                      United States Court of Appeals
                             FOR THE EIGHTH CIRCUIT
                                     _____________

                                     No. 98-2775EM
                                     _____________

Ricardo Carmichael,                        *
                                           *
                     Appellee,             * Appeal from the United States
                                           * District Court for the Eastern
       v.                                  * District of Missouri.
                                           *
Carl White,                                *
                                           *
                     Appellant.            *
                                     _____________

                             Submitted: December 17, 1998
                                 Filed: December 23, 1998
                                  _____________

Before FAGG, HEANEY, and WOLLMAN, Circuit Judges.
                          _____________

FAGG, Circuit Judge.

        Missouri prisoner Ricardo Carmichael filed this federal habeas action asserting
his 1997 probation revocation proceedings did not comply with procedural due
process. In response, the State of Missouri asserted that Carmichael had not exhausted
his state-court remedies under Missouri Supreme Court Rule 91, and that there is no
time limitation for filing a Rule 91 petition. Carmichael conceded he had mistakenly
filed his petition in federal rather than state court, and sought to have the federal action
either held in abeyance or dismissed without prejudice. The district court ordered the
action “stayed for a period of 90 days so [Carmichael] may seek habeas corpus relief
in the
Missouri Court of Appeals under . . . Rule 91.” The State appeals the order staying the
action for ninety days. We reverse and remand.

       Initially, Carmichael contends we lack jurisdiction to review the district court’s
ruling because it is not a final order. See 28 U.S.C. § 1291 (1994). The State contends
we have jurisdiction to review the ruling under the collateral order doctrine.

       Although our jurisdiction is generally limited to reviewing a district court’s final
decisions ending litigation on the merits, see id., we can immediately review a small
class of collateral orders that do not terminate the underlying lawsuit, see Cohen v.
Beneficial Indus. Loan Corp., 337 U.S. 541, 546 (1949). To qualify for appeal, a
collateral order must conclusively decide a disputed question that is important and
distinct from the case’s merits and the decision must be effectively unreviewable on
appeal from a judgment. See Munz v. Nix, 908 F.2d 267, 270 (8th Cir. 1990); see also
Coopers & Lybrand v. Livesay, 437 U.S. 463, 468 (1978); Bean v. Dormire, 10 F.3d
538, 539 (8th Cir. 1993) (per curiam).

        Applying these factors, the only circuit to consider the question has held a
district court’s order holding a habeas petition in abeyance pending exhaustion of state
remedies is an appealable collateral order. See Christy v. Horn, 115 F.3d 201, 206 (3d
Cir. 1997). We agree with the Third Circuit’s assessment and conclude the ruling in
our case falls within the collateral order doctrine. First, the order from which Smith
appeals finally resolves the disputed question of whether the district court may hold
an unexhausted habeas petition in abeyance for ninety days. See id. at 205. Contrary
to Carmichael’s contention, the ninety-day stay is not inherently tentative, but
conclusively decides that a ninety-day stay to allow pursuit of state remedies is a
permissible procedural option when a federal habeas petition contains at least one
unexhausted claim. See id.; see also Gulfstream Aerospace Corp. v. Mayacamas
Corp., 485 U.S. 271, 277 (1988). Second, this procedural question is important and
is separate from the merits of the due process issue raised in the underlying habeas

                                           -2-
action. See Christy, 115 F.3d at 205-06. Third, we could not effectively review the
stay’s propriety after Carmichael exhausts his state remedies and presents his
exhausted petition to the federal courts. See id. at 206. Because the order appealed in
this case satisfies the requirements of the collateral order doctrine, we have jurisdiction
to review the order.

        Turning to the merits, we conclude the district court lacked power to enter a
ninety-day stay for Carmichael to pursue state remedies. We have already held that a
district court has no authority to hold a habeas petition containing unexhausted claims
in abeyance absent truly exceptional circumstances, such as when state remedies are
inadequate or fail to afford a full and fair adjudication of federal claims, or when
exhaustion in state court would be futile. See Victor v. Hopkins, 90 F.3d 276, 279-80
& n.2, 282 (8th Cir. 1996), cert. denied, 117 S. Ct. 1091 (1997). Carmichael contends
Victor does not control because that case involved an indefinite stay of federal
proceedings rather than the ninety-day stay involved in this case. We hold the
principle of comity behind the decision in Victor applies equally to a ninety-day stay.



      Carmichael also asserts the record does not show his petition contains
unexhausted claims. With respect to every claim in his petition, however, Carmichael
had the burden to show that all available state remedies had been exhausted or that
exceptional circumstances existed. See Darr v. Burford, 339 U.S. 200, 218-19 (1950);
Breard v. Pruett, 134 F.3d 615, 619 (4th Cir.), cert. denied, 118 S. Ct. 1352 (1998);
Lambert v. Blackwell, 134 F.3d 506, 513 (3d Cir. 1997); Oyler v. Allenbrand, 23 F.3d
292, 300 (10th Cir. 1994); Rust v. Zent, 17 F.3d 155, 160 (6th Cir. 1994). Carmichael
did not do so. Indeed, in admitting he meant to file his federal petition in state court,
Carmichael essentially conceded his claims were not exhausted.

      In sum, we conclude the district court’s ruling staying Carmichael’s federal
habeas action for ninety days is an appealable collateral order, and the district court
should have dismissed Carmichael’s petition without prejudice for failure to exhaust

                                           -3-
state remedies. Given the State’s representations in the district court and on appeal,
Carmichael should face no problem with a time limitation for filing his Rule 91
petition in state court. We thus reverse and remand for entry of an order consistent
with this opinion.

      A true copy.

             Attest:

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




                                         -4-
