     Case: 15-30064      Document: 00513170899         Page: 1    Date Filed: 08/26/2015




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                    No. 15-30064                         United States Court of Appeals
                                  Summary Calendar                                Fifth Circuit

                                                                                FILED
                                                                          August 26, 2015
JESSIE J. GRACE, III,                                                      Lyle W. Cayce
                                                                                Clerk
              Petitioner - Appellee

v.

BURL CAIN, WARDEN, LOUISIANA STATE PENITENTIARY,

              Respondent - Appellant




                   Appeal from the United States District Court
                      for the Eastern District of Louisiana
                             USDC No. 2:02-CV-3818


Before DAVIS, CLEMENT, and COSTA, Circuit Judges.
PER CURIAM:*
       We consider whether we have jurisdiction over an interlocutory appeal
challenging a district court’s decision to stay a section 2254 proceeding while
the petitioner exhausts new claims in state court.




       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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                                            I
      Since his 1994 conviction for second-degree murder, Petitioner Jessie
Grace has been pursuing postconviction relief. After the state courts denied
his requests for relief, Grace filed a petition for writ of habeas corpus in federal
court in 2012. The district court held an evidentiary hearing in which the State
of Louisiana was required to turn over a copy of the district attorney’s file on
the case. The file had not previously been disclosed because the State believed
it had been lost. Although the district attorney’s office continued to refuse
disclosure of the file to Grace, the district court conducted an in camera review
of it and concluded that “portions of the grand jury testimony must be disclosed
to Petitioner because the testimony reveals the existence of potential habeas
claims previously unavailable to Petitioner.”           ROA.2546.      Specifically, the
district court “believe[d] that Petitioner may have unexhausted Brady, Napue,
and Giglio claims.”       Id. (citations omitted).      Because dismissing Grace’s
pending petition while he exhausted his new claims in state court would cause
his previously exhausted claims to become time barred, the district court
stayed the petition pursuant to Rhines v. Weber, 544 U.S. 269 (2005). The
State appeals the stay. Grace now moves to dismiss the State’s appeal for lack
of jurisdiction, arguing that the district court’s stay is an unappealable
collateral order.
                                           II
      The State primarily argues that the district court’s stay order is a
collateral order subject to appeal or, in the alternative, that this court should
treat its appeal as a petition for mandamus. 1               Courts of appeal have


      1   The court may provide mandamus relief “only [in] exceptional circumstances
amounting to a judicial usurpation of power or a clear abuse of discretion.” See Cheney v.
U.S. Dist. Ct. for D.C., 542 U.S. 367, 380 (2004) (internal citations and quotation marks
omitted). The district court did neither in this case and thus we address only the State’s
collateral order argument.
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jurisdiction to review “final decisions of the district courts.” 28 U.S.C. § 1291.
Stays, which “often are used to regulate the court’s own proceedings or to
accommodate the needs of parallel proceedings,” are generally “no more
appealable than other interlocutory procedural orders.” 15A Charles Alan
Wright & Arthur R. Miller, Fed. Prac. & Proc. § 3914.13 (2d ed.). Occasionally,
however, a “small class” of collateral orders are “too important to be denied
immediate review.” See Mohawk Indus., Inc. v. Carpenter, 558 U.S. 100, 106,
103 (2009) (internal quotation marks omitted). 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 (internal citation omitted). All
three requirements must be satisfied for appellate jurisdiction to exist. Id. at
107.
        Even assuming that the district court “conclusively determine[d] the
disputed question” of whether the district court acted within its discretion by
granting a stay pursuant to Rhines, as the State contends, it did not resolve an
important question separate from the merits that requires immediate review.
See Shipes v. Trinity Indus., Inc., 883 F.2d 339, 342 (5th Cir. 1989); see also
Mohawk Indus., 558 U.S. at 107 (“The justification for immediate appeal must
. . . be sufficiently strong to overcome the usual benefits of deferring appeal
until litigation concludes. This requirement finds expression in [the second
and third] of the three traditional Cohen conditions.”).       In support of its
argument, the State cites Christy v. Horn, 115 F.3d 201 (3d Cir. 1997), a
factually similar case in which the court found appealable the district court’s
stay of a habeas case pending exhaustion in state court. But after the Third
Circuit ruled in Christy, the Supreme Court decided Rhines v. Weber, which
made clear that the practice of staying a habeas petition while a petitioner


