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. e du/thir dc ir c uit_1997/120Filed 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 AppellantsJohn 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

2OPINION OF THE COURT

NYGAARD, Circuit Judge

.

The district court granted the Appellee, Lawrence D uane Christy, a stay of execution and held his federal h abeas petition in abeyance pending exhaustion of a partic ular issue in state court. Arguing that the district cou rt did not have the authority to hold the Appellee's habeas pe tition in abeyance, the Commonwealth of Pennsylvania has appealed.

I.

On February 15, 1996, the Governor of Pennsylvania signed a warrant scheduling the Appellee's executio n for March 12, 1996. Christy asked the district court fo r permission to proceed in forma pauperis , for counsel to be appointed to assist him in preparing a habeas petit ion 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 Chris ty's behalf. The district court also stayed Christy's ex ecution
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 Un ited States Supreme Court announced its decision in Coop er v. Oklahoma , 116 S. Ct. 1373 (1996). In Cooper , the Supreme Court held that a state violates a defendant's righ t to due process if it requires the defendant to bear the bu rden 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 inc luded a claim alleging that the Commonwealth of Pennsylvani a violated his constitutional rights under Cooper

.

The Commonwealth of Pennsylvania answered Christy's petition on July 16, 1996, and asserted that Christ y had
failed to exhaust his state court remedies for the purported Cooper error. On August 9, 1996, Christy asked the distri ct

3court 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 co urt granted the abeyance motion and also kept the stay of execution in effect while Christy proceeded in stat e court. The Commonwealth now appeals. This case presents a number of important questions, not the least of whi ch is whether we have jurisdiction to review this order i n the first place.

II.

28 U.S.C. § 1291 usually limits our appellate juris diction 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 distric t court that ends the litigation on the merits and leaves n othing 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 or der 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 appeal ed 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 pe tition for writ of habeas corpus shall be held in abeyance pen ding his
exhaustion of state court remedies" and that "the s tay of execution entered by this court on February 21, 199 6 be and hereby is continued in effect until further ord er of this court." Clearly, this order does not resolve the ha beas case. It is not dispositive of any issue raised in Christ y's habeas petition. The district court expressly indicates th e transient nature of the order by indicating it will only rema in 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 Cohe n v.

4Beneficial 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 appealabl e under 28 U.S.C. § 1291 even though they do not terminate the underlying litigation. 337 U.S. at 546, 69 S. Ct. a t 1225-26.
The case law on the collateral order doctrine is ex tensive and its requirements are clear. We can review a col lateral 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 afin al judgment. Praxis Properties v. Colonial Sav. Bank S LA , 947 F.2d 49, 54 (3d Cir. 1991); see also In re Ford Mot or Company , 1997 WL 164190 (3d Cir. April 9, 1997). Failure to meet any of these requirements precludes a findi ng 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" t o 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 doc trine narrowly "lest the exception swallow up the salutar y general rule that only final orders be appealed." Y akowicz 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 Cohe n exception narrowly rather than expansively.").

Moreover, strict construction of the collateral ord er doctrine is designed to further the longstanding congressional policy against piecemeal appeals whic h underlies the final judgment rule. See Lusardi v. X erox Corp. , 747 F.2d 174, 177 (3d Cir. 1984).1 To guard again st the temptation to expand the doctrine's reach, the Supreme

___________________________________________________ ______________

1. In Lusardi , we stated that the final judgment rule serves a n umber of purposes including the efficient administration of scarce judicial resources, maintenance of the appropriate relations hip between the trial and appellate courts, and the protection of the jud icial process and its participants from the delay which can prove advanta geous to a wellfinanced litigant. 747 F.2d at 177 (citations omitt ed).

5Court has instructed that the question of whether o r not an

order is immediately appealable should be decided f or the entire category to which the order in question belo ngs. Digital Equip. Corp. v. Desktop Direct Inc. , 511 U.S. 853, 855, 114 S. Ct. 1992, 1994 (1994). Therefore, we no w 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 doc trine 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 determin es the disputed questions," the Supreme Court has contrast ed two types of orders: those which are "inherently tentat ive" and those which are "technically amendable, but made wi th the expectation that they will be the final word on the subject addressed." See Gulfstream Aerospace v. Mayacamas C orp. , 485 U.S. 271, 277, 108 S. Ct. 1133, 1137 (1987).

