     Case: 15-30064   Document: 00513555378     Page: 1   Date Filed: 06/20/2016




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT
                                                                 United States Court of Appeals
                                                                          Fifth Circuit
                                 No. 15-30064                           FILED
                                                                    June 20, 2016

JESSIE J. GRACE, III,                                              Lyle W. Cayce
                                                                        Clerk
             Petitioner - Appellee

v.

DARREL VANNOY, WARDEN, LOUISIANA STATE PENITENTIARY,

             Respondent - Appellant




                Appeal from the United States District Court
                   for the Eastern District of Louisiana


Before HIGGINBOTHAM, DENNIS, and CLEMENT, Circuit Judges.
EDITH BROWN CLEMENT, Circuit Judge:
      Jessie Grace filed a habeas petition in federal court, challenging his
state-court conviction for second-degree murder. During the federal habeas
proceedings, the district court discovered that Grace potentially had additional
habeas claims against the State of Louisiana. Because dismissing Grace’s
petition to allow him to exhaust those new claims in state court would cause
his already-exhausted claims to become time-barred, the district court entered
a stay pursuant to Rhines v. Weber, 544 U.S. 269 (2005), in which the Supreme
Court addressed this very dilemma. The State appeals the district court’s order
granting the stay, but we DISMISS the appeal for lack of appellate jurisdiction.
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                                  No. 15-30064
                                        I.
      Grace was convicted in 1994 of second-degree murder. He has been
pursuing post-conviction relief ever since. After exhausting several claims in
Louisiana state court, he filed a habeas petition in federal court. The district
court held an evidentiary hearing, during which the district court reviewed in
camera the district attorney’s file on Grace. On review of the file, the district
court concluded that the grand jury testimony revealed potential habeas claims
that were previously unavailable to—and were thus unexhausted by—Grace,
who had not previously had access to that testimony. Accordingly, the district
court recognized that if Grace were to amend his petition to add his
unexhausted claims, it would be a “mixed” petition (containing both exhausted
and unexhausted claims). Dismissing his petition while he exhausted his new
claims in state court would cause his previously exhausted claims to become
time-barred, so the district court stayed his petition sua sponte pursuant to
Rhines v. Weber, 544 U.S. 269 (2005). The State appealed the stay.
      Grace moved to dismiss the appeal for lack of jurisdiction. A prior panel
of this court granted the motion and dismissed the appeal, holding that the
district court’s order granting the stay was not an appealable collateral order.
In the prior panel’s view, the order was not an “important questio[n],” nor
would it be “effectively unreviewable on appeal from the final judgment.” Grace
v. Cain, 624 F. App’x 169, 171-72 (5th Cir. 2015) (per curiam) (unpublished),
reh’g granted, opinion withdrawn, No. 15-30064, 2016 WL 104339 (5th Cir.
Jan. 7, 2016) (per curiam). The prior panel also rejected the State’s petition for
mandamus. Id. at 170 n.1.
      The State filed a petition for rehearing en banc, and this court requested
a response from Grace. On reconsideration, the prior panel treated the petition
for rehearing en banc as a petition for panel rehearing, granted that motion,
and withdrew its order dismissing the appeal. Grace, 2016 WL 104339, at *1.
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As a result, the case was sent to this panel and the motion to dismiss was
carried with the case. Id.
                                        II.
      Grace argues that we lack appellate jurisdiction because the district
court’s stay order is neither an appealable final order nor an appealable
collateral order. The State primarily contends that the order is an appealable
collateral order. Although courts of appeals generally have jurisdiction only
over final orders, a “small class” of collateral orders are “too important to be
denied immediate review.” Mohawk Indus., Inc. v. Carpenter, 558 U.S. 100,
106, 116 (2009). That “small category includes only decisions that are
conclusive, that resolve important questions separate from the merits, and that
are effectively unreviewable on appeal from the final judgment in the
underlying action.” Id. at 106. All three requirements must be satisfied for
appellate jurisdiction to exist. Id. at 107.
      We assume, without deciding, that the question here has been
conclusively determined and that it is separate from the merits. But it is not
sufficiently important or effectively unreviewable under the collateral-order
doctrine. The sole issue presented in this appeal is whether the district court
abused its discretion in granting the stay—whether the stay should have been
granted is the only question “resolved” by the district court that the State
challenges. Thus, the inquiry under the collateral-order doctrine is whether
that question is an “important questio[n] separate from the merits . . . that [is]
effectively unreviewable on appeal from the final judgment.” Mohawk, 558 U.S.
at 107. Rhines v. Weber, standing alone, did not affect the importance of that
question. The issue is not whether the district court can stay a habeas
petition—all agree that the district court can do so under Rhines—it is whether
the district court abused its discretion in doing so here.


