                                 PUBLISH                  FILED
                                              United States Court of Appeals
               UNITED STATES COURT OF APPEALS         Tenth Circuit

                      FOR THE TENTH CIRCUIT                     May 28, 2019
                    _________________________________
                                                             Elisabeth A. Shumaker
                                                                 Clerk of Court
TROY MICHAEL KELL,

       Petitioner - Appellee,

v.                                                No. 17-4191

LARRY BENZON, Warden Utah
State Prison,

       Respondent - Appellant.


                    _________________________________

             Appeal from the United States District Court
                       for the District of Utah
                    (D.C. No. 2:07-CV-00359-CW)
                  _________________________________

Andrew F. Peterson, Assistant Solicitor General (Tyler R. Green, Utah
Solicitor General, Thomas Brunker, Deputy Solicitor General, Daniel W.
Boyer, Assistant Solicitor General, Sean D. Reyes, Utah Attorney General,
Salt Lake City, Utah, with him on the briefs), for Respondent-Appellant.

Lindsey Layer, Assistant Federal Public Defender, Salt Lake City, Utah
(Jon M. Sands, Federal Public Defender for the District of Arizona,
Alexandra LeClair, Assistant Federal Public Defender, Salt Lake City,
Utah, with him on the briefs), for Petitioner-Appellee.
                    _________________________________

Before BACHARACH, BALDOCK, and PHILLIPS, Circuit Judges.
               _________________________________

BACHARACH, Circuit Judge.
               _________________________________
      This is an interlocutory appeal from an order staying a habeas

proceeding. We lack jurisdiction and dismiss the appeal.

      Mr. Troy Kell sought habeas relief, but he had not exhausted two of

his claims in state court. The unexhausted claims created a Catch-22 for

Mr. Kell, risking a dismissal of all of his claims without an opportunity to

timely refile. To relieve Mr. Kell of this Catch-22, the district court

entered a limited stay, halting proceedings on one of the unexhausted

claims while Mr. Kell returned to state court to exhaust the claim. For the

remaining habeas claims, however, the district court continued with the

proceedings.

      In the midst of the ongoing habeas proceedings in district court, Utah

appealed from the grant of a stay, arguing that the district court should

have declined to grant a stay. Our threshold question involves appellate

jurisdiction. To establish jurisdiction, Utah relies on the collateral-order

doctrine, which allows appeals from some decisions before the entry of a

final judgment. But the district court’s issuance of a stay does not satisfy

the collateral-order doctrine’s requirements, so we dismiss the appeal for

lack of appellate jurisdiction.

1.    Mr. Kell timely files a habeas petition.

      Mr. Kell was convicted of murder and sentenced to death in Utah,

and his conviction became final roughly sixteen years ago. Mr. Kell then

had one year to seek federal habeas relief, but the one-year limitations

                                       2
period was tolled while he pursued state post-conviction remedies. 28

U.S.C. § 2244(d). When the state post-conviction proceedings ended in

2009, Mr. Kell timely filed a federal habeas petition.

2.    The district court stays the habeas case to allow Mr. Kell to
      exhaust a new claim.

      In 2013, Mr. Kell asserted two new habeas claims: (1) that the trial

court had improperly commented to the jury that Mr. Kell bore the burden

in the penalty phase to show that his life should be spared and (2) that the

jurors had improperly considered extraneous information. Mr. Kell had not

exhausted the two new claims, so the district court needed to grapple with

how to proceed. Continuing with the new habeas claims could prevent

consideration of any of the claims because a federal district court must

ordinarily dismiss the entire petition when one or more of the habeas

claims are unexhausted. Rose v. Lundy, 455 U.S. 509, 522 (1982). Given

the possibility of dismissal, Mr. Kell faced a dilemma: If the district court

were to dismiss the habeas petition and he later refiled in federal court, the

statute of limitations might have expired on all of his claims.

      To avoid this dilemma, Mr. Kell requested a stay so that he could

exhaust his new habeas claims in state court. For this request, Mr. Kell

invoked a procedure adopted in Rhines v. Weber, 544 U.S. 269 (2005).

Under Rhines, a district court may stay habeas proceedings to permit

exhaustion of a claim upon satisfaction of three elements:


                                      3
      1.    “Good cause” exists for the failure to exhaust the claim.

