1997 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

6-5-1997

Christy v. Horn

Precedential or Non-Precedential:

Docket 96-9004

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Recommended Citation

"Christy v. Horn" (1997). 1997 Decisions. Paper 120.

http://digitalcommons.law.villanova.edu/thirdcircuit_1997/120
Filed June 5, 1997 

UNITED STATES COURT OF APPEALS 

FOR THE THIRD CIRCUIT 

No. 96-9004 

LAWRENCE DUANE CHRISTY, 

Appellee 

v. 

MARTIN F. HORN, COMMISSIONER, PENNSYLVANIA 

DEPARTMENT OF CORRECTIONS; JAMES S. PRICE, 

SUPERINTENDENT, STATE CORRECTIONAL INSTITUTION 

AT GREEN; JOSEPH MAZURKIEWICZ, 

SUPERINTENDENT, STATE CORRECTIONAL INSTITUTION 

AT ROCKVIEW, 

Appellants 

ON APPEAL FROM THE 

UNITED STATES DISTRICT COURT 

FOR THE WESTERN DISTRICT OF PENNSYLVANIA 

(D.C. Civil No. 96-37J) 

Argued March 21, 1997 

Before: BECKER, NYGAARD and ROTH, Circuit Judges. 

(Opinion Filed June 5, 1997) 

Christian A. Fisanik, (Argued) 

Chief Deputy, Appellate Div. 

Office of the Cambria County 

District Attorney 

Ebensburg, Pa. 15931 

Counsel for the Appellants 
John Unkovic, Esq. (Argued) 

Reed Smith Shaw & McClay 

435 Sixth Avenue 

Pittsburgh, Pa. 15219 

W. Thomas McGough Jr., Esq. 

Reed Smith Shaw & McClay 

435 Sixth Avenue 

Pittsburgh, Pa. 15219 

Counsel for the Appellee 

David Wycoff, Esq. 

Defender Association of 

Philadelphia - Federal Court 

Division 

437 Chestnut Street, Suite 510 

Philadelphia, Pa. 19106 

Counsel for Amicus Curiae, 

Defender Association of 

Philadelphia - Federal Court Div. 

Robert Brett Dunham, Esq. 

Center for Legal Education, 

Advocacy & Defense Assistance 

437 Chestnut Street, Suite 501 

Philadelphia, Pa. 19106 

Billy H. Nolas, Esq. 

Center for Legal Education 

Advocacy & Defense Assistance 

437 Chestnut Street, Suite 501 

Philadelphia, Pa. 19106 

Counsel for Amicus Curiae, 

Center for Legal Education, 

Advocacy & Defense Assistance 

 2 
OPINION OF THE COURT 

NYGAARD, Circuit Judge. 

The district court granted the Appellee, Lawrence Duane 

Christy, a stay of execution and held his federal habeas 

petition in abeyance pending exhaustion of a particular 

issue in state court. Arguing that the district court did not 

have the authority to hold the Appellee's habeas petition in 

abeyance, the Commonwealth of Pennsylvania has 

appealed. 

I. 

On February 15, 1996, the Governor of Pennsylvania 

signed a warrant scheduling the Appellee's execution for 

March 12, 1996. Christy asked the district court for 

permission to proceed in forma pauperis, for counsel to be 

appointed to assist him in preparing a habeas petition and 

for a stay of his scheduled execution. On February 21, 

1996, the district court appointed new counsel and gave 

them ninety days to file a habeas petition on Christy's 

behalf. The district court also stayed Christy's execution 

date. See 21 U.S.C. § 848(q)(4)(B); 28 U.S.C. § 2251; 

McFarland v. Scott, 114 S. Ct. 2568 (1994). Counsel filed 

Christy's habeas petition on April 17, 1996. 

The day before Christy's petition was filed, the United 

States Supreme Court announced its decision in Cooper v.

