary
    to Carmichael’s contention, the ninety-day stay is not inherently tentative, but
    conclusively decides that a ninety-day stay to allow pursuit of state remedies is a
    permissible procedural option when a federal habeas petition contains at least one
    unexhausted claim. See id.; see also Gulfstream Aerospace Corp. v. Mayacamas
    Corp., 
    485 U.S. 271
    , 277 (1988). Second, this procedural question is important and
    is separate from the merits of the due process issue raised in the underlying habeas
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    action. See 
    Christy, 115 F.3d at 205-06
    . Third, we could not effectively review the
    stay’s propriety after Carmichael exhausts his state remedies and presents his
    exhausted petition to the federal courts. See 
    id. at 206.
    Because the order appealed in
    this case satisfies the requirements of the collateral order doctrine, we have jurisdiction
    to review the order.
    Turning to the merits, we conclude the district court lacked power to enter a
    ninety-day stay for Carmichael to pursue state remedies. We have already held that a
    district court has no authority to hold a habeas petition containing unexhausted claims
    in abeyance absent truly exceptional circumstances, such as when state remedies are
    inadequate or fail to afford a full and fair adjudication of federal claims, or when
    exhaustion in state court would be futile. See Victor v. Hopkins, 
    90 F.3d 276
    , 279-80
    & n.2, 282 (8th Cir. 1996), cert. denied, 
    117 S. Ct. 1091
    (1997). Carmichael contends
    Victor does not control because that case involved an indefinite stay of federal
    proceedings rather than the ninety-day stay involved in this case. We hold the
    principle of comity behind the decision in Victor applies equally to a ninety-day stay.
    Carmichael also asserts the record does not show his petition contains
    unexhausted claims. With respect to every claim in his petition, however, Carmichael
    had the burden to show that all available state remedies had been exhausted or that
    exceptional circumstances existed. See Darr v. Burford, 
    339 U.S. 200
    , 218-19 (1950);
    Breard v. Pruett, 
    134 F.3d 615
    , 619 (4th Cir.), cert. denied, 
    118 S. Ct. 1352
    (1998);
    Lambert v. Blackwell, 
    134 F.3d 506
    , 513 (3d Cir. 1997); Oyler v. Allenbrand, 
    23 F.3d 292
    , 300 (10th Cir. 1994); Rust v. Zent, 
    17 F.3d 155
    , 160 (6th Cir. 1994). Carmichael
    did not do so. Indeed, in admitting he meant to file his federal petition in state court,
    Carmichael essentially conceded his claims were not exhausted.
    In sum, we conclude the district court’s ruling staying Carmichael’s federal
    habeas action for ninety days is an appealable collateral order, and the district court
    should have dismissed Carmichael’s petition without prejudice for failure to exhaust
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    state remedies. Given the State’s representations in the district court and on appeal,
    Carmichael should face no problem with a time limitation for filing his Rule 91
    petition in state court. We thus reverse and remand for entry of an order consistent
    with this opinion.
    A true copy.
    Attest:
    CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
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