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      The Supreme Court has explained that, under the collateral-order
doctrine, importance and unreviewability are inseparable inquiries. See
Mohawk, 558 U.S. at 107 (explaining that requirement of “sufficiently strong”
justification for immediate appeal “finds expression” in importance and
unreviewability conditions). Bare unreviewability does not suffice; “the
decisive consideration is whether delaying review until the entry of final
judgment ‘would imperil a substantial public interest’ or ‘some particular value
of a high order.’” Id. (noting that the unreviewability inquiry “simply cannot
be answered without a judgment about the value of the interests that would be
lost” without immediate appeal); cf. id. (rejecting argument that order
requiring disclosure of purportedly privileged material was appealable
collateral order). So even if a ruling “may burden litigants in ways that are
only imperfectly reparable by appellate reversal of a final district court
judgment,” that alone “has never sufficed.” Id. (internal quotation marks
omitted). Indeed, “the chance that the litigation at hand might be speeded, or
a ‘particular injustic[e]’ averted,” is insufficient. Id. To sum up, whether a
question is unreviewable for purposes of the collateral-order doctrine depends
on a value judgment about what is lost unless the party is permitted to
immediately appeal.
      “Absent a Moses Cone situation, stay orders rarely satisfy [the collateral-
order] requirements, and therefore, are usually not reviewable as collateral
orders.” Kershaw v. Shalala, 9 F.3d 11, 14 (5th Cir. 1993). This case does not
present a Moses Cone situation, and that fact is also critical to understanding
why Johnson v. State of Texas, 878 F.2d 904 (5th Cir. 1989)—on which the
State heavily relies—is distinguishable.
      In Moses H. Cone Memorial Hospital v. Mercury Construction Corp., one
party to a construction dispute, Mercury, wanted to arbitrate and the other,
Moses Cone, did not. 460 U.S. 1, 7-8 (1983). Moses Cone sought a declaratory
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                                      No. 15-30064
judgment and an injunction in state court to block arbitration, while Mercury
filed an action in federal court to compel arbitration. Id. The issue in both the
federal and state cases was identical: whether the parties had to arbitrate. Id.
The federal district court stayed the case pending the state court’s resolution
of that issue, so Mercury appealed. Id.
       The Supreme Court held that the district court’s stay order was
appealable under the collateral-order doctrine. Id. at 13. The Court explained
that the district court’s stay order “would be entirely unreviewable if not
appealed now,” because “[o]nce the state court decided the issue of
arbitrability, the federal court would be bound to honor that determination as
res judicata.” Id. at 12. Put another way, “the res judicata effect of the state
proceedings meant that the denial of an immediate appeal would end the
federal case. There would be no more merits over which to litigate.” EEOC v.
Neches Butane Prods. Co., 704 F.2d 144, 151 (5th Cir. 1983) (discussing Moses
Cone). Not only would the propriety of the stay be unreviewable, but “[t]he
immediate prospect of an adverse and final ruling on the merits clearly
presented the most extreme example of the kind of important and irreparable
loss that would justify an otherwise impermissible interlocutory appeal . . . .”
Id. at 150; see Kershaw, 9 F.3d at 14 n.4 (noting that, as with other abstention
doctrines, result of stay order in Moses Cone was that “the resolution of the
state case necessarily terminate[d] the federal case”). 1
       This case does not present a Moses Cone situation. Here, the district
court stayed proceedings to permit Grace to exhaust his claims in state court
before returning to federal court. Unlike in Moses Cone, the issues before the
federal and state courts are not identical. Resolution of the state case will not