      2.    The unexhausted claim is “potentially meritorious.”

      3.    The petitioner did not engage in “abusive litigation tactics” or
            intentionally delay the proceedings.

Rhines, 544 U.S. at 277–78. The district court declined to stay the claim

involving extraneous influence on the jury, concluding that this claim

lacked potential merit. But the district court granted the stay on the claim

involving the judge’s comment to the jury, concluding that Mr. Kell had

satisfied the three elements for a Rhines stay. For the remaining habeas

claims, however, the district court stated that the proceedings would

continue without interruption. 1

3.    Utah appeals the order granting a limited stay.

      In this appeal, Utah argues that the federal district court erred in

granting the stay because

           the court used the wrong test for “good cause” and misapplied
            that test,

           the new habeas claim lacks potential merit based on timeliness,
            the existence of a procedural default, and the absence of a
            constitutional violation, and

           Mr. Kell was dilatory by waiting over three years to assert the
            new habeas claim and over eight years to seek a stay based on
            this claim.



1     As the dissent points out, the district court denied certification of an
interlocutory appeal. In denying certification, the district court reasoned
that an interlocutory appeal would slow the litigation.
                                       4
4.    We lack jurisdiction to consider interlocutory appeals from
      Rhines stays.

      We can consider these arguments only if Utah establishes appellate

jurisdiction. See EEOC v. PJ Utah, L.L.C., 822 F.3d 536, 542 n.7 (10th

Cir. 2016) (“[T]he appellant . . . bears the burden to establish appellate

jurisdiction.”). We typically acquire jurisdiction through the district

court’s entry of a final decision. 28 U.S.C. § 1291. But a stay does not

ordinarily constitute a final decision. See Crystal Clear Commc’ns, Inc. v.

Sw. Bell Tel. Co., 415 F.3d 1171, 1176 (10th Cir. 2005) (“If a stay merely

delays litigation and does not effectively terminate proceedings, it is not

considered a final decision.”).

      Utah argues that we nonetheless have jurisdiction under the

collateral-order doctrine. This doctrine would apply only if the district

court’s decision

           conclusively decided the disputed question,

           resolved an important issue separate from the merits, and

           could not be effectively reviewed on direct appeal.

Van Cauwenberghe v. Biard, 486 U.S. 517, 522 (1988). The failure to

satisfy any of the three elements would prevent us from applying the

collateral-order doctrine. See Stubblefield v. Windsor Capital Grp., 74 F.3d

990, 997 (10th Cir. 1996) (stating that the collateral-order doctrine “does

not apply unless each of the three requirements are met”).

                                      5
      Each element is considered stringent. E.g., Flanagan v. United

States, 465 U.S. 259, 270 (1984). And “[i]n case after case in year after

year, the Supreme Court has issued increasingly emphatic instructions that

the class of cases capable of satisfying this ‘stringent’ test should be

understood as ‘small,’ ‘modest,’ and ‘narrow.’” United States v. Wampler,

624 F.3d 1330, 1334 (10th Cir. 2010) (Gorsuch, J.). Utah bears the burden

on each element of this “stringent” test. See Los Lobos Renewable Power,

L.L.C. v. Americulture, Inc., 885 F.3d 659, 664 (10th Cir. 2018) (stating

that the “party asserting jurisdiction under the collateral order doctrine”

bears the burden on each element).

      We assume, for the sake of argument, that an order issuing a Rhines

stay conclusively determines the disputed question. But the grant of a

Rhines stay involves issues that are intertwined with the merits and

reviewable on direct appeal. We thus lack jurisdiction under the collateral-

order doctrine. See Crystal Clear Commc’ns, Inc. v. Sw. Bell Tel. Co., 415

F.3d 1171, 1178 (10th Cir. 2005) (noting that the collateral-order doctrine

does not support appellate jurisdiction if any element is unsatisfied).

      A.    The grant of a Rhines stay is not completely separate from
            the merits.

      The collateral-order doctrine applies only when the order involves an

important issue that is not intertwined with the merits. Coopers & Lybrand

v. Livesay, 437 U.S. 463, 469 (1978). For this element, Utah must show


                                       6
that the issues bearing on the appropriateness of a Rhines stay are

“completely separate” from the merits. E.g., Cunningham v. Hamilton Cty.,

Ohio, 527 U.S. 198, 205 (1999). Utah has not made this showing.

