                     United States Court of Appeals
                          FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 00-3891
                                    ___________

Dennis Skillicorn,                       *
                                         *
      Petitioner - Appellee,             *
                                         * Appeal from the United States
      v.                                 * District Court for the
                                         * Western District of Missouri.
Al Luebbers,                             *
                                         *
      Respondent - Appellant.            *
                                    ___________

                               Submitted: June 13, 2001

                                   Filed: September 10, 2001
                                    ___________

Before LOKEN, HALL,* and MORRIS SHEPPARD ARNOLD, Circuit Judges.
                           ___________

LOKEN, Circuit Judge.

      Chapter 154 of the Anti-Terrorism and Effective Death Penalty Act of 1996
(“AEDPA”) provides certain procedural advantages to qualifying States in federal
habeas proceedings brought by state prisoners under sentence of death. For example,
Chapter 154 imposes a 180-day limitation period for filing a federal habeas petition,
28 U.S.C. § 2263(a), rather than the one-year filing period in Chapter 153, 28 U.S.C.
§ 2244(d)(1). A State may “opt in” to Chapter 154 by establishing “a mechanism for

      *
       The HONORABLE CYNTHIA HOLCOMB HALL, United States Circuit
Judge for the Ninth Circuit, sitting by designation.
the appointment, compensation, and payment of reasonable litigation expenses of
competent counsel in State post-conviction proceedings” and by providing “standards
of competency for the appointment of such counsel.” 28 U.S.C. § 2261(b).

       The Supreme Court of Missouri adopted Rule 29.16 on July 1, 1997, some two
weeks after that Court had affirmed the conviction and death sentence of Dennis
Skillicorn. See State v. Skillicorn, 944 S.W.2d 877 (Mo. banc), cert. denied, 522 U.S.
999 (1997). On June 30, the day before Rule 29.16 went into effect, the Office of the
Public Defender selected two attorneys to represent Skillicorn in state post-conviction
proceedings should counsel be appointed. The Circuit Court of Lafayette County,
Missouri, appointed the Office of the Public Defender to represent Skillicorn on
August 25. The Supreme Court of Missouri affirmed the denial of state post-
conviction relief on August 2, 2000.

       Skillicorn then filed motions in the district court for leave to file a federal
habeas petition in forma pauperis under 28 U.S.C. § 2254 and for appointment of
counsel. After the district court granted these motions, respondent filed a notice
advising that Missouri had opted into Chapter 154 by adopting Missouri Supreme
Court Rule 29.16 and that the State would rely on Chapter 154’s statute of limitations
in this § 2254 proceeding. Skillicorn filed a Motion for Declaratory Judgment and
Injunctive Relief, asserting that Missouri has not satisfied the opt-in requirements of
Chapter 154. The district court granted the motion on the sole ground that Rule 29.16
was not in effect on June 30, 1997, when the Public Defender selected Skillicorn’s
state post-conviction counsel. Respondent appeals. We reverse.

                              I. A Jurisdiction Issue.

       Relying on Calderon v. Ashmus, 523 U.S. 740 (1998), respondent first argues
that the district court lacked jurisdiction to grant declaratory and injunctive relief
because Skillicorn has not yet filed a federal habeas petition and his motion therefore

                                         -2-
did not present a justiciable case or controversy under Article III of the Constitution.
In Calderon, a class of California death row inmates sought an order declaring that
Chapter 154 would not apply to their future federal habeas proceedings. The
Supreme Court ordered the complaint dismissed, concluding that a declaratory
judgment action seeking “to gain a litigation advantage by obtaining an advance
ruling on an affirmative defense” does not satisfy Article III:

      Any judgment in this action . . . would not resolve the entire case or
      controversy as to any one of [the class members], but would merely
      determine a collateral legal issue governing certain aspects of their
      pending or future suits.

523 U.S. at 747. Respondent argues that the relief granted Skillicorn suffers from this
same Article III defect. We disagree.

       There are important differences between Calderon and this case. Calderon was
a purported class action affecting numerous California death row inmates, and
California had not yet asserted a Chapter 154 defense in any class member’s federal
habeas proceeding. This case, on the other hand, involves the application of Chapter
154 to a specific habeas petitioner who has exhausted his state post-conviction
remedies. Moreover, Skillicorn has been granted i.f.p. status and appointment of
counsel in federal court, and respondent has filed a notice of intent to rely on Chapter
154 in that pending district court proceeding, which has been assigned Western
District of Missouri docket number 00-MC-8002. Respondent argues there is no case
or controversy because Skillicorn has not yet filed a federal habeas petition. But that
is of no significance. The filing of a habeas petition is not required to confer post-
conviction jurisdiction over a state inmate in federal court. See McFarland v. Scott,
512 U.S. 849, 859 (1994) (motion for appointment of counsel under 21 U.S.C.
§ 848(q) confers jurisdiction to grant a stay of execution under 28 U.S.C. § 2251).



