RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

File Name: 10a0163p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT _________________

SUSAN SWANSON,

Petitioner-Appellee,

v.

THOMAS DESANTIS,

Respondent-Appellant.

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No. 09-1501

Appeal from the United States District Court for the

Western District of Michigan at Grand Rapids.

No. 07-00292—Paul Lewis Maloney, Chief District Judge.

Submitted: January 21, 2010

Decided and Filed: June 4, 2010 

Before: BATCHELDER, Chief Judge; SUTTON and KETHLEDGE, Circuit Judges.

_________________

COUNSEL

ON BRIEF: Brian O. Neill, OFFICE OF THE MICHIGAN ATTORNEY GENERAL,

Lansing, Michigan, for Appellant. Lawrence J. Emery, LAW OFFICE, Lansing, Michigan,

for Appellee. 

_________________

OPINION

_________________

SUTTON, Circuit Judge. Susan Swanson filed a federal habeas corpus petition

challenging her state court conviction on two grounds. The district court concluded that

Swanson had exhausted her state remedies for one of the claims but not the other, then

allowed the exhausted claim to proceed in federal court but stayed the unexhausted claim

pending its review in state court. The State appeals, arguing that the district court may not

proceed with a partially exhausted petition. Because we do not have the power to review this

non-final judgment, we dismiss the appeal for lack of jurisdiction. 

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No. 09-1501 Swanson v. DeSantis Page 2

I.

In 2002, Swanson hit and killed a pedestrian while driving on Grand River Avenue

outside of Lansing, Michigan. The next year, a jury convicted her of (1) operating a motor

vehicle under the influence and causing death, and (2) failing to stop at the scene of an

accident involving a serious injury. See M.C.L. §§ 257.625(4), 257.617. She received a

combined sentence of 54 to 180 months. The Michigan Court of Appeals and the Michigan

Supreme Court denied her requests for relief. See People v. Swanson, 711 N.W.2d 41 (Mich.

2006).

In 2007, Swanson petitioned for federal habeas corpus relief on two grounds: (1) the

trial court gave the jury constitutionally defective instructions; and (2) her sentence turned

on judicial factfinding in violation of Blakely v. Washington, 542 U.S. 296 (2004). Michigan

responded that Swanson did not exhaust the claims in state court. See 28 U.S.C. § 2254(b).

The district court agreed in part, holding that Swanson had failed to exhaust her juryinstruction claim but had exhausted her Blakely claim.

At that point, the district court did not dismiss the entire petition. Nor did the court

stay it. Nor did the court follow any of the other traditional paths for handling a mixed

petition, one with exhausted and unexhausted claims. See Harris v. Lafler, 553 F.3d 1028,

1031–32 (6th Cir. 2009); see also Rose v. Lundy, 455 U.S. 509, 510 (1982). Instead, the

court proceeded with the Blakely claim and stayed the jury-instruction claim, apparently with

the idea that Swanson could then contest the jury-instruction claim in state court. In opting

to proceed on part of the petition, the district court relied on a case that arises under the

Prison Litigation Reform Act (PLRA), Jones v. Bock, 549 U.S. 199 (2007), which it

interpreted to hold that “courts are no longer permitted to dismiss properly-exhausted habeas

claims merely because the petition also contains unexhausted claims.” R.45 at 19 n.3. The

State filed a motion for reconsideration. It asked the court to stay the whole petition, arguing

(1) that a court may not grant relief on a petition containing an unexhausted claim and (2)

that “Jones v. Bock applies to prisoner actions challenging the conditions of confinement,

not . . . habeas actions.” R.46 at 2. The court appears to have misunderstood the State’s

motion (not itself a paragon of clarity), treating it as a request to proceed on the exhausted
No. 09-1501 Swanson v. DeSantis Page 3

Blakely claim—the opposite of what the State sought. The court denied the motion, and the

State appealed.

II.