Although we are aware of no case that bears directl y on the issue whether an order holding a habeas petitio n in abeyance is conclusive for purposes of the collater al order doctrine, we draw instruction from two Supreme Cour t cases addressing the question of whether an order g ranting
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 di strict 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 contempla ted that the federal court will have nothing further to do in resolution of any substantive part of the case beca use a

___________________________________________________ ______________

2. In Colorado River Water Conservation Dist. v. Un ited States , 424 U.S. 800, 96 S. Ct. 1236 (1976), the Supreme Court held that in "exceptional circumstances," a federal district court may stay o r dismiss an action solely because of the pendency of similar litigatio n in state court. 424 U.S. at 818, 96 S. Ct. at 1246.

6district 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 resolu tion 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 t o 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 revisi t and reassess an order denying a Colorado River stay in light of subsequent events that occur during the course of t he litigation. 485 U.S. at 278, 108 S. Ct. at 1137-38 (citations omitted). If an order is not entered "with the expe ctation that it will be the final word on the subject addre ssed," 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 "revisio n [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 d iscrete legal question -- whether the district court may pr operly hold a habeas appeal in abeyance while a petitioner
exhausts certain claims in state court. The order a ppealed from herein resolves that question in the affirmati ve. Christy argues that the district court's order hold ing his habeas petition in abeyance and staying his executi on was "inherently tentative." Christy reasons that the di strict court's order was not made with the expectation tha t 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 t he 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 unexhau sted

7habeas petition, we cannot perceive of any circumst ances

in which the district court would revisit the quest ion. Because the district court undoubtedly expected tha t its order would resolve the question of whether it may hold an unexhausted habeas petition in abeyance, we conclud e 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 fr om the merits of the action." Christy submits that the ord er appealed from merely deferred resolution of the pet ition and did not resolve any important issue. The Supreme Co urt has instructed that the "importance of the right as serted has always been a significant part of [the] collate ral order
doctrine." Lauro Lines S.R.L. v. Chasser , 490 U.S. 495, 504, 109 S. Ct. 1976, 1980 (1989). Therefore, we must as sure ourselves that the issue presented herein is import ant enough to merit immediate appeal. See Praxis Proper ties

, 947 F.2d at 56.

We have held that the "importance/separateness pron g"
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 distric t 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 f ound such authority, See Beasley v. Fulcomer , No. 90-4711, 1991 U.S. Dist. LEXIS 5408 (E.D. Pa. Apr. 22, 1991); Edw ards v.

Horn , No. 1:CV-95-1876 (M.D. Pa. Feb. 21, 1996), Szucho n v. Lehman , No. 94-195E (W.D. Pa. Feb. 6, 1995), another
circuit has determined that district courts lack th e authority to hold such petitions in abeyance, Victo r v. Hopkins , 90 F.3d 276 (8th Cir. 1996). Given the important nature of capital habeas cases in general, we concl ude that this appeal presents an issue that is "important en ough in a jurisprudential sense to require an immediate

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

101.

In addition to determining whether this appeal pres ents an "important" issue, we also must decide whether t he 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 omitt ed). We do not believe that the order appealed from here in volves
"considerations that are enmeshed in the factual an d legal issues comprising the [petitioner's] cause of actio n." 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 cour t to
exhaust certain claims. Such a determination is suf ficiently ancillary to the underlying action that we need not become "enmeshed" in the merits of the dispute. We therefo re conclude that the order appealed from satisfies the "separateness prong" of the collateral order doctri ne.

C. Unreviewability

Last, to be appealable under the collateral order d octrine, 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 i nvolves "an asserted right the legal and practical value of whi ch 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 permittin g the petitioner to return to state court and exhaust par ticular issues, the order effectively destroys any appellat e review of its appropriateness. We agree. If we do not review the matter at this juncture, the Petitioner will have r eturned to state court and exhausted his claims, thereby prese nting the district court with an exhausted habeas petitio n and rendering the appropriateness of the district court 's stay

9and abeyance ruling unreviewable. We therefore find that

the district court's order holding the habeas petit ion in abeyance is "effectively unreviewable" on appeal fr om a final judgment in this case.

In summary, we find that the district court's order holding Christy's habeas petition in abeyance pendi ng exhaustion of state court remedies satisfies all th e 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 requisit e jurisdiction, we now turn to the merits of this app eal. 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 refus e a state prisoner's habeas petition unless "it appears that the applicant has exhausted the remedies available in t he courts of the State." 28 U.S.C. § 2254(b) (1988). T his "exhaustion requirement" is primarily grounded in t he "respect which federal courts have for the state ju dicial processes and upon the administrative necessities o f 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" habea s petition -- a petition which contained both exhaust ed and
unexhausted claims. The Court held that "because th e rule requiring exhaustion of all claims furthers the pur poses underlying the habeas statute . . . a district cour t 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 fi rst 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, b ut a rule of comity. Strickland v. Washington , 466 U.S. 468, 684, 104 S. Ct. 2052, 2063 (1984). The Supreme Court has indica ted that, although there is a strong presumption in fav or of exhaustion, there are also "limited circumstances u nder which the failure [to exhaust] will not act as a co mplete bar