       1Indeed, that is why the Court also held that the order was an appealable final order
under section 1291. 460 U.S. at 8-10.
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“necessarily terminat[e] the federal case”; the state case does not present “the
immediate prospect of an adverse and final ruling on the merits” of Grace’s
federal habeas petition; and it will not have any res judicata effect. Kershaw,
9 F.3d at 14 n.4; see Neches Butane, 704 F.2d at 150, 151. And unlike in Moses
Cone, “the practical effect” of the district court’s order is not the same as a
dismissal—once Grace exhausts his claims in state court (assuming he does
not obtain post-conviction relief), he will return to federal court and the stay
will be lifted. 2 460 U.S. at 13.
       Whether the state court or the federal court will have the final say on
the merits of Grace’s federal habeas petition is simply not at issue, so staying
the case to permit the requisite state-court exhaustion does not implicate the
same concerns as in Moses Cone. While the case is stayed, the state court here
is addressing Grace’s unexhausted potential claims, which are not even
asserted in his federal habeas petition. The state court is not addressing the
already-exhausted claims in Grace’s federal habeas petition—or, put simply, is
not addressing the merits of this case. Thus, Moses Cone does not apply. See
Neches Butane, 704 F.2d at 151 (holding that order was not appealable
collateral order where petitioner was not presented “with the possibility of an
important and irreparable res-judicata-mandated loss on the merits of the
principal case”). “Indeed, the only real point of commonality between Moses
Cone and this case appears to be the common use of the word ‘stay.’” Id.
       The differences between Moses Cone and this case also illustrate why
Johnson is distinguishable. 878 F.2d 904. Johnson sued Texas and other
associated defendants under 42 U.S.C. § 1983, and the district court stayed his
case “pending his exhaustion of state remedies by way of habeas corpus


       2 In fact, Grace would be faced with an effective dismissal if the district court had not
stayed the case. See Rhines, 544 U.S. at 275-76 (explaining dilemma presented by mixed
petitions).
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                                       No. 15-30064
proceedings.” Id. at 905. Johnson appealed, disputing that he was required to
exhaust his habeas remedies. Id. Defendants moved to dismiss the appeal.
Relying on Moses Cone, this court denied the motion, holding that the stay
order was an appealable collateral order. 3 Id. at 905-06. Importantly, the court
framed the question on appeal as whether Johnson was in fact required to
exhaust his state remedies before pursuing his § 1983 suit. Id. at 905 (“The
disputed question is whether the claims made in the § 1983 suit are claims
which must be first made the subject of habeas corpus proceedings and the
exhaustion of state remedies in those proceedings.”). Without an interlocutory
appeal, Johnson would have to exhaust those remedies and, on appeal from
final judgment, the question whether he was truly required to exhaust would
be moot. Id. As in Moses Cone, a legal question bearing on the merits of his
case would be irreversibly determined by the state court as a result of the stay.
The federal court was thus deferring to the state court on the merits of
Johnson’s case. See Dresser v. Ohio Hempery Inc., 122 F. App’x 749, 755 (5th
Cir. 2004) (per curiam) (unpublished) (“As the district court’s stay order is
inapposite to the complete abdication of federal jurisdiction that was present
in Moses Cone, the stay in favor of the federal administrative proceedings here
does not fall into that narrow class of cases in which the collateral order
doctrine applies.”).
       But here, all agree that Grace must obtain a ruling from the state court
before returning to federal court. The State does not dispute that he must
exhaust his newly discovered potential claims before presenting them in
federal court; it merely argues that those claims are meritless and thus that


       3 Since Johnson was decided, this court has sometimes interpreted Moses Cone more
narrowly than the court did in Johnson. See, e.g., McDermott Int’l, Inc. v. Lloyds Underwriters
of London, 944 F.2d 1199, 1203 (5th Cir. 1991) (explaining that Moses Cone “established that
a district court’s stay that effectively allows a state court to decide the question of
arbitrability is an appealable collateral order”).
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                                      No. 15-30064
the stay is a waste of time. But the State does not risk losing in federal court
if it loses in state court. Johnson, by contrast, did not acknowledge the district
court’s authority to send his litigation to state court—he disputed that he was
required to exhaust his habeas remedies before proceeding. Without an
interlocutory appeal, Johnson would have been forced to do something—
exhaust his state remedies—that he argued he was not required to do. Here,
without an interlocutory appeal, the State is forced only to wait while Grace
does something—exhaust his state remedies—that the State agrees Grace
must do.
       As in Moses Cone, the stay in Johnson had the practical effect of a
dismissal: “[I]t placed Johnson in the same situation as if there had been
dismissal without prejudice in that he could not return to federal court with
his § 1983 claims until he had exhausted state remedies as ordered by the
district court.” 878 F.2d at 906. Not so here. If the district court had instead
dismissed Grace’s petition because of the unexhausted claims, AEDPA’s
statute of limitations likely would have barred him from returning to federal
court. That dilemma is precisely what the Supreme Court sought to cure by
permitting district courts to stay mixed petitions. 4
       Both Moses Cone and Johnson allowed interlocutory appeals because,
without one, a state court decision would moot a legal question in the
appellant’s federal case. Here, the only question mooted in the absence of an
appeal is whether the district court abused its discretion by granting the stay,
an issue that does not affect the merits of Grace’s claims. That is the same
question mooted every time a court of appeals refuses to exercise collateral-