The State argues that the “total exhaustion” rule prohibits a district court from

proceeding to address a petition that contains exhausted and unexhausted claims. See Rhines

v. Weber, 544 U.S. 269, 273–74 (2005); Lundy, 455 U.S. at 510. When faced with a mixed

petition, the State points out, the district court has four options: (1) stay the entire petition;

(2) dismiss the entire petition without prejudice; (3) deny the entire petition on the merits;

or (4) dismiss the unexhausted claims and proceed with the exhausted ones. See Harris, 553

F.3d at 1031–32. But here, the State adds, the court mistakenly thought it had a fifth

option—staying some claims and proceeding on the merits with the others—misconstruing

Jones v. Bock, which, in rejecting a total exhaustion rule for conditions-of-confinement cases

under the PLRA, distinguished (and preserved) the total exhaustion rule for habeas corpus

cases. See 549 U.S. at 221–22.

Before reaching the merits of the State’s arguments, we must consider our power to

hear them. Two potential obstacles exist. First: Is the district court’s ruling a “final

decision[]”? 28 U.S.C. § 1291. If not, we lack jurisdiction over the appeal. See Mohawk

Indus., Inc. v. Carpenter, 558 U.S. ___, 130 S. Ct. 599, 604–05 (2009). Second: Have

intervening events mooted the appeal? According to Swanson’s brief, the State has released

her on parole, which suggests she would derive little, if any, benefit from a decision adopting

her Blakely argument that the state court unconstitutionally extended her parole eligibility

date. Because the State appeals only the district court’s decision to proceed on the Blakely

claim, the entire appeal would be moot if that claim is moot.

It takes just one jurisdictional defect to deprive a court of authority to hear a case.

We will start—and finish—with the final-order question.

Section 1291 empowers the courts of appeals to review “final decisions,” those that

“end[] the litigation on the merits and leave[] nothing for the court to do but execute the

judgment.” Cunningham v. Hamilton County, 527 U.S. 198, 204 (1999). In the normal

course, that means the losing party will “raise all claims of error in a single appeal following
No. 09-1501 Swanson v. DeSantis Page 4

final judgment.” Firestone Tire & Rubber Co. v. Risjord, 449 U.S. 368, 374 (1981). A

typical “final decision[]” in the habeas context would include orders granting or denying

petitions on the merits. See, e.g., Tucker v. Palmer, 541 F.3d 652, 655 (6th Cir. 2008)

(reviewing grant of writ); Coomer v. Yukins, 533 F.3d 477, 483 (6th Cir. 2008) (reviewing

denial of writ). 

Today’s appeal does not meet this definition. It is the epitome of a request for

interlocutory relief, as the relevant order more closely resembles a routine claim-processing

order than a decision leaving nothing more to do than “to execute the judgment.”

Cunningham, 527 U.S. at 204. The court permitted Swanson to proceed with the merits of

her Blakely claim, but it did not finally resolve the merits of that claim or for that matter even

begin to resolve the merits of that claim. An order establishing that a court—at some

point—will resolve the merits of a claim is not a final order, and that would be so even if this

were the only claim in the case. But it was not even that. Swanson raised another ground

for relief, her jury-instruction claim, and the court did not resolve the merits of that claim

either. It did just the opposite, staying resolution of the claim until Swanson exhausted her

state court remedies. Whether these classically interim orders are considered singly or

together, they do not amount to “final decisions” under § 1291.

Neither are the orders eligible for interim review as orders “granting, . . . refusing or

dissolving injunctions.” 28 U.S.C. § 1292(a)(1). Although some orders described as “stays”

may have the practical effect of an injunction and thus qualify for appeal under § 1292(a)(1),

see Workman v. Bredesen, 486 F.3d 896, 904 (6th Cir. 2007), stay orders that merely

regulate the course of proceedings do not qualify, see In re M.T.G., Inc., 403 F.3d 410, 414

(6th Cir. 2005). “An order by a federal court that relates only to the conduct or progress of

litigation before that court ordinarily is not considered an injunction and therefore is not

appealable under § 1292(a)(1).” Gulfstream Aerospace Corp. v. Mayacamas Corp., 485

U.S. 271, 279 (1989). 