Oklahoma, 116 S. Ct. 1373 (1996). In Cooper, the Supreme 

Court held that a state violates a defendant's right to due 

process if it requires the defendant to bear the burden of 

establishing by clear and convincing evidence his 

incompetency to stand trial. Id. Due no doubt to the 

diligence of counsel, Christy's habeas petition included a 

claim alleging that the Commonwealth of Pennsylvania 

violated his constitutional rights under Cooper. 

The Commonwealth of Pennsylvania answered Christy's

petition on July 16, 1996, and asserted that Christy had 

failed to exhaust his state court remedies for the purported 

Cooper error. On August 9, 1996, Christy asked the district 

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court to hold his habeas petition in abeyance while he 

returned to state court to exhaust his Cooper claim. Over 

the opposition of the Commonwealth, the district court 

granted the abeyance motion and also kept the stay of 

execution in effect while Christy proceeded in state court. 

The Commonwealth now appeals. This case presents a 

number of important questions, not the least of which is 

whether we have jurisdiction to review this order in the first 

place. 

II. 

28 U.S.C. § 1291 usually limits our appellate jurisdiction 

to reviewing final decisions of the district courts. Martin v.

Brown, 63 F.3d 1252, 1256 (3d Cir. 1996). A judgment is 

final only when there is a "decision by the district court 

that ends the litigation on the merits and leaves nothing for 

the court to do but execute the judgment." Bryant v.

Stevens, 57 F.3d 308, 311 (3d Cir. 1995); see also Isador

Paiewonsky and Assoc. v. Sharp Properties Inc., 998 F.2d 

145, 150 (3d Cir. 1993). In other words, a final order is one 

which leaves the district court with "nothing to do." See

Farmer v. McDaniel, 98 F.3d 1548, 1552 (9th Cir. 1996). 

The dispositive inquiry is whether the order appealed from 

finally resolved the case below. See Presbytery of N.J.

Orthodox Presbyterian Church v. Florio, 40 F.3d 1454, 1461 

(3d Cir. 1994). 

The order appealed from here is not a final order. The 

district court ordered that "adjudication of the petition for 

writ of habeas corpus shall be held in abeyance pending his 

exhaustion of state court remedies" and that "the stay of 

execution entered by this court on February 21, 1996 be 

and hereby is continued in effect until further order of this 

court." Clearly, this order does not resolve the habeas case. 

It is not dispositive of any issue raised in Christy's habeas 

petition. The district court expressly indicates the transient 

nature of the order by indicating it will only remain in effect 

until "further order of this court." 

The Commonwealth tacitly agrees that this is not a final 

order by arguing that we have jurisdiction pursuant to the 

"collateral order" doctrine first announced in Cohen v.

 4 
Beneficial Indus. Loan Co., 337 U.S. 541, 69 S. Ct. 1221 

(1949). In Cohen, the Supreme Court held that a "small 

class" of collateral orders are final and appealable under 28 

U.S.C. § 1291 even though they do not terminate the

underlying litigation. 337 U.S. at 546, 69 S. Ct. at 1225-26. 

The case law on the collateral order doctrine is extensive 

and its requirements are clear. We can review a collateral 

order that (1) finally resolves a disputed question; (2) raises 

an important issue distinct from the merits of the case; and 

(3) is effectively unreviewable on appeal from afinal 

judgment. Praxis Properties v. Colonial Sav. Bank SLA, 947 

F.2d 49, 54 (3d Cir. 1991); see also In re Ford Motor

Company, 1997 WL 164190 (3d Cir. April 9, 1997). Failure 

to meet any of these requirements precludes a finding of 

appellate jurisdiction. United States v. Bertoli, 994 F.2d 

1002, 1012 (3d Cir. 1993). 

