                       United States Court of Appeals
                           FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 00-2697
                                   ___________

Robert E. Hunt, Jr.,                  *
                                      *
            Petitioner-Appellee,      *
                                      * Appeal from the United States
      v.                              * District Court for the
                                      * District of Nebraska
Frank X. Hopkins, Warden of the       *
Nebraska State Penitentiary,          *
                                      *
            Respondent-Appellant.     *
                                      *
                                 ___________

                             Submitted: March 15, 2001

                                 Filed: September 26, 2001
                                  ___________

Before BYE, JOHN R. GIBSON, Circuit Judges, and FRANK,1 District Judge.
                             ___________

BYE, Circuit Judge.

      Frank X. Hopkins (hereinafter the Warden) appeals a district court2 order that
allowed Robert E. Hunt, Jr., to dismiss his second amended petition for a writ of

      1
      The Honorable Donovan W. Frank, United States District Judge for the District
of Minnesota, sitting by designation.
      2
        The Honorable William G. Cambridge, United States District Judge for the
District of Nebraska (now retired).
habeas corpus under 28 U.S.C. § 2254. The Warden appeals that part of the order
granting Hunt leave to file a third amended petition — that will relate back to the date
of his second amended petition — after he exhausts state remedies on certain claims
included in his first amended petition. We dismiss the appeal for lack of a final,
appealable order that would allow us to exercise jurisdiction.

                                 BACKGROUND

      In 1984, a Nebraska jury found Hunt guilty of first-degree murder for strangling
and sexually assaulting Beverly Ramspott. A panel of three judges, see Neb. Rev. Stat.
§ 29-2520, sentenced Hunt to death. In 1985, the Supreme Court of Nebraska affirmed
Hunt's conviction, but vacated the death sentence. See State v. Hunt, 371 N.W.2d 708
(Neb. 1985), overruled in part by State v. Palmer, 399 N.W.2d 706 (Neb. 1986). Hunt
was later resentenced to life in prison.

       Hunt sought post-conviction relief in state court, raising an ineffective-
assistance-of-counsel claim based on concessions and derogatory comments his
attorney made during closing argument. The Supreme Court of Nebraska affirmed the
denial of post-conviction relief on June 26, 1998. See State v. Hunt, 580 N.W.2d 110
(Neb. 1998).

      In August 1998, Hunt filed a pro se petition for a writ of habeas corpus under 28
U.S.C. § 2254. In November 1998, still acting pro se, he filed a first amended petition.
Hunt made several claims that he had not raised in his state post-conviction
proceedings.3 Because Hunt's petition was "mixed" under Rose v. Lundy, 455 U.S. 509
(1982), the district court appointed counsel to assist Hunt in deciding whether to (a)


      3
       Most notably, Hunt included a prosecutorial misconduct claim that came to light
during the postconviction hearing, where the prosecutor admitted that he had directed
a law enforcement officer to alter a police report concerning Hunt's confession.

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dismiss the petition and exhaust state remedies, or (b) file a second amended petition
excluding the unexhausted claims so he could proceed with his exhausted claims.

       Hunt initially elected to proceed with his exhausted claims, and filed a second
amended petition excluding the unexhausted claims. He also filed a motion to have the
second amended petition held in abeyance while he exhausted state remedies. He
argued that our decision in Victor v. Hopkins, 90 F.3d 276 (8th Cir. 1996), which held
that a district court lacks authority to hold a mixed petition in abeyance while a
petitioner exhausts state remedies, did not apply to the second amended petition
because it was no longer "mixed." The district court found Hunt's argument persuasive
based on the reasoning of Calderon v. United States Dist. Court, which addressed
similar circumstances and held that a district court may, but is not required to, stay a
fully-exhausted petition. See 134 F.3d 981, 987-88 (9th Cir. 1998). The district court
elected not to hold Hunt's second amended petition in abeyance, however, holding that
his interests could be protected with actions less drastic than issuing a stay. (For
example, Hunt could proceed with his exhausted claims, then seek to add the
unexhausted claims when his state court proceedings finished; or Hunt could seek a
stay at a later time if it appeared the state proceeding would not be complete before the
district court reached a decision on the merits of his exhausted claims.)

        After the district court declined to issue a stay, Hunt changed course. He filed
a motion to have his second amended petition dismissed without prejudice, noting his
intention to refile all claims after exhausting state remedies. Hunt also requested that
the filing of his third amended petition be allowed to relate back under Fed. R. Civ. P.
15(c) to his timely-filed petition, to avoid a statute of limitations problem. See 28
U.S.C. § 2244(d) (providing for a one-year statute of limitations).