                                          -3-
       In one important respect, Skillicorn’s motion for injunctive and declaratory
relief was inconsistent with Calderon. That decision confirmed that the Declaratory
Judgment Act may not be used to obtain an advance ruling on an affirmative defense
that would not resolve a pending or future case or controversy. But in this case,
granting declaratory relief did not create a jurisdictional defect, it merely raised a
question as to the appropriate remedy. Under McFarland v. Scott, the district court
acquired habeas jurisdiction when it granted Skillicorn i.f.p. status and appointed
counsel. The court then had jurisdiction to enter the order being appealed in this
habeas proceeding. Moreover, it was a sound exercise of the court’s discretion to
address the applicability of Chapter 154 early in the habeas case, because this is an
important issue that may require a “relatively expeditious judicial answer” capable
of interlocutory appellate review. Calderon, 523 U.S. at 750 (Breyer, J., concurring).
Indeed, respondent concedes that the district court could have decided the issue in a
scheduling order, as was done in Smith v. Bowersox, 159 F.3d 345, 347 n.2 (8th Cir.
1998), cert. denied, 525 U.S. 1187 (1999).

       We agree with respondent that resolving this issue in a scheduling order is a
far more appropriate remedy than granting declaratory or injunctive relief. A
scheduling or other form of pretrial order avoids misuse of the Declaratory Judgment
Act, and it avoids characterizing as an injunction an interlocutory ruling that may or
may not be appropriate for immediate appellate review under the collateral order
doctrine or by discretionary interlocutory appeal under 28 U.S.C. § 1292(b). But the
district court nonetheless had jurisdiction to enter the order being appealed. That
order did not violate the Eleventh Amendment, as respondent further suggests. It was
entered in a § 2254 habeas proceeding, and the Eleventh Amendment does not bar
habeas relief against state officials. See, e.g., Ex Parte Royall, 117 U.S. 241, 249
(1886). Accordingly, we reject respondent’s jurisdiction arguments and turn to the
merits of the district court order.




                                         -4-
                                   II. The Merits.

       Chapter 154 applies if Missouri has established a mechanism for the
appointment, compensation, and payment of competent counsel in post-conviction
proceedings by indigent prisoners in capital cases. Other circuits have assumed that
Chapter 154 will apply to a particular federal habeas petitioner if the State had a
satisfactory mechanism in place at the time the petitioner’s state post-conviction
counsel was appointed by the state courts. See Tucker v. Catoe, 221 F.3d 600, 604
(4th Cir.), cert. denied, 121 S. Ct. 661 (2000); Ashmus v. Woodford, 202 F.3d 1160,
1165 (9th Cir.), cert. denied, 513 U.S. 916 (2000). As the court said in Wright v.
Angelone, 944 F. Supp. 460, 463 (E.D. Va. 1996):

             Whether a state’s system satisfies the requirements of [28 U.S.C.
      § 2261] should be determined by examining the system as it existed at
      the time a petitioner first received appointment of counsel in the post-
      conviction process. It is at this time that a petitioner is first subject to
      the state’s procedures, and would therefore be entitled to enjoy the
      protections of the state’s system.

      Here, the district court ruled that Chapter 154 does not apply because Missouri
Supreme Court Rule 29.16 was not in place until the day after the Office of the Public
Defender selected attorneys to represent Skillicorn in his state post-conviction
proceedings, a selection made prior to the appointment of counsel by the state court.
The district court gave no reason supporting this departure from the above-cited cases
from other circuits. It simply relied on an earlier decision of the Eastern District of
Missouri, which likewise gave no reason why the critical date should be the date
counsel is selected, rather than the date counsel is appointed. See Hall v. Luebbers,
No. 00-CV-0887 (E.D. Mo. Order filed July 26, 2000). On appeal, Skillicorn has not
noted any relevant significance to the date the Public Defender selects an attorney
who may subsequently be appointed. Because the mechanism required by Chapter
154 concerns the “appointment, compensation, and payment” of competent counsel

                                          -5-
for state post-conviction proceedings, we conclude Chapter 154 applies if a
satisfactory mechanism was in place when post-conviction counsel was appointed.

       Accordingly, the district court erred in failing to reach the merits of the issue
whether Missouri Supreme Court Rule 29.16 is a satisfactory opt-in mechanism.
Although Skillicorn has argued the merits on appeal, the issue should be addressed
in the first instance by the district court. Skillicorn further argues that we decided
that Rule 29.16 does not satisfy the Chapter 154 requirements in Kreutzer v.
Bowersox, 231 F.3d 460, 462 (8th Cir. 2000), petition for cert. filed, (U.S. June 11,
2001) (No. 00-10520). We disagree. Kreutzer involved a habeas petitioner whose
state post-conviction proceedings were entirely completed before Rule 29.16 took
effect on July 1, 1997. Thus, Kreutzer did not decide the question whether Missouri
has established a mechanism that satisfies the opt-in requirements of Chapter 154 for
habeas petitioners whose state post-conviction counsel were appointed after July 1,
1997. On remand, assuming the parties adhere to the positions they have urged to
this court, the district court is directed to take up the merits of that question.

     The district court’s Order dated October 31, 2000, is reversed, and the case is
remanded for further proceedings not inconsistent with this opinion.

      A true copy.

             Attest:

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




                                          -6-
