## 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 hi s 1997 probation revocation proceedings did not comply with procedural du e process. In response, the State of Missouri asserted that C armichael 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 c ourt, and sought to have the federal action either held in abeyan ce or dismissed without prejudice. The district court ordered the action “st ayed for a period of 90 days so [Carmichael] may seek habeas corpus relief in the-2-

Missouri Court of Appeals under . . . Rule 91.” The State appe als the order staying the action for ninety days. We reverse and remand.
Initially, Carmichael co ntends 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 li mited to reviewing a district court’s final deci sions ending litigation on the merits, see id. , we can immediately review a smal l clas s of collateral orders that do not terminate the underlying lawsuit, see Cohen v

. Be neficial Indus. Loan Corp. , 337 U.S. 541, 546 (1949). To qualify for appeal, a coll ateral order must conclusively decide a disputed question that is important an d distinct from the case’s merits and the decision must be effectively unreviewable o n appeal from a judgment. See Munz v. Nix , 908 F.2d 267, 270 (8th Cir. 1990); see also Coopers & L ybrand 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 peti tion in abeyance pending exhaustion of state remedies is an appealable collateral order. See Christ y v. Horn , 115 F.3d 201, 206 (3d Cir. 1997). We agree with the Third Circuit’s assessment and conclude the ruling in
our cas e falls within the collateral order doctrine. First, the order from which Smith ap peals finally resolves the disputed question of whether the district court may hol d an unexhausted habeas pe tition in abeyance for ninety days. See id. at 205. Contrary to Carmichael’s contention, the ninety-day stay is not inherently tentative, bu t 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 on e unex hausted claim. See id. ; see also Gulfstream Aerospace Corp. v. Mayacama s 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-3-

action. See Christy , 115 F.3d at 205-06. Third, we could not effectively review the stay’s pr opriety after Carmichael exhausts his state remedies and presents hi s exhausted petition to the federal courts. Se e id. at 206. Because the order appealed in this case satisfies the requirements of the collateral o rder doctrine, we have jurisdiction to review the order.
Turning t o 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 a

uthority 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 whe n 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 federa l proce edings rather than the ninety-day stay involved in this case. We hold th e principle of comity behind the decision in Victor applies equally to a ninety-day stay.

Carmich ael also asserts the record does not show his petition contain s unexhausted claims. With res pect to every claim in his petition, however, Carmichael had the burden to show that all available state remedies had been exhausted or tha t exceptional circumstances existed. See Darr v. Burf ord , 339 U.S. 200, 218-19 (1950); Brea rd 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 C ir. 1997); Oyler v. Allenbrand , 23 F.3d 292, 300 (10th Cir. 1994); Rust v. Zent , 17 F.3d 155 , 160 (6th Cir. 1994). Carmichael d i d 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 federa l habeas actio n for ninety days is an appealable collateral order, and the district cour t sho uld have dismissed Carmichael’s petition without prejudice for failure to exhaus t-4-

state remedies. Given the State’s representations in the district court and on appeal , Carmi chael should face no problem with a time limitation for filing his Rule 9 1 petit ionin state court. We thus reverse and remand for entry of an order consisten t with this opinion.
A true copy.

Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.