      1.    Avoidance of Piecemeal Litigation

      The requirement of complete separation is designed to prevent

piecemeal appellate review. Van Cauwenberghe v. Biard, 486 U.S. 517,

527 (1988). Given this purpose, the collateral-order doctrine would

ordinarily apply only if an appellate court would probably not need to

consider the merits a second time. 2

      But interlocutory appeals of Rhines stays would often require federal

appellate courts to consider the merits at least twice:

           once in the interlocutory appeal (when the respondent argues
            that a Rhines stay is improper because the petitioner’s
            unexhausted claim lacks potential merit) and

           again after entry of the judgment (when the parties disagree
            over the claim’s actual merit).



2
      The Supreme Court has explained:

      The requirement that the matter be separate from the merits of
      the action itself means that review now is less likely to force the
      appellate court to consider approximately the same (or a very
      similar) matter more than once, and also seems less likely to
      delay trial court proceeds (for, if the matter is truly collateral,
      those proceedings might continue while the appeal is pending).

Johnson v. Jones, 515 U.S. 304, 311 (1995) (emphasis in original).


                                       7
And if the district court enters multiple Rhines stays, 3 we could face three

or more appeals with overlapping issues.

      This possibility is apparent here. For example, consider Utah’s

argument that the district court’s jury instruction was correct. This

argument involves a classic issue on the merits. See Gillette v. Prosper,

858 F.3d 833, 839 (3d Cir. 2017) (concluding that the order being appealed

was “closely related” to the merits because “both concern[ed] alleged

constitutional violations” and involved potential release from prison). If

we were to recognize appellate jurisdiction at this stage and Mr. Kell were

to obtain habeas relief, we would decide the “potential merit” of Mr. Kell’s

new claim now and the claim’s “actual merit” after the entry of a final

judgment. It is hard to imagine a better example of piecemeal litigation—

precisely what the Supreme Court has tried to avoid by limiting the

collateral-order doctrine to classes of orders involving “complete

separation” from the merits.

      The dissent disagrees:

      Even where a district court issues multiple Rhines stays, each
      Rhines stay concerns different claims by a petitioner and
      therefore different issues. To illustrate, a district court issues a
      Rhines stay on claim x, allowing the petitioner to exhaust the
      claim in state court. After the petitioner exhausts claim x in state
      court and returns to federal court, the district court is not going
      to issue another Rhines stay for the purpose of allowing the

3
     Here, for example, the district court granted two Rhines stays. Our
appeal involves only the second stay.

                                       8
      petitioner to exhaust claim x. If there is a second Rhines stay, it
      would be issued for the petitioner to exhaust claim y. If both of
      these Rhines stays are appealed, and then the final judgment is
      appealed, the “same issues” would not be before this Court three
      or more times.

Dissent at 16–17 n.5 (emphasis in original).

      We respectfully think that the dissent has misunderstood us. When

reviewing a Rhines stay, we consider the “potential merit” of the

unexhausted claim. For example, let’s consider Utah’s argument that the

district court erred in granting a stay because the unexhausted habeas claim

lacks potential merit. If we have appellate jurisdiction under the collateral-

order doctrine, we would consider whether the district court acted within

its discretion in treating the unexhausted claim as potentially meritorious.

      Let’s assume, for the sake of argument, that we were to uphold this

determination. When the habeas case ends in district court, the parties

could appeal the district court’s ultimate determination of the claim’s

actual merit. See Alexander v. U.S. Parole Comm’n, 514 F.3d 1083, 1087

(10th Cir. 2008) (stating that a conditional writ of habeas corpus is final,

creating appellate jurisdiction); Burton v. Johnson, 975 F.2d 690, 693–94

(10th Cir. 1992) (stating that a conditional writ of habeas corpus was an

appealable final judgment).

      The same would be true for any case involving a Rhines stay. So in a

case with multiple Rhines stays and multiple interlocutory appeals, we



                                       9
could face the same issues after a final judgment (even if the interlocutory

appeals individually involved different issues).

      2.    The Significance of the Relationship Between the Rhines
            Factor of “Potential Merit” and the Actual Merits of Mr.
            Kell’s New Claim

      Because “potential merit” is essential for Rhines stays, interlocutory

review would frequently require us to consider the potential merit of the

underlying habeas claims. And “potential merit” is obviously not

“completely separate” from the actual merits. The dissent agrees, stating

that the Rhines issue (“potential merit”) “undoubtedly overlaps with the

merits.” Dissent at 16. 4




4
       Utah and the dissent downplay the significance of this relationship
between the two, calling “potential merit” a “fraction of a fraction” of the
test governing grants of Rhines stays. Appellant’s Reply Br. at 5; Dissent
at 16.