The Supreme Court has repeatedly referred to the 

collateral order doctrine as a "narrow exception" to the final 

judgment rule. See, e.g., Richardson-Merrell Inc. v. Koller, 

472 U.S. 424, 430, 105 S. Ct. 2757, 2760-61 (1985). We 

have followed this admonition and construed the doctrine 

narrowly "lest the exception swallow up the salutary 

general rule that only final orders be appealed." Yakowicz

v. Pennsylvania, 683 F.2d 778 n.10 (3d Cir. 1982); see also

Transtech Indus., Inc. v. A&Z Septic Clean, 5 F.3d 57 (3d 

Cir. 1993) ("We have followed the Supreme Court's 

admonition and have consistently construed the Cohen

exception narrowly rather than expansively."). 

Moreover, strict construction of the collateral order 

doctrine is designed to further the longstanding 

congressional policy against piecemeal appeals which 

underlies the final judgment rule. See Lusardi v. Xerox

Corp., 747 F.2d 174, 177 (3d Cir. 1984).1 To guard against 

the temptation to expand the doctrine's reach, the Supreme 

_________________________________________________________________ 

1. In Lusardi, we stated that the final judgment rule serves a number of 

purposes including the efficient administration of scarce judicial 

resources, maintenance of the appropriate relationship between the trial 

and appellate courts, and the protection of the judicial process and its 

participants from the delay which can prove advantageous to a wellfinanced litigant. 747 F.2d at 177 (citations omitted). 

 5 
Court has instructed that the question of whether or not an 

order is immediately appealable should be decided for the 

entire category to which the order in question belongs. 

Digital Equip. Corp. v. Desktop Direct Inc., 511 U.S. 853, 

855, 114 S. Ct. 1992, 1994 (1994). Therefore, we now 

decide the question of whether an order which holds a 

habeas appeal in abeyance and stays an execution is

immediately appealable. 

A. Conclusiveness 

To pass the first prong of the collateral order doctrine 

test, the order appealed from must "finally resolve a 

disputed question." Praxis Properties, 947 F.2d at 54. This 

inquiry has been labeled the "conclusiveness prong." Id. In 

determining whether an order "conclusively determines the 

disputed questions," the Supreme Court has contrasted two 

types of orders: those which are "inherently tentative" and 

those which are "technically amendable, but made with the 

expectation that they will be the final word on the subject 

addressed." See Gulfstream Aerospace v. Mayacamas Corp., 

485 U.S. 271, 277, 108 S. Ct. 1133, 1137 (1987). 

Although we are aware of no case that bears directly on 

the issue whether an order holding a habeas petition in 

abeyance is conclusive for purposes of the collateral order 

doctrine, we draw instruction from two Supreme Court 

cases addressing the question of whether an order granting 

a Colorado River stay2 is conclusive. In Moses H. Cone

Mem'l. Hosp. v. Mercury Construction Corp., 460 U.S. 1, 103 

S. Ct. 927 (1983), the Supreme Court held that a district 

court order granting a Colorado River stay was expected to 

be the final word on the subject and thus satisfied the 

"conclusiveness" prong of Cohen. The Court reasoned that 

an order granting such a stay necessarily contemplated 

that the federal court will have nothing further to do in 

resolution of any substantive part of the case because a 

_________________________________________________________________ 

2. In Colorado River Water Conservation Dist. v. United States, 424 U.S. 

800, 96 S. Ct. 1236 (1976), the Supreme Court held that in "exceptional 

circumstances," a federal district court may stay or dismiss an action 

solely because of the pendency of similar litigation in state court. 424 

U.S. at 818, 96 S. Ct. at 1246. 

 6 
district court can invoke Colorado River only if it first 

determines that the parallel state proceeding will be an 

adequate vehicle for the complete and prompt resolution of 

the issues between the parties. 460 U.S. at 28, 103 S. Ct. 

at 943. Thus, the Supreme Court concluded that such an 

order meant that the district court had no reason to 

reconsider its decision. 