That leaves one more possibility—the collateral-order doctrine—a haven of last

resort for litigants disappointed by interim-relief orders that do not terminate the litigation.

Section 1291, as the Court has construed the statute since 1949, see Cohen v. Beneficial

Indus. Loan Corp., 337 U.S. 541, allows us to hear not only decisions that terminate the
No. 09-1501 Swanson v. DeSantis Page 5

litigation in full but also “a small class of collateral rulings that, although they do not end the

litigation, are appropriately termed final.” Mohawk Indus., 130 S. Ct. at 605 (quotation

marks omitted). To file an interlocutory appeal under the collateral-order doctrine, the

decision (1) must be “conclusive” on the question it decides, (2) must “resolve important

questions separate from the merits” and (3) must be “effectively unreviewable” if not

addressed through an interlocutory appeal. Id. That is not as easy as it might sound. The

courts have vigilantly preserved the narrow confines of the collateral order doctrine to

promote “judicial efficiency” and to “avoid[] the obstruction to just claims that would come

from permitting the harassment and cost of a succession of separate appeals.” Will v.

Hallock, 546 U.S. 345, 350 (2006). “The justification for immediate appeal must . . . be

sufficiently strong to overcome the usual benefits of deferring appeal until litigation

concludes.” Mohawk Indus., 130 S. Ct. at 605.

The State does not satisfy this test. As to the first requirement, it is not clear that the

court’s order amounts to a “conclusive” resolution of the issue appealed. We need not

resolve the point, however. Even if we treat the district court’s order as conclusively

resolving the court’s authority to proceed with one claim of a petition containing other

unexhausted claims, the State still runs into problems on the other prongs of the test.

As to the second requirement, the order does not “resolve important questions

separate from the merits,” at least not sufficiently urgent questions to merit an exception to

the traditional final-judgment rule. The point of the total-exhaustion rule is to prevent

piecemeal litigation in the district court over habeas petitions. That may be an important

objective, but how strange to enforce it through interlocutory appeals. Avoiding piecemeal

litigation in the district court does not justify piecemeal litigation in the court of appeals.

Claim-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.

As to the third consideration, States faced with Michigan’s problem “have several

potential avenues of review apart from collateral order appeal,” and accordingly the issue

is not “effectively unreviewable” if we dismiss the appeal. Mohawk Indus., 130 S. Ct. at

605, 607. If the district court grants the writ on one claim without reaching a different,
No. 09-1501 Swanson v. DeSantis Page 6

unexhausted claim in the petition, we may review that order as a “final decision[]”—whether

because, as required in some circuits, the district court signs off on the finality of the ruling

under Rule 54(b) of the Federal Rules of Civil Procedure, see Foxworth v. Maloney, 515

F.3d 1, 3 n.1 (1st Cir. 2008) (collecting cases), or because, as may be the case in other

circuits, the order may be reviewed in the ordinary course under § 1291, see id.; cf. Miller

v. Misfud, 762 F.2d 45, 46 (6th Cir. 1985) (per curiam). Even if the timing of the case allows

the petitioner to exhaust all claims before final judgment—by which point this court would

have no easy way to undo the district court’s decision to proceed with part of what was

originally a mixed petition—that does not deprive the State of all opportunity for review

along the way. A State may seek mandamus review of such an order if it “amount[s] to a

judicial usurpation of power or a clear abuse of discretion, or otherwise works a manifest

injustice.” Mohawk Indus., 130 S. Ct. at 607; see Gulfstream Aerospace, 485 U.S. at 288

n.13 (noting that mandamus is merited in “exceptional cases involving stay orders”). In

appropriate circumstances, moreover, a district court may certify an issue for immediate

appeal under 28 U.S.C. § 1292(b), which (with the court of appeals’ approval) also may

provide a useful “safety valve” for immediate review. Digital Equip. Corp. v. Desktop

Direct, Inc., 511 U.S. 863, 883 (1994). There is no compelling need to stretch the collateral

order doctrine to fit this case. 