      It is true that potential merit is just one element for a Rhines stay.
But a court can enter a Rhines stay only if the unexhausted claim has
potential merit. See pp. 3–4, above. Thus, potential merit may be a
“fraction” of the test, but it is a requirement in any Rhines stay.

      Utah also asserts that the “underlying merit of a habeas claim is only
a fraction of the ‘potential merit’ factor.” Appellant’s Reply Br. at 5. We
are not sure why Utah regards “potential merit” under Rhines as more
inclusive than the actual merit of a habeas claim, and Utah supplies no
explanation. Even if Utah were right, however, it has not explained how
the issue of potential merit could satisfy the requirement of complete
separation from the merits.


                                      10
      3.      Application of the Test of “Complete Separation”

      To apply the element of complete separation, we must evaluate the

pertinent issue based on the entire class of orders (Rhines stays) rather

than the particular arguments in this appeal. United States v. Bolden, 353

F.3d 870, 876 (10th Cir. 2003). 5 We thus consider whether the issues

underlying a Rhines stay are, “as a whole,” completely separate from the

merits. Id.

      The Supreme Court has repeatedly cautioned that the collateral-order

doctrine requires “complete separation” from the merits. E.g., Microsoft

Corp. v. Baker, 137 S. Ct. 1702, 1708 n.3 (2017); Will v. Hallock, 546 U.S.

345, 349 (2006); Sell v. United States, 539 U.S. 166, 176 (2003);

Cunningham v. Hamilton Cty., Ohio, 527 U.S. 198, 205 (1999);

Quackenbush v. Allstate Ins. Co., 517 U.S. 706, 712 (1996); Johnson v.

Jones, 515 U.S. 304, 310–11 (1995); Digital Equip. Corp. v. Desktop

Direct, Inc., 511 U.S. 863, 867 (1994); Richardson-Merrell, Inc. v. Koller,


5
      In Bolden, we considered whether the collateral-order doctrine
applied to orders disqualifying an entire U.S. Attorney’s office from
representing the government. 353 F.3d at 873. The defendant contended
that the element of separation wasn’t satisfied because the issue of
disqualification was entangled in the merits of his claims. Id. at 876. We
rejected this approach, reasoning that the Supreme Court “‘has consistently
eschewed a case-by-case approach to deciding whether an order is
sufficiently collateral.’” Id. (quoting Cunningham v. Hamilton Cty., Ohio,
527 U.S. 198, 206 (1999)). We ultimately decided the issue of separation
“on the whole of such [disqualification] orders” without determining
whether the particular issues in that case had been separate from the
merits. Id.
                                     11
472 U.S. 424, 431 (1985); Coopers & Lybrand v. Livesay, 437 U.S. 463,

468–69 (1978).

      4.     Utah’s Focus on its Own Arguments (Rather than the Class
             of Orders)

      Utah also points to its arguments involving good cause, insisting that

they do not relate to the merits. And the dissent relies on Utah’s arguments

involving timeliness, dilatoriness, and procedural default. The focus of

Utah and the dissent on Utah’s particular appeal points is misguided, as it

disregards

            the overlap between Utah’s appellate arguments and the merits
             and

            the need to consider separation categorically based on the class
             of orders rather than the particular issues invoked by the
             appellant.

      a.     Utah’s Arguments on Good Cause

      Utah tries to justify application of the collateral-order doctrine based

on the district court’s alleged misidentification and misapplication of the

test for good cause. We reject this effort.

      i.     Misidentifying the Test for Good Cause

      Utah identifies the definition of good cause as an “important” issue.

To determine an issue’s importance under the collateral-order doctrine, we

consider




                                      12
           whether the issue is “important in a jurisprudential sense” 6 and

           whether the interests that “‘would potentially go unprotected
            without immediate appellate review are significant relative to
            efficiency interests sought to be advanced by adherence to the
            final judgment rule.’” 7

      The definition of good cause might be considered jurisprudentially

important now because we lack a precedent squarely defining the test for

good cause under Rhines. Of course, if we were to undertake interlocutory

review and define the test, that definition would settle the issue, rendering

it jurisprudentially unimportant in the future. See 15A Charles Alan

Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice &

Procedure: Jurisdiction & Related Matters § 3911.5, at 438 (2d ed. 1992)

(“Implementation of a serious and unsettled question requirement can

easily lead to a situation in which a particular question is suitable for

collateral order appeal the first time it is presented, but not thereafter.”).