In contrast to the Cone decision, the Supreme Court has 

held that an order denying a Colorado River stay is 

"inherently tentative." In Gulfstream Aerospace, the Court 

explained that a district court usually will revisit and 

reassess an order denying a Colorado River stay in light of 

subsequent events that occur during the course of the 

litigation. 485 U.S. at 278, 108 S. Ct. at 1137-38 (citations 

omitted). If an order is not entered "with the expectation 

that it will be the final word on the subject addressed," it 

is not immediately appealable. Id. We believe that the order 

appealed from here is more akin to type of order appealed 

from in the Cone case. The reasoning of Cone and 

Gulfstream Aerospace is helpful here, at least by analogy. 

The determination in those cases of conclusiveness of the 

stay order effectively turned on whether a "revision [of the 

order] might reasonably be expected in the ordinary course 

of the litigation." Cone, 460 U.S. at 12 n.14, 103 S. Ct. at 

935 n. 14. 

At all events, the issue before us on appeal is a discrete 

legal question -- whether the district court may properly 

hold a habeas appeal in abeyance while a petitioner

exhausts certain claims in state court. The order appealed 

from herein resolves that question in the affirmative. 

Christy argues that the district court's order holding his 

habeas petition in abeyance and staying his execution was 

"inherently tentative." Christy reasons that the district 

court's order was not made with the expectation that it will 

be the final word on the subject addressed. Christy

misconstrues the first prong of Cohen. Although the district 

court's order may not have been the final word on the 

merits of the habeas petition, it did conclusively determine 

the discreet legal question that is the subject of this appeal. 

See Praxis Properties, 947 F.2d at 56. Having determined 

that it may exercise such authority over an unexhausted 

 7 
habeas petition, we cannot perceive of any circumstances 

in which the district court would revisit the question. 

Because the district court undoubtedly expected that its 

order would resolve the question of whether it may hold an 

unexhausted habeas petition in abeyance, we conclude that 

the "conclusiveness prong" of the collateral order is 

satisfied. 

B. Importance/Separateness 

The Commonwealth maintains that the district court's 

order holding Christy's habeas petition in abeyance

"resolves an important issue completely separate from the 

merits of the action." Christy submits that the order 

appealed from merely deferred resolution of the petition and 

did not resolve any important issue. The Supreme Court 

has instructed that the "importance of the right asserted 

has always been a significant part of [the] collateral order 

doctrine." Lauro Lines S.R.L. v. Chasser, 490 U.S. 495, 504, 

109 S. Ct. 1976, 1980 (1989). Therefore, we must assure 

ourselves that the issue presented herein is important 

enough to merit immediate appeal. See Praxis Properties, 

947 F.2d at 56. 

We have held that the "importance/separateness prong" 

of Cohen contemplates orders that are important in a 

jurisprudential sense. See Praxis Properties, 947 F.2d at 56 

(citing Nemours Found. v. Manganaro Corp., 878 F.2d 98, 

100 (3d Cir. 1989)). The question whether a district court 

may hold an unexhausted habeas petition in abeyance

pending resolution in state court of certain claims remains 

unsettled. While some of our district courts have found 

such authority, See Beasley v. Fulcomer, No. 90-4711, 1991 

U.S. Dist. LEXIS 5408 (E.D. Pa. Apr. 22, 1991); Edwards v.

Horn, No. 1:CV-95-1876 (M.D. Pa. Feb. 21, 1996), Szuchon

v. Lehman, No. 94-195E (W.D. Pa. Feb. 6, 1995), another 

circuit has determined that district courts lack the 

authority to hold such petitions in abeyance, Victor v.

Hopkins, 90 F.3d 276 (8th Cir. 1996). Given the important 

nature of capital habeas cases in general, we conclude that 

this appeal presents an issue that is "important enough in 

a jurisprudential sense to require an immediate 

 8 
interlocutory appeal." Nemours Foundation, 878 F.2d at 

101. 

