Dolis, James v. Chambers, John

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 05-3781
JAMES P. DOLIS,
Petitioner-Appellant,
v.
JOHN CHAMBERS,
Respondent-Appellee.
____________
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 05 C 1189—Paul E. Plunkett, Judge.
____________
ON PETITION FOR REHEARING
____________
SUBMITTED APRIL 14, 2006—DECIDED JULY 24, 2006
____________
Before ROVNER, WOOD, and WILLIAMS, Circuit Judges.
WOOD, Circuit Judge. On March 31, 2006, this court
issued an order granting petitioner James P. Dolis’s implicit
request for a certificate of appealability from the district
court’s dismissal without prejudice of his petition for habeas
corpus relief under 28 U.S.C. § 2254. That order also
vacated the district court’s decision and remanded with
instructions to consider a stay of the federal court proceed-
ings following Newell v. Hanks, 283 F.3d 827 (7th Cir.
2 No. 05-3781
2002).1 Respondent has filed a Request for Reconsideration
of This Court’s Order Dated March 31, 2006, which we have
construed as a Petition for Rehearing. We have carefully
considered the State’s argument that we have no jurisdic-
tion over this appeal, but in the final analysis we conclude
that our original decision was correct. We therefore deny
the petition for rehearing.
The State relies heavily on this court’s decision in Moore
v. Mote, 368 F.3d 754 (7th Cir. 2004), in which we held that
a district court’s order dismissing a petition for a writ of
habeas corpus with leave to refile after the pris-
oner exhausted his state court remedies was not a final
judgment, and thus we had no jurisdiction over the appeal.
We also noted there, however, that “there are ‘special
circumstances’ under which the dismissal of a case with-
out prejudice may constitute a final appealable order,”
and we explained that such 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.” Id. at 755. See also Larkin v. Galloway, 266 F.3d
718, 721 (7th Cir. 2001). In Moore, the petitioner’s claims
were already pending before an Illinois court for post-
conviction review, and thus the petitioner retained the
opportunity to return to federal court after the conclusion
of his state post-conviction proceedings to “definitively
establish exhaustion” and “receive substantive federal
review” of any exhausted claim. 368 F.3d at 756.
The situation that Dolis faces, in which a new federal
petition would be barred as untimely, seems to us to be just
1
The caption in this case has been amended, at the government’s
request, to reflect that Dolis’s current custodian is John Cham-
bers, the warden of the Danville Correctional Center, to which
Dolis has been transferred. Rules Governing § 2254 Cases, Rule
2(a); Fed. R. App. P. 43; see also Araujo v. Chandler, 435 F.3d 678,
679 (7th Cir. 2005).
No. 05-3781 3
such a “special circumstance” where a dismissal without
prejudice is effectively final. In Dolis’s case, the district
court dismissed for failure to exhaust state court remedies
under circumstances in which it contemplated that Dolis
could return and refile after exhaustion. Dolis may indeed
still be able to pursue post-conviction relief in Illinois state
court, but at this point, unless the present case can be
saved, he is precluded by the one-year statute of limitations
for federal habeas corpus petitions from bringing a claim
under 28 U.S.C. § 2254. See, e.g., Escamilla v. Jungwirth,
426 F.3d 868, 870 (7th Cir. 2005) (“The state court’s
willingness to entertain a belated collateral attack on the
merits does not affect the timeliness of the federal proceed-
ing. . . . ”). We note, in this connection, that the date of
finality of Dolis’s conviction is different under Illinois state
law and under the federal Antiterrorism and Effective
Death Penalty Act (AEDPA). Because Dolis did not pursue
his direct appeal before the Illinois appellate court (because
of the ineffectiveness of counsel, he says), his conviction
became final for purposes of Illinois state court proceedings
on September 10, 2003, and he had three years from that
date in which to file a state petition for collateral relief. 725
ILCS 5/122-1(c). See People v. Ross, 818 N.E.2d 738, 741
(Ill. App. 2004). By contrast, for federal petitions for habeas
corpus, the date when the statute begins to run is set out in
28 U.S.C. § 2244(d)(1)(A): “the date on which the judgment
became final by the conclusion of direct review or the
expiration of the time for seeking such review.” See Day v.
McDonough, 126 S. Ct. 1675, 1679 (2006).
Nothing has occurred to toll § 2244(d)(1)’s one-year
statute of limitations since the district court acted. Dolis
has not yet pursued any state court post-conviction reme-
dies, and his federal habeas corpus petition did not stop the
clock, see Duncan v. Walker, 533 U.S. 167, 180 (2001).
Under the circumstances, the district court’s decision
dismissing Dolis’s petition without prejudice became
4 No. 05-3781
effectively final at the moment when the one-year federal
limitations period expired. This court has recognized a
number of different circumstances under which a district
court judgment that initially was nonfinal became final
under analogous circumstances. See, e.g., Otis v. City of
Chicago, 29 F.3d 1159, 1165-66 (7th Cir. 1994) (en banc)
(judgment became final for purposes of appeal after time to
reinstate complaint expired); see also Hoskins v. Poelstra,
320 F.3d 761, 763 (7th Cir. 2003) (“[I]f an amendment
would be unavailing, then the case is dead in the district
court and may proceed to the next tier.”); JTC Petroleum
Co. v. Piasa Motor Fuels, Inc., 190 F.3d 775, 776-77 (7th
Cir. 1999) (nonfinal order dismissing claims without
prejudice became final for purposes of appeal when counsel
agreed at appellate oral argument to conversion to dis-
missal with prejudice). Dolis’s situation is similar. Very
shortly after the district court dismissed his case, it became
impossible for him to refile it, because it would be barred by
the statute of limitations. This case is thus different from
Moore v. Mote, supra, for in Moore a petition for post-
conviction relief under adjudication in the Illinois state
courts stayed the AEDPA statute of limitations, thereby
enabling the petitioner to return later to federal court and
pursue substantive relief on all exhausted claims. See
Moore, 368 F.3d at 755 (“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.”).