       4 In fact, Grace could refuse to prosecute the unexhausted claims, leaving only
exhausted claims in his petition—vitiating the need for a stay. He thus need not wait for the
state court before returning to federal court.
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                                       No. 15-30064
order jurisdiction over a discretionary stay. For all these reasons, Johnson does
not control. 5
       The only harm to the State caused by a refusal to exercise appellate
jurisdiction is that the litigation might be prolonged. True, the State has an
interest in “reduc[ing] delays in the execution of state and federal criminal
sentences, particularly in capital cases.” Rhines, 544 U.S. at 276. Yet in Rhines
itself, the Supreme Court recognized that stays of mixed petitions were
“compatible with AEDPA’s purposes” in the limited circumstances it outlined.
Id. In those circumstances, which the district court found to exist here, “the
petitioner’s interest in obtaining federal review of his claims outweighs the
competing interests in finality and speedy resolution of federal petitions.” Id.
at 278. And a district court, in issuing Rhines stays, already takes delay into
account because it must find that the petitioner is not employing dilatory
tactics. Id. Thus, the Supreme Court implicitly de-emphasized the importance
of the state’s interests in finality and speedy resolution of mixed federal
petitions. If those interests do not outweigh a petitioner’s interest in obtaining
federal review, it is hard to see how they constitute “substantial public
interest[s]” or “value[s] of high order” such that they merit interlocutory
review. Mohawk, 558 U.S. at 107.
       After all, the “chance that the litigation at hand might be
speeded . . . does not provide a basis for jurisdiction” under the collateral-order
doctrine. Id. The State’s interests here are not appreciably more valuable than




       5 Although this case and Johnson both involve determinations by the district court
that state habeas claims be exhausted for federal litigation to proceed, the interests lost in
the absence of an interlocutory appeal differ. Johnson’s argument that he was not required
to exhaust would be mooted, while here the State agrees that Grace is required to exhaust.
The only argument of the State that is mooted without an appeal is whether the district court
abused its discretion in granting the stay—not whether the district court could grant the
stay.
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                                        No. 15-30064
every other litigant’s interest in interlocutory review of a garden-variety order
staying his case. (Indeed, Grace was sentenced to life in prison; he is not
delaying execution of a capital sentence.) As a result, this appeal does not
present an “important questio[n] separate from the merits” that is not
“‘adequately vindicable’ or ‘effectively reviewable’” on appeal from final
judgment; the stay order merely “burden[s] [the State] in ways that are only
imperfectly reparable by appellate reversal of a final district court judgment.” 6
Id. That is insufficient. Id.; cf. Matter of Rupp & Bowman Co., 109 F.3d 237,
240 (5th Cir. 1997) (“Although . . . delaying review of the abstention
decision . . . may cause [the parties] additional litigation-related expenses, we
do not view such delays as sufficient to convey jurisdiction under the collateral
order doctrine.”).
       A few additional points merit discussion. In one sense, a decision to stay
litigation will never be reviewable on appeal because we would not have the
chance to review the appropriateness of the stay—the question would be moot
on appeal from final judgment. That, however, is true of all stays. Cf. Neches