       After noting that Hunt's unexhausted claims may have merit, the district court
decided to grant Hunt's motion. The district court dismissed the second amended
petition, while at the same time granting Hunt leave to file a third amended petition.

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The district court indicated that the "second amended petition is dismissed, without
prejudice to filing a third amended petition which will relate back to the date of the
second amended petition in order to avoid a potential statute of limitations problem."
Finally, the district court indicated that "[t]his case shall be closed for statistical
purposes until such time as Petitioner files his third amended petition."

                                     DISCUSSION

        The Warden contends that the district court erred in granting Hunt leave to file
a third amended petition. First, the Warden argues that the district court's order thwarts
the goals Congress sought to accomplish by enacting a one-year statute of limitations
for federal habeas petitions in the Anti-Terrorism and Effective Death Penalty Act of
1996 (AEDPA). Second, the Warden argues that the district court lacked the authority
to grant prospective relation-back relief for a third amended petition, because there was
no action to which a third amended petition could relate back once the second amended
petition was dismissed.

       Hunt responds that the Warden lacks standing to bring this appeal. Hunt
contends that, at this juncture, the relief granted by the district court has not caused the
Warden a concrete and particularized injury-in-fact, but instead merely presents a
conjectural and speculative potential for injury should Hunt ever file a third amended
petition. Hunt relies primarily upon a Third Circuit decision which dismissed, for lack
of standing, an appeal brought by the Commonwealth of Pennsylvania that challenged
the type of prospective relief granted here. See Morris v. Horn, 187 F.3d 333, 338-39
(3rd Cir. 1999) (discussing its earlier unpublished order that dismissed the
Commonwealth's appeal for lack of standing). Should we disagree and determine that
the Warden has standing, Hunt urges us to hold that the district court had authority to
grant prospective relation-back relief, because he argues it is one of the few ways that
the choices available under Rose v. Lundy can be preserved in light of AEDPA's new
one-year statute of limitations. See Duncan v. Walker, 121 S.Ct. 2120, 2130 (2001)

                                            -4-
(Stevens, J., concurring) ("[E]quitable considerations may make it appropriate for
federal courts to fill in a perceived omission on the part of Congress by tolling
AEDPA's statute of limitations for unexhausted federal habeas petitions.").

       Before we can address either party's contentions, however, we must decide sua
sponte whether we have jurisdiction to entertain this appeal. See Krein v. Norris, 250
F.3d 1184, 1187 (8th Cir. 2001). The issue is whether the State has appealed from a
"final decision[] of the district court[]." 28 U.S.C. § 1291.

       A district court decision is not final, and thus not appealable, unless there is
"some clear and unequivocal manifestation by the trial court of its belief that the
decision made, so far as [the court] is concerned, is the end of the case." Goodwin v.
United States, 67 F.3d 149, 151 (8th Cir. 1995) (quotation omitted). We have held that
a dismissal order is presumptively final when the district court does not explicitly grant
the plaintiff leave to amend his complaint. See Quartana v. Utterback, 789 F.2d 1297,
1299-1300 (8th Cir. 1986). This presumption of finality erodes, however, when the
district court clearly manifests an intention to permit the plaintiff's action to continue
once new pleadings are filed. See id. Thus, when a district court grants a plaintiff
leave to amend his pleading, the court signals that the action has not been fully and
finally adjudicated on the merits, and that further proceedings will follow.
       Here, there is no clear and unequivocal manifestation by the district court that
the case was finished. Just the opposite is true. The district court explicitly granted
Hunt leave to amend by filing a third amended petition in the action. Furthermore,
while the district court dismissed the second amended petition without prejudice, it did
not dismiss the action without prejudice. Cf. Quartana, 789 F.2d at 199 ("[G]enerally,
there is no final order for purposes of appellate review where the complaint, but not the
action, is dismissed.") (quoting Local 179, United Textile Workers v. Federal Paper
Stock Co., 461 F.2d 849, 850 (8th Cir. 1972)). The district court's order only closed
the case "for statistical purposes until such time as Petitioner files his third amended
petition."

                                           -5-
       Where the district court's order clearly evinces the lack of finality of a case, as
happened here, we simply have no jurisdiction to address whether the district court had
authority to act as it did. Our resolution of the propriety of the district court's relief
must wait until after Hunt files a third amended petition (if he does) and one of the
parties calls upon us to review a "final" decision of the district court.

      We dismiss this appeal for lack of appellate jurisdiction.

      A true copy.

             Attest:

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




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