This conclusion accords with the general rule that a district court’s decision to grant

or deny a stay of its own proceedings “is not ordinarily a final decision for the purposes of

§ 1291.” Moses H. Cone Mem’l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 10 n.11

(1983); see Charles Alan Wright, Arthur R. Miller & Edward H. Cooper, 15A Federal

Practice & Procedure § 3914.13 (2d ed. 1992) (“Stays . . . used to regulate the court’s own

proceedings or to accommodate the needs of parallel proceedings . . . are no more appealable

than other interlocutory procedural orders.”). No doubt, there are exceptions to this general

rule; there often are. But they do not apply here. Michigan invokes a line of cases premised

on Moses H. Cone Memorial Hospital, where the Supreme Court permitted an appeal of a

stay granted under the Colorado River abstention doctrine. But, in allowing the interlocutory

appeal, the Court reasoned that the order in that case “amount[ed] to a refusal to adjudicate

the merits.” 460 U.S. at 12. Adding that the order had the “sole purpose and effect” of

“surrender[ing] jurisdiction of a federal suit to a state court,” the Court contrasted the order
No. 09-1501 Swanson v. DeSantis Page 7

from one that, like today’s order, merely has “the practical effect of allowing a state court

to be the first to rule on a common issue.” Id. at 10 n.11.

Since Moses H. Cone Memorial Hospital, the Court has held that § 1291 does not

grant automatic jurisdiction over an order denying a Colorado River stay. See Gulfstream

Aerospace, 485 U.S. at 278. That is the better analogy to our case. The order at issue is

closest to a denial of a stay, because the State contests not the decision to stay one claim but

the decision to proceed with the other, reinforcing the position that no review should be

available here. We know of no precedent addressing this issue that permits the appeal on

collateral-order grounds. 

Not so, says Michigan, pointing to courts that have agreed to hear appeals by States

challenging stays of unexhausted habeas petitions under the collateral order doctrine. See

Carmichael v. White, 163 F.3d 1044, 1045 (8th Cir. 1998); Christy v. Horn, 115 F.3d 201,

206 (3d Cir. 1997); see also Johnson v. Texas, 878 F.2d 904, 906 (5th Cir. 1989) (hearing

appeal by petitioner). It is not clear, as an initial matter, whether Carmichael, Christy and

Johnson remain good law after Mohawk Industries, in which the Court expressed

reservations about expanding the doctrine. At least one court has suggested “no.” See

Thompson v. Frank, 599 F.3d 1088, 1090 (9th Cir. 2010) (per curiam) (addressing the

question after Mohawk Industries and concluding that § 1291 does not allow appeal from a

stay of habeas proceedings). Be that as it may, we need not resolve the point. All three

cases addressed a different scenario, one in which the State appealed a decision granting a

stay of an entire case. Here, by contrast, the State appeals a decision denying a stay of part

of the case. All three cases also relied on the distinction in Moses H. Cone Memorial

Hospital and Gulf Aerospace between granting a stay and denying it, see Carmichael, 163

F.3d at 1045; Christy, 115 F.3d at 204–05; Johnson, 878 F.2d at 905–06—a point that, as

noted, cuts in the opposite direction from the path the State wishes us to take. 

In the final analysis, § 1291 does not permit an appeal in this case. That leaves one

last—truly last—potential form of interim appellate relief: a mandamus petition. See

28 U.S.C. § 1651. We have the discretion to treat the State’s appeal as a petition for

mandamus relief, and we have done so before. See, e.g., Beard v. Carrollton R.R., 893 F.2d

117, 120 (6th Cir. 1989). We decline to do so today. For one thing, the case may already
No. 09-1501 Swanson v. DeSantis Page 8

be moot, as noted above. For another, the State’s difficulty below seemed to stem largely

from a misunderstanding about the State’s legal position, and the district court should get

another shot at the issue—perhaps after it has been more clearly briefed—before we consider

interfering with its processing of the case. 

III.

For these reasons, we dismiss the appeal for lack of jurisdiction.