      And Utah has not shown an urgency to immediately define the

standard for good cause under Rhines. Indeed, Utah has offered many

alternative arguments for reversal, such as expiration of the limitations

period, procedural default, misapplication of the district court’s own test

for good cause, dilatoriness, and lack of potential merit. Given Utah’s


6
      Marc Dev’t, Inc. v. FDIC, 992 F.2d 1503, 1505 (10th Cir.), vacated
on other grounds, 12 F.3d 948 (10th Cir. 1993).
7
     Pierce v. Blaine, 467 F.3d 362, 370–71 (3d Cir. 2006) (quoting In re
Ford Motor Co., 110 F.3d 954, 959 (3d Cir. 1997)).
                                       13
alternative arguments, we may not even need to decide the test for good

cause if we were to reverse the grant of a Rhines stay.

         The dissent nonetheless insists that the test for good cause is

important because a court in “literally every grant of a Rhines stay, not just

this particular grant of a Rhines stay, must decide what the appropriate

standard for determining ‘good cause’ is.” Dissent at 14. We see the issue

differently. If the collateral-order doctrine applied, only two possibilities

exist:

         1.    We decide now what the test is for good cause.

         2.    We do not decide the test now, ruling on other grounds.

         Let’s consider the first possibility (that we decide the test for good

cause in this appeal). Once we define the test, future panels and district

courts will be bound by stare decisis to apply that test in all future cases.

United States v. Meyers, 200 F.3d 715, 720 (10th Cir. 2000). We thus

couldn’t continue to view the definition of good cause as jurisprudentially

significant once we define the test for good cause.

         The second possibility is that we avoid defining the test for good

cause. This possibility is real because we could reverse a Rhines stay based

on any of the three prongs. For example, we might reverse the grant of a

Rhines stay based on dilatoriness or a lack of potential merit rather than




                                         14
address the issue of good cause. 8 But if we don’t decide the test for good

cause, how could we apply the collateral-order doctrine based on the

importance of deciding that test? If we were to do so, we could put

ourselves in the odd position of recognizing appellate jurisdiction to

decide the test for good cause without actually deciding what the test is.

      Given these two possibilities, application of the collateral-order

doctrine based on the test for good cause would paradoxically allow every

respondent to appeal every grant of a Rhines stay based on an issue that we

have already decided or, if not, might not even need to decide. This

paradox highlights the need to consider the importance of the issues

categorically based on the class of orders involved rather than the

particular arguments raised in a particular case. 9


8
      Utah and the dissent criticize Mr. Kell for being dilatory, arguing
that Mr. Kell waited until 2017 to seek a stay on his unexhausted claims.
Because we lack jurisdiction, we have no occasion to address whether Mr.
Kell was dilatory. We note, however, that Mr. Kell requested a stay in a
reply brief filed in 2014. See Kell v. Benzon, No. 2: 07-CV-359, dkt. no.
115 at 50 (D. Utah Jan. 24, 2014) (Pet’r’s Reply Br.) (“Mr. Kell asks this
Court to stay these proceedings and hold them in abeyance to allow him to
return to state court to exhaust those claims.”). But as Utah and the dissent
point out, he didn’t move for a stay on this issue until 2017.
9
      The dissent calls this possibility an “irrelevant rabbit hole,”
reasoning that “the question is whether the district court’s order resolves
an issue that is completely separate from the merits.” Dissent at 14 n.4. As
the dissent elsewhere acknowledges, however, the question must not only
be completely separate from the merits but also “important.” Dissent at 9–
10. Here we are considering the element of importance. Because the
presence of an important issue is necessary under the collateral-order

                                      15
      ii.   Misapplying the Test for Good Cause

      On the merits of the stay, Utah argues that the district court

misapplied the test for good cause. Utah’s argument shows that application

of the good cause test not only overlaps with the merits but would often

require consideration of them. For example, petitioners could sometimes

raise the same theory for good cause and the merits of a habeas claim. An

example is a Brady claim. See Brady v. Maryland, 373 U.S. 83 (1963).