10to 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 h as instructed that federal courts are to "exercise dis cretion in each [habeas] case to decide whether the administra tion of justice would be better served by insisting on exha ustion or by reaching the merits of the petition forthwith." Granberry

, 481 U.S. at 131, 107 S. Ct. at 1673. Such circumsta nces exist when, for example, state remedies are inadequ ate or fail to afford a full and fair adjudication of the federal contentions raised, or where exhaustion in state co urt
would be "futile." Id. ; see also Slayton v. Smith , 404 U.S. 53, 92 S. Ct. 174 (1971) (absent special circumstan ces, federal courts should dismiss habeas petitions whic h 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 i n federal court. They submit that should his petition be dism issed, Christy will be without the protection of a federal stay and available to the Commonwealth for execution. We par tly agree and would never knowingly permit Christy's
execution while his federal constitutional claims a re still being litigated. We caution, however, that the mere risk that Pennsylvania courts will not stay the executio n cannot amount to an "unusual circumstance." The appropriat e inquiry must be whether an execution is "imminent." In this case, Christy's original execution was schedul ed for March 12, 1996. On February 21, 1996, the district court granted Christy a stay and gave newly appointed cou nsel 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 lon ger imminent because the original execution warrant had expired and no new warrant was ever issued. Pennsyl vania

11law requires the reissuance of the warrant upon vac ation of

the federal stay and also permits the Pennsylvania courts to grant another stay for post-conviction purposes upo n 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, tha t 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 t hat "warrants are not signed while litigation is pendin g or during any unexpired appeal period."

To excuse exhaustion and grant a stay and abeyance motion, the proper inquiry must be whether an execu tion is "imminent." In deciding whether to grant a "stay an d abeyance" motion or whether to review a mixed petit ion,
district courts must focus not on the risk but on t he 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 acti on by the district court would be appropriate.

We do not think Christy has demonstrated the
"imminent" nature of his execution. Neither side ha s presented us with any evidence that the Commonwealt h would countenance the execution of a prisoner in Ch risty's circumstances. Therefore, Christy has not demonstra ted "one of those rare cases where exceptional circumst ances of peculiar urgency are shown to exist," permitting us to disregard the exhaustion requirement. See United St ates ex rel. Kennedy v. Tyler , 269 U.S. 13, 17 (1925).3

___________________________________________________ ______________

3. We point out that the Commonwealth may waive exh austion of the Cooper claim, thereby permitting the district court to re view the petition as filed. The district court is not required, howev er, to accept a waiver and may require state court exhaustion. See Thompso n v. Wainwright

, 714 F.2d 1495, 1500-01 (11th Cir. 1983); Graham v. Johnson , 94 F.3d 958, 970 (5th Cir. 1990).

12IV.

Because execution is no longer imminent in this cas e, we will remand to the district court with instructions to dismiss. The district court's dismissal raises a qu estion of whether any subsequent habeas filings on Christy's behalf will be considered "successive" and whether, pursua nt to
the dictates of the Antiterrorism and Effective Dea th Penalty Act of 1996, Pub.L. No. 104-132, Title I, § 106, 110 Stat. 1214, 1220-21 (1996) [hereinafter "AEDPA"], C hristy would be required to seek authorization from the co urt to file a petition for habeas corpus. We hold that whe n a prior petition has been dismissed without prejudice for f ailure to exhaust state remedies, no such authorization is ne cessary and the petitioner may file his petition in the dis trict 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 coll ateral relief without the consent of the court of appeals. 28 U.S.C. § 2244(b)(3)(E). The AEDPA instructs courts of appe als to grant this authorization only if the applicant make s 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 th is 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 dis missed without prejudice was not considered an abuse of th e 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 f or 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 S anders v.
United States , 373 U.S. 1, 17, 83 S. Ct. 1068, 1078 (1963) (holding that the doctrine of writ abuse is not imp licated if "the same ground was earlier presented but not adju dicated

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

"dismissal without prejudice of an entire petition -- including exhausted claims -- for failure to exhaus t certain claims promotes the policies underlying the doctrin e."
Camarano , 98 F.3d at 46. Such a dismissal serves the interests of finality by discouraging piecemeal lit igation. Id

. Additionally, encouraging exhaustion promotes harmo ny between the federal and state judicial systems by g iving 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 w ith instructions for it to dismiss the petition.

A True Copy:

Teste:

Clerk of the United States Court of Appeals
for the Third Circuit

14