       6 Lewis v. Beddingfield, 20 F.3d 123 (5th Cir. 1994) (per curiam), on which the State
also relies, merits only a brief mention. There, as in Johnson, Lewis filed a § 1983 suit and
the district court stayed the case pending his state criminal case. Id. at 124. On appeal, this
court stated that “[f]or purposes of appellate jurisdiction, the district court’s decision to stay
a suit pending state court proceedings is a final order.” Id. Lewis is distinguishable for the
same reasons as Johnson. Although the court in Lewis did not rely on Moses Cone’s holding
that the stay was a final order, that holding cannot be defensibly extended to the
circumstances presented here. See Moses Cone, 460 U.S. at 8-10 (noting that stay order would
put party “effectively out of court” because of the res judicata effect of the state court’s
decision).
        Nor are Johnson and Lewis in tension. They present alternative holdings. In Moses
Cone, the Supreme Court held that the district court’s stay order was a final order under
section 1291 and that, even if it were not, it was an appealable collateral order. Similarly, in
Lewis, the court held that the stay order was a final order; in Johnson, the court did not
address that question but instead held that it was an appealable collateral order. We thus
read Lewis and Johnson together to represent the same alternative holdings as Moses Cone.
What is more, whether this appeal is a final order or a collateral order is not dispositive; if it
is one or the other we have jurisdiction. This appeal thus does not present the question of
whether it is one versus the other.
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                                       No. 15-30064
Butane, 704 F.2d at 151 (noting that the unreviewability element regarding
discovery order “does not differ from the probable unreviewability of virtually
any discovery order” and dismissing for lack of jurisdiction). Bare
unreviewability, without more, is not sufficient—if it were, every stay would be
reviewable. See, e.g., id. at 148 (collateral-order doctrine “requires some
showing of extraordinary harm”); see also 15A Wright & Miller, Fed. Prac. &
Proc. § 3914.13 (2d ed. 2016) (noting that stay decisions are not normally
reviewed on interlocutory appeal). The State’s interest in speeding this
litigation does not sufficiently distinguish the stay here from any other
discretionary stay that is unreviewable on interlocutory appeal.
       Whether the district court’s exercise of discretion must be reviewable on
appeal does not speak to whether it must be reviewable on interlocutory appeal.
Typically, orders reviewable for abuse of discretion are not appealable under
the collateral-order doctrine. See 15A Wright & Miller, Fed. Prac. & Proc.
3911.5, at 433-34 (2d ed. 2016) (“At times it is pointed out that collateral order
appeal is unsuitable with respect to matters of discretion. That is a wise
warning . . . .”). Absent interlocutory appeals of Rhines stays, moreover, we will
still be able to prevent or remedy trial court abuses that undermine AEDPA,
such as staying federal habeas claims for plainly unmeritorious state habeas
exhaustion or granting excessively long stays. Abusive stay orders may be
reviewable pursuant to a mandamus petition, if they involve a clear abuse of
discretion and otherwise satisfy the writ’s requirements. 7



       7  In Rhines itself, the state appealed a stay—with no indication from either the Eighth
Circuit or the Supreme Court of a jurisdictional problem—and the Supreme Court vacated
and remanded to the Eighth Circuit to determine “whether the District Court’s grant of a
stay . . . constituted an abuse of discretion.” 544 U.S. at 279. But on remand, the Eighth
Circuit remanded to the district court to consider the factors outlined by the Supreme Court.
The district court re-entered the stay, and the state did not appeal again. The Eighth Circuit
thus never addressed the jurisdictional question or reviewed the stay for abuse of discretion.
See Thompson v. Frank, 599 F.3d 1088, 1090 n.1 (9th Cir. 2010) (per curiam) (explaining that
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       A final note: Since Rhines was decided, two of our sister circuits have
addressed whether Rhines stays are appealable under the collateral-order
doctrine, and have answered in the negative. See Howard v. Norris, 616 F.3d
799, 803 (8th Cir. 2010) (holding that order granting Rhines stay is not
appealable collateral order); Thompson v. Frank, 599 F.3d 1088, 1090 (9th Cir.
2010) (per curiam) (same). We join the Eighth and Ninth Circuits and hold that
orders granting Rhines stays are not appealable collateral orders. 8
                                             III.
       For the reasons described above, we DISMISS this appeal for lack of
jurisdiction and DENY the State’s alternative petition for mandamus.




assumption of jurisdiction in Rhines is not binding because jurisdictional question was never
addressed, and noting that Rhines pre-dated Mohawk’s clarification of the collateral-order
doctrine).
       8 The State requests in the alternative that the court treat its appeal as a petition for

mandamus. We may provide mandamus relief “only [in] exceptional circumstances
amounting to a judicial usurpation of power or a clear abuse of discretion.” Cheney v. U.S.
Dist. Ct. for the Dist. of Columbia, 542 U.S. 367, 380 (2004) (internal citations and quotation
marks omitted). But exceptional circumstances do not exist here. The district court did not
usurp any power; Rhines stays are permissible if justified by the circumstances. And we do
not perceive any clear abuse of discretion. We thus deny the State’s alternative petition for
mandamus.
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