Since Moore was decided, the Supreme Court has spoken
to one variant of this problem. In Rhines v. Weber, 544 U.S.
269 (2005), the Court considered “whether a federal district
court has discretion to stay [a] mixed petition to allow the
petitioner to present his unexhausted claims to the state
court in the first instance, and then to return to federal
No. 05-3781 5
court for review of his perfected petition.” Id. at 271-72. It
concluded that the district courts indeed possess that
discretion. The Court took note of the fact that AEDPA both
requires “total exhaustion,” see 28 U.S.C. § 2254(b)(1)(A),
and imposes a one-year statute of limitations on habeas
corpus petitioners, see 28 U.S.C. § 2244(d)(1). Thus, the
Court observed, “petitioners who come to federal court with
‘mixed’ petitions run the risk of forever losing their opportu-
nity for any federal review of their unexhausted claims.”
544 U.S. at 275. In appropriate but limited circumstances,
therefore, the Court concluded that the “stay and abeyance”
procedure used by the district court in the case before it was
proper. It cautioned against overuse of that procedure,
however, because of the potential to undermine the twin
purposes of AEDPA to encourage finality by requiring
prompt resolution of federal habeas corpus petitions and to
streamline the process by requiring total exhaustion of
state court remedies prior to the federal action. Id. at 277.
The district court must decide whether the petitioner
had good cause for his failure to exhaust all claims
and whether the unexhausted claims have some possible
merit. Id. at 277-78.
Nothing in the Supreme Court’s decision in Rhines
gives us reason to alter our conclusion in Moore that a
dismissal of a habeas corpus petition without prejudice
for purposes of permitting the petitioner to exhaust his
remedies in state court is not itself a final order. We must
therefore decide whether the exercise of jurisdiction over
the district court’s order in Dolis’s case, implicitly denying a
stay pending exhaustion, is inconsistent with Rhines. We
conclude that it is not. In the present case, we have no need
to rely on the collateral order doctrine, which provided the
basis for appellate jurisdiction in Rhines, because the
petition was a mixed one with some exhausted and some
unexhausted claims. In our case, Dolis had not exhausted
any of his claims; it is the fact that it eventually became too
6 No. 05-3781
late for him to amend his petition to cure this defect that
makes the district court’s entire judgment a final and
reviewable one.
Our approach is consistent with the cases requiring a
district court to consider whether a stay is appropriate
under circumstances like Dolis’s where the dismissal would
effectively end any chance at federal habeas review. See,
e.g., Newell, 283 F.3d at 834 (“[T]he federal action should
have been stayed, not dismissed, while the Indiana court
ruled on Newell’s pending motion.”); Post v. Gilmore, 111
F.3d 556 (7th Cir. 1997). See also Pace v. DiGuglielmo, 544
U.S. 408, 416 (2005) (“A prisoner seeking state
postconviction relief might avoid this predicament, however,
by filing a ‘protective’ petition in federal court and asking
the federal court to stay and abey the federal habeas
proceedings until state remedies are exhausted. A peti-
tioner’s reasonable confusion about whether a state filing
would be timely will ordinarily constitute ‘good cause’ for
him to file in federal court.”); Duncan v. Walker, 533 U.S.
167, 182-83 (2001) (Stevens, J. concurring) (“In our
post-AEDPA world there is no reason why a district court
should not retain jurisdiction over a meritorious claim and
stay further proceedings pending the complete exhaustion
of state remedies. Indeed, there is every reason to do so . .
. when the failure to retain jurisdiction would foreclose
federal review of a meritorious claim because of the lapse of
AEDPA’s 1-year limitations period.”); Akins v. Kenney, 410
F.3d 451, 455-56 & n.1 (8th Cir. 2005) (remanding for the
district court to consider sua sponte whether a stay should
have been granted where the petitioner had not fully
completed one round of state post-conviction review: “In
order to determine whether a stay pending exhaustion
would be appropriate in this case, [petitioner] must be given
an opportunity to demonstrate good cause for his failure to
exhaust his claims first in state court, to show that his
unexhausted claims are not ‘plainly meritless,’ and to
No. 05-3781 7
demonstrate that he has not engaged in abusive litigation
tactics or intentional delay.”); Jackson v. Roe, 425 F.3d 654,
655 (9th Cir. 2005) (interpreting Rhines to require a federal
court to “in limited circumstances, stay a mixed petition to
allow a petitioner to present an unexhausted claim to a
state court for review”). We have gone so far as to suggest
that it would be wise for a petitioner to file in both state
and federal court simultaneously, particularly where there
is some procedural uncertainty about the state court post-
conviction proceeding, and then ask the district court to
stay the federal case until the state case concludes to
ensure that she does not miss the one-year deadline. In
keeping with Rhines, the district court would naturally
have discretion to decide whether a stay was warranted
in the particular circumstances of each case.
For these reasons, we DENY the State’s petition for
rehearing.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—7-24-06