In addition to determining whether this appeal presents 

an "important" issue, we also must decide whether the 

order appealed from is separate from the merits of the 

underlying action. This "separateness" requirement derives 

from the policy against piecemeal appeals. Cone, 460 U.S. 

at 12 n.13, 103 S. Ct. at 945 n.13 (citations omitted). We 

do not believe that the order appealed from here involves 

"considerations that are enmeshed in the factual and legal 

issues comprising the [petitioner's] cause of action." 

Coopers and Lybrand v. Livesay, 437 U.S. 463, 469, 98 S. 

Ct. 2454, 2458 (1978). The order appealed from and the 

precise legal issue it presents will not thrust us into the 

merits of the underlying habeas petition. Here, we are 

asked only to determine the propriety of a district court 

order which keeps an unexhausted habeas petition in

abeyance while the petitioner returns to state court to 

exhaust certain claims. Such a determination is sufficiently 

ancillary to the underlying action that we need not become 

"enmeshed" in the merits of the dispute. We therefore 

conclude that the order appealed from satisfies the

"separateness prong" of the collateral order doctrine. 

C. Unreviewability 

Last, to be appealable under the collateral order doctrine, 

an order must be such that review postponed will 

ultimately be review denied. See Praxis Properties, 947 F. 

2d at 58; Zosky v. Boyer, 856 F.2d 554, 561 (3d Cir. 1988). 

An order is effectively unreviewable if the order involves "an 

asserted right the legal and practical value of which would 

be destroyed if it were not vindicated before trial." Lauro

Lines, 490 U.S. at 499, 109 S. Ct. at 1978 (citations 

omitted). The Commonwealth argues that by permitting the 

petitioner to return to state court and exhaust particular 

issues, the order effectively destroys any appellate review of 

its appropriateness. We agree. If we do not review the 

matter at this juncture, the Petitioner will have returned to 

state court and exhausted his claims, thereby presenting 

the district court with an exhausted habeas petition and 

rendering the appropriateness of the district court's stay 

 9 
and abeyance ruling unreviewable. We therefore find that 

the district court's order holding the habeas petition in 

abeyance is "effectively unreviewable" on appeal from a final 

judgment in this case. 

In summary, we find that the district court's order

holding Christy's habeas petition in abeyance pending 

exhaustion of state court remedies satisfies all the 

requirements of the collateral order doctrine and, as such, 

is an appealable order within the meaning of 28 U.S.C. 

§ 1291. Having determined that we have the requisite 

jurisdiction, we now turn to the merits of this appeal. Our 

review is plenary. Toulson v. Beyer, 987 F.2d 984, 986 (3d 

Cir. 1993). 

III. 

28 U.S.C. § 2254 instructs a federal court to refuse a 

state prisoner's habeas petition unless "it appears that the 

applicant has exhausted the remedies available in the 

courts of the State." 28 U.S.C. § 2254(b) (1988). This 

"exhaustion requirement" is primarily grounded in the 

"respect which federal courts have for the state judicial 

processes and upon the administrative necessities of the 

federal judiciary." Wade v. Mayo, 334 U.S. 672, 679, 68 S. 

Ct. 1270, 1274 (1948). In Rose v. Lundy, 455 U.S. 509, 102 

S. Ct. 1198 (1982), the Supreme Court applied these

principles to a case which involved a "mixed" habeas 

petition -- a petition which contained both exhausted and 

unexhausted claims. The Court held that "because the rule 

requiring exhaustion of all claims furthers the purposes 

underlying the habeas statute . . . a district court must 

dismiss such `mixed petitions.' " Id. at 510, 102 S. Ct. at 

1199. The Court clearly warned habeas litigants: "[B]efore 

bringing any claims to federal court, be sure to first take 

each issue to the state court." Id. at 520, 102 S. Ct. at 

1204. However, this "total exhaustion" rule is not an 

inflexible barrier to federal court jurisdiction, but a rule of 

comity. Strickland v. Washington, 466 U.S. 468, 684, 104 S. 