Courts have considered withholding of information as “good cause.” See

Doe v. Jones, 762 F.3d 1174, 1182 (10th Cir. 2014). So when a petitioner

asserts a Brady claim, the petitioner might rely on the withholding of

evidence for both good cause and the merits of the habeas claim. See, e.g.,

Wogenstahl v. Mitchell, 668 F.3d 307, 322 (6th Cir. 2012) (concluding that

a habeas petitioner “had good cause for failing to raise the Brady issue

prior to 2003, because the new information about [a prosecution witness’s

prior arrest and adjudication of delinquency] was not disclosed until

then”).

      An overlap also exists between the inquiry on good cause and the

merits of other habeas claims. For example, the inquiry on good cause may

overlap with the merits when a petitioner alleges ineffective assistance of

trial counsel. Suppose that a petitioner alleges good cause based on post-


doctrine, our inquiry into the importance of the good-cause test is not an
“irrelevant rabbit hole.”
                                      16
conviction counsel’s failure to assert ineffective assistance on the part of

trial counsel. This allegation could suffice to avoid a procedural default.

Martinez v. Ryan, 566 U.S. 1, 9 (2012). And Utah argues that the tests for

good cause and procedural default are the same. Given this argument, we

might find “good cause” based on post-conviction counsel’s

ineffectiveness for failure to assert trial counsel’s ineffectiveness. And

once the case ends in district court, we could again face the issue of trial

counsel’s ineffectiveness as part of our review on the merits.

      The Supreme Court addressed this kind of overlap in Van

Cauwenberghe v. Biard, 486 U.S. 517 (1988), and Coopers & Lybrand v.

Livesay, 437 U.S. 463 (1978). In Van Cauwenberghe, the Court held that

the denial of a motion to dismiss under the doctrine of forum non

conveniens was not separate from the merits because the doctrine involves

factors (like the location of the witnesses and evidence) that are enmeshed

with the merits. 486 U.S. at 528–29. And in Coopers & Lybrand, the Court

held that consideration of class certification involved issues intertwined

with the merits because class certification involves merits-related matters

like the typicality of the claims, the adequacy of a representative, and the

presence of common questions of law or fact. 437 U.S. at 469 & n.12.

Thus, the Court held that the collateral-order doctrine does not cover

denials of class certification. Id. at 469. Neither case involved actual



                                      17
consideration of the merits; but in both cases, the issues overlapped with

the merits.

      Like issues involving forum non conveniens and class certification,

the issue of good cause will often overlap with a court’s preliminary

assessment of the merits, preventing application of the collateral-order

doctrine. See Cunningham v. Hamilton Cty., Ohio, 527 U.S. 198, 205

(1999) (holding that sanctions orders under Fed. R. Civ. P. 37(a) do not

fall under the collateral-order doctrine because they “often will be

inextricably intertwined with the merits of the action,” “[m]uch like the

orders at issue in Van Cauwenberghe and Coopers & Lybrand”).

      Here, for example, Utah challenges the finding of good cause,

arguing that Mr. Kell could have asserted the claim at trial and in a direct

appeal. To address this argument, we would need to ask whether Mr. Kell’s

attorneys should have asserted the claim at trial or in the direct appeal.

This inquiry would presumably overlap with Mr. Kell’s habeas claims of

ineffective assistance of counsel. Thus, resolution of Utah’s arguments on

good cause could entangle us in the substance of Mr. Kell’s underlying

habeas claims. In these circumstances, consideration of good cause under

Rhines is not categorically separate from the merits. 10


10
      The dissent questions our application of the requirement of complete
separation, stating that we are avoiding the “obvious” reality that the
definition of the standard for good cause is “a purely legal issue that has

                                      18
      b.    Timeliness, Dilatoriness, and Procedural Default

      In this appeal, Utah also argues that (1) Mr. Kell was dilatory and

(2) his unexhausted claim is untimely and procedurally defaulted. Utah

does not suggest that these arguments would support collateral-order

jurisdiction. But the dissent does, stating that timeliness, dilatoriness, and

procedural default are separate from the merits.