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exhausts state court remedies is proper. See 544 U.S. at 277. 2 Since then,
whether the district court can stay a habeas petition pending exhaustion is no
longer an “important” question. See Mohawk, 558 U.S. at 107 (“The second
condition insists upon ‘important questions separate from the merits.’”
(emphasis in original and internal citation omitted)). Moreover, the State’s
challenge to the stay is intertwined with the procedural and substantive merits
of Grace’s habeas petition. When the district court granted the stay pursuant
to Rhines, it considered whether the grand jury testimony revealed potentially
meritorious habeas claims. On appeal from that stay, the State argues that
those claims are meritless. Thus, to decide whether the stay was proper, we
would also have to consider whether the district court correctly determined
that the grand jury testimony revealed meritorious habeas claims.
      As for whether the stay would be “effectively unreviewable on appeal
from the final judgment,” the Supreme Court recently explained that the
“crucial question” is “not whether an interest is important in the abstract; it is
whether deferring review until final judgment so imperils the interest as to
justify the cost of allowing immediate appeal of the entire class of relevant
orders.” Id. at 109. The State relies on Moses H. Cone Memorial Hospital v.
Mercury Construction Corp., 460 U.S. 1 (1983), an abstention case. But the res
judicata issues that arise in abstention cases do not exist in this case because
habeas petitioners are required to exhaust state remedies before turning to the
federal courts for relief. See 28 U.S.C. § 2254(b)(1)(A); see also Stanley v.
Chappell, 764 F.3d 990, 995–96 (9th Cir. 2014) (distinguishing stay in habeas
case from a stay that had as its “sole purpose and effect . . . to surrender



      2   Even before Rhines, staying a “mixed” habeas petition was common practice in the
district courts and it remains so today. See, e.g., Georgetown Law Journal Annual Review of
Criminal Procedure, Habeas Relief for State Prisoners, 36 GEO. L.J. ANN. REV. CRIM. PROC.
875, 890 n.2685 (2007) (collecting cases from most circuits).
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jurisdiction of a federal suit to a state court” (quoting Moses H. Cone, 460 U.S.
at 10 n.11)); Swanson v. DeSantis, 606 F.3d 829, 834 (6th Cir. 2010) (same).
And although the State argues that this court should review the stay to hasten
this habeas case that has been pending since 2003, the further delay that the
stay will impose is insufficient to invoke the collateral order doctrine. See
Mohawk, 558 U.S. at 107 (“As long as the class of claims, taken as a whole, can
be adequately vindicated by other means, the chance that the litigation at hand
might be speeded, or a particular injustice averted, does not provide a basis for
jurisdiction under § 1291.” (internal citations and quotation marks omitted)).
      Because two out of the three collateral order requirements are not
fulfilled, we find that this case does not fall within the “narrow and selective”
class of collaterally appealable orders. See id. at 113. Indeed, the State has
not identified a single case—from this circuit or any other—allowing an
interlocutory appeal of a similar stay since Rhines. This does not mean that
we never have jurisdiction to review a Rhines stay ruling; in fact, once there is
a final judgment in a habeas case, a party may appeal earlier procedural
rulings that affected the outcome, as is always the case. This posture is most
common when the district court denies a petitioner’s habeas petition and the
petitioner seeks to challenge both the denial of the petition and the denial of a
stay. See, e.g., Williams v. Thaler, 602 F.3d 291 (5th Cir. 2010) (affirming
denial of habeas petition and declining to award certificate of appealability on
the district court’s denial of a Rhines stay); Thompson v. Quarterman, 292 F.
App’x 277 (5th Cir. 2008) (denying certificate of appealability on all issues on
which the district court denied habeas relief including denial of Rhines stay);
Lave v. Dretke, 444 F.3d 333 (5th Cir. 2006) (affirming district court’s denial of
habeas relief and finding district court’s denial of Rhines stay was not abuse of
discretion); Neville v. Dretke, 423 F.3d 474 (5th Cir. 2005) (same). But we find


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no authority to rule on the propriety of the stay in the interlocutory posture of
this appeal.
      For these reasons, IT IS ORDERED that appellee’s opposed motion to
dismiss the appeal for lack of jurisdiction is GRANTED. It is further ordered
that appellee’s opposed motion to suspend the briefing notice is DENIED AS
MOOT.     IT IS FURTHER ORDERED that appellee’s opposed alternative
motion to extend time to file brief of appellee for fourteen (14) days from ruling
is DENIED AS MOOT.




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