Ct. 2052, 2063 (1984). The Supreme Court has indicated 

that, although there is a strong presumption in favor of 

exhaustion, there are also "limited circumstances under 

which the failure [to exhaust] will not act as a complete bar 

 10 
to federal habeas review." Pillette v. Foltz, 824 F.2d 494, 

496 (6th Cir. 1987) (citing Granberry v. Greer, 481 U.S. 

129, 107 S. Ct. 1671 (1987)). We recognize that in rare 

cases exceptional circumstances of peculiar urgency may 

exist which permit a federal court to entertain an 

unexhausted claim. See Victor v. Hopkins, 90 F.3d 276, 279 

(8th Cir. 1996) (quoting Ex parte Royall, 115 U.S. 241, 252, 

6 S. Ct. 734, 740-41 (1886)); Ex parte Hawk, 321 U.S. 114, 

117, 64 S. Ct. 448, 451 (1944). The Supreme Court has 

instructed that federal courts are to "exercise discretion in 

each [habeas] case to decide whether the administration of 

justice would be better served by insisting on exhaustion or 

by reaching the merits of the petition forthwith." Granberry, 

481 U.S. at 131, 107 S. Ct. at 1673. Such circumstances 

exist when, for example, state remedies are inadequate or 

fail to afford a full and fair adjudication of the federal 

contentions raised, or where exhaustion in state court 

would be "futile." Id.; see also Slayton v. Smith, 404 U.S. 

53, 92 S. Ct. 174 (1971) (absent special circumstances, 

federal courts should dismiss habeas petitions which 

contain unexhausted claims). 

Christy and Amici argue that such "unusual 

circumstances" exist where the dismissal of a mixed

petition creates a risk that the petitioner will be executed 

before his or her federal claims can be litigated in federal 

court. They submit that should his petition be dismissed, 

Christy will be without the protection of a federal stay and 

available to the Commonwealth for execution. We partly 

agree and would never knowingly permit Christy's 

execution while his federal constitutional claims are still 

being litigated. We caution, however, that the mere risk 

that Pennsylvania courts will not stay the execution cannot 

amount to an "unusual circumstance." The appropriate 

inquiry must be whether an execution is "imminent." In 

this case, Christy's original execution was scheduled for 

March 12, 1996. On February 21, 1996, the district court 

granted Christy a stay and gave newly appointed counsel 

ninety days to prepare and file a habeas petition. When 

Christy filed his habeas petition on April 18, 1996, his 

execution date had lapsed. His execution was no longer 

imminent because the original execution warrant had

expired and no new warrant was ever issued. Pennsylvania 

 11 
law requires the reissuance of the warrant upon vacation of 

the federal stay and also permits the Pennsylvania courts to 

grant another stay for post-conviction purposes upon a 

finding that "the petitioner makes a strong showing of 

likelihood of success on the merits." 42 Pa.C.S.A. 

§ 9545(c)(2). Moreover, in this case, the Office of the 

General Counsel to the Governor of Pennsylvania has

assured us via letter submitted March 19, 1997, that 

Christy will not be executed during the pendency of this 

new round of post-conviction proceedings. Syndi L. Guido, 

Deputy General Counsel to the Governor, indicated that 

"warrants are not signed while litigation is pending or 

during any unexpired appeal period." 

To excuse exhaustion and grant a stay and abeyance 

motion, the proper inquiry must be whether an execution is 

"imminent." In deciding whether to grant a "stay and 

abeyance" motion or whether to review a mixed petition, 

district courts must focus not on the risk but on the 

actuality that state courts will refuse to stay an execution 

while federal claims are pending. If a state court has 

refused to grant a stay pending its adjudication of a 

prisoner's federal constitutional claims, such action by the 

district court would be appropriate. 