      For the sake of argument, let’s assume that the dissent is right and

ignore the fact that Utah (the appellant invoking appellate jurisdiction)

didn’t present these arguments as grounds to invoke the collateral-order

doctrine. See pp. 35–36, below (citing cases for the unavailability of sua

sponte arguments to support jurisdiction). As Utah argues, however, the

separate issue must also be considered important in order to trigger this


no overlap with the merits of the case.” Dissent at 14 (emphasis in
original). The dissent bases its disagreement on footnote ten in Mitchell v.
Forsyth, 472 U.S. 511 (1984). Dissent at 14. But this footnote explains that
an issue is not considered “completely separate” from the merits when its
effect “may depend . . . on the success of the parties in litigating the other
legal and factual issues that form their underlying dispute.” Mitchell, 472
U.S. at 529–30 n.10 (emphasis added).

      The Supreme Court illustrated this point with a disqualification
order. Id. The disqualification order failed this requirement of “complete
separation” because it was “not a legal issue that [could] be decided with
reference only to undisputed facts and in isolation from the remaining
issues of the case.” Id.

      Under Mitchell’s footnote ten, misapplication of Rhines’s
requirement of good cause could not satisfy the “complete separation”
requirement unless the issue were categorically separate from the merits of
any of the habeas claims.
                                      19
doctrine. See p. 5, above. Neither Utah nor the dissent offers any argument

about the importance of Utah’s arguments on timeliness, dilatoriness, or

procedural default. These arguments involve garden-variety application of

legal principles settled long ago. See U.S. Fidelity & Guaranty Co. v. Arch

Ins. Co., 578 F.3d 45, 59 (1st Cir. 2009) (concluding that an issue

involving insufficiency of an affidavit was not “important enough . . . to

justify the application of the collateral order doctrine”); United States v.

Billmyer, 57 F.3d 31, 35 (1st Cir. 1995) (“Ordinarily, a discovery order

will meet the legal-importance test only if it presents a claim of clear-cut

legal error and not merely a challenge to the district judge’s factual

determinations or the application of settled legal rule to the particular

facts.”). Thus, Utah’s arguments on timeliness, dilatoriness, and procedural

default would not constitute important issues, as required to trigger the

collateral-order doctrine.

      c.    The Categorical Approach

      Perhaps in some appeals of Rhines stays, the specific argument being

advanced might not involve the potential merit of an unexhausted claim.

But the Supreme Court has “consistently eschewed a case-by-case approach

to deciding whether an order is sufficiently collateral.” Cunningham v.




                                      20
Hamilton Cty., Ohio, 527 U.S. 198, 206 (1999); see also p. 11 & n.5

(discussing United States v. Bolden, 353 F.3d 870, 876 (10th Cir. 2003)).

      The wisdom of the Supreme Court’s approach is self-evident. For

example, let’s assume that Utah’s appellate arguments are important and

completely separate from the merits. If we were to base the collateral-order

doctrine solely on the happenstance of what Utah argues in a given case,

we would be allowing or disallowing interlocutory appeals of all Rhines

stays based on what a single party has chosen to argue in a single case.

To avoid this anomaly, the Supreme Court has required us to consider the

underlying class of orders rather than the peculiarities of the arguments

presented by this particular appellant. See p. 11, above. So here we

consider the entire category of orders. See id.

      The dissent apparently agrees, stating that we must “look[] to the

issues the class of orders (Rhines stays) generally raise.” Dissent at 12.

And the dissent acknowledges that we are not to focus on “case-specific

issues,” such as the issues presented in this particular order granting a

Rhines stay. Id.

      With this acknowledgment, the dissent contends that the appellant

must present “at least one issue” that is “completely separate from the

merits.” Id. at 10 (emphasis in original). But the Supreme Court has

consistently rejected this approach, holding that even if some appeals of

Rhines stays might involve appellate issues separable from the merits, the

                                      21
collateral-order doctrine cannot apply absent complete separation for the

entire class of orders. Richardson-Merrell, Inc. v. Koller, 472 U.S. 424,

439 (1985); 11 see also Cunningham v. Hamilton Cty., Ohio, 527 U.S. 198,

206 (1999) (“Perhaps not every discovery sanction will be inextricably

intertwined with the merits, but we have consistently eschewed a case-by-

case approach to deciding whether an order is collateral.”). So when we

assess whether the class of orders entails complete separation from the

merits, we consider the issues in all grants of stays under Rhines. The

presence of a single issue separate from the merits in a particular appeal

would not trigger the collateral-order doctrine. See Cunningham, 527 U.S.