We do not think Christy has demonstrated the 

"imminent" nature of his execution. Neither side has 

presented us with any evidence that the Commonwealth 

would countenance the execution of a prisoner in Christy's 

circumstances. Therefore, Christy has not demonstrated 

"one of those rare cases where exceptional circumstances of 

peculiar urgency are shown to exist," permitting us to 

disregard the exhaustion requirement. See United States ex

rel. Kennedy v. Tyler, 269 U.S. 13, 17 (1925).3 

_________________________________________________________________ 

3. We point out that the Commonwealth may waive exhaustion of the 

Cooper claim, thereby permitting the district court to review the petition 

as filed. The district court is not required, however, to accept a waiver 

and may require state court exhaustion. See Thompson v. Wainwright, 

714 F.2d 1495, 1500-01 (11th Cir. 1983); Graham v. Johnson, 94 F.3d 

958, 970 (5th Cir. 1990). 

 12 
IV. 

Because execution is no longer imminent in this case, we 

will remand to the district court with instructions to 

dismiss. The district court's dismissal raises a question of 

whether any subsequent habeas filings on Christy's behalf 

will be considered "successive" and whether, pursuant to 

the dictates of the Antiterrorism and Effective Death 

Penalty Act of 1996, Pub.L. No. 104-132, Title I, § 106, 110 

Stat. 1214, 1220-21 (1996) [hereinafter "AEDPA"], Christy 

would be required to seek authorization from the court to 

file a petition for habeas corpus. We hold that when a prior 

petition has been dismissed without prejudice for failure to 

exhaust state remedies, no such authorization is necessary 

and the petitioner may file his petition in the district court 

as if it were the first such filing. 

Section 6 of the AEDPA amends 28 U.S.C. § 2244 to 

forbid any "second or successive" petition for collateral 

relief without the consent of the court of appeals. 28 U.S.C. 

§ 2244(b)(3)(E). The AEDPA instructs courts of appeals to 

grant this authorization only if the applicant makes a prima 

facie showing that the application satisfies the 

requirements for second or successive applications. 28 

U.S.C. § 2244(b)(3)(C). While the AEDPA requires this 

procedure for second or successive application, it does not 

define what is meant by "second" or "successive." 

Before the AEDPA amendments took effect, a petition

filed after a previously submitted petition was dismissed 

without prejudice was not considered an abuse of the writ. 

See e.g. Woods v. Whitley, 933 F.2d 321, 322 n.1 (5th Cir. 

1991); Hamilton v. Vasquez, 882 F.2d 1469, 1473 (9th Cir. 

1989); Jones v. Estelle, 722 F.2d 159, 168 (5th Cir. 1983); 

Camarano v. Irvin, 98 F.3d 44, 46 (2d Cir. 1996). The abuse 

of the writ doctrine is deeply rooted in the need for finality 

and the concerns of comity. See McCleskey v. Zant, 499 

U.S. 467, 491-92, 111 S. Ct. 1454, 1469 (1991). The

problems that the abuse of the writ doctrine seeks to avoid 

are not implicated when a petition is filed after a prior 

petition is dismissed for lack of exhaustion. See Sanders v.

United States, 373 U.S. 1, 17, 83 S. Ct. 1068, 1078 (1963) 

(holding that the doctrine of writ abuse is not implicated if 

"the same ground was earlier presented but not adjudicated 

 13 
on the merits"). Moreover, as one court has observed, 

"dismissal without prejudice of an entire petition -- 

including exhausted claims -- for failure to exhaust certain 

claims promotes the policies underlying the doctrine." 

Camarano, 98 F.3d at 46. Such a dismissal serves the 

interests of finality by discouraging piecemeal litigation. Id. 

Additionally, encouraging exhaustion promotes harmony 

between the federal and state judicial systems by giving the 

state courts the first opportunity to review state convictions 

and to correct constitutional errors. 

V. 

We will vacate and remanded to the district court with 

instructions for it to dismiss the petition. 

A True Copy: 

Teste: 

Clerk of the United States Court of Appeals

for the Third Circuit

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