at 205–06 (holding that sanctions orders under Fed. R. Civ. P. 37(a) are

categorically considered intertwined with the merits even though sanctions

orders are sometimes separate from the merits); Koller, 472 U.S. at 439–40



11
     The Koller Court explained:

     This Court . . . has expressly rejected efforts to reduce the
     finality requirement of [28 U.S.C.] § 1291 to a case-by-case
     determination of whether a particular ruling should be subject to
     appeal. Even if some orders disqualifying counsel are separable
     from the merits of the litigation, many are not. Orders
     disqualifying attorneys on the ground that they should testify at
     trial, for example, are inextricable from the merits because they
     involve an assessment of the likely course of the trial and the
     effect of the attorney’s testimony on the judgment. Appellate
     review of orders disqualifying counsel for misconduct may be
     entwined with the merits of the litigation as well.

472 U.S. at 439 (citations omitted).
                                       22
(holding that orders disqualifying counsel in civil cases are categorically

considered intertwined with the merits because many are even though some

aren’t); see also In re Continental Investment Corp., 637 F.2d 1, 6 (1st Cir.

1980) (holding “that denials of disqualification motions as a class raise

significant legal questions too rarely to bring them within the Cohen

exception”).

      The categorical approach is apparent in the Supreme Court’s

handling of qualified immunity. There the Court has held that legal issues

involving a clearly established violation are completely separate from the

merits. Mitchell v. Forsyth, 472 U.S. 511, 528 (1985). But the Supreme

Court made that determination by considering the issues arising in the

entire class of orders rather than in the particular case being reviewed. See

id. at 524–30.

      The Supreme Court later went further, expressly disavowing a case-

by-case approach in Johnson vs. Jones, 515 U.S. 304 (1995). There the

Court refused to extend the collateral-order doctrine to cover denials of

qualified immunity based on insufficiency of the evidence. Johnson, 515

U.S. at 314–15. The Court explained that under the categorical approach,

appellate judges could not consider the particular facts to determine the

applicability of the collateral-order doctrine. Id. at 315. Instead, judges

were to consider the kinds of issues likely to arise in appeals involving this

class of orders. Id. at 315–17. For example, the Supreme Court

                                      23
acknowledged that the facts in Johnson itself were straightforward, but

stressed that many cases involving constitutional torts would entail factual

disputes ill-suited for review under the collateral-order doctrine. Id. at

316.

       Beyond qualified immunity, circuit courts have followed the Supreme

Court’s lead by deciding the element of complete separation based on the

class of orders involved rather than approaching this element based on the

particular issues raised by a particular appellant. See Henry v. Lake

Charles Am. Press, L.L.C., 566 F.3d 164, 173 (5th Cir. 2009) (“Consistent

with Supreme Court precedent and the general purposes of the final

judgment rule, we determine whether an order is appealable as a general or

categorical matter.”); see also In re Carco Electronics, 536 F.3d 211, 213

(3d Cir. 2008) (“[T]he Supreme Court’s statement in Cunningham that we

should not apply the collateral order doctrine on a ‘case-by-case’ basis

indicates that we should not attempt to carve out individualized, case-

specific exceptions to the general rule that discovery orders are not

immediately appealable.”); Abelesz v. OTP Bank, 692 F.3d 638, 649 (7th

Cir. 2012) (“The Supreme Court has applied the collateral order rule

categorically, treating different sorts of defenses or issues as either

covered or not covered.”).

                                     * * *



                                      24
      Viewed as a category, interlocutory appeals of Rhines stays would

generally enmesh us in the merits. Thus, the collateral-order doctrine’s

second element is not met when the district court grants a Rhines stay.

      B.    The grant of a Rhines stay can be reviewed in the appeal
            from a final judgment.

      Utah fails to satisfy not only the collateral-order doctrine’s second

element but also the third element.

      Under this element, appellate jurisdiction exists only if the issue is

important and could not otherwise be effectively reviewed after the entry

of final judgment. Mitchell v. Forsyth, 472 U.S. 511, 525 (1985). But we

do not just consider unreviewability; we also consider the importance of

the interest lost by deferring review until after the final judgment. See

Digital Equip. Corp. v. Desktop Direct, Inc., 511 U.S. 863, 878–79 (1994).

This inquiry entails “a judgment about the value of the interests that would

be lost through rigorous application of the final judgment requirement.” Id.

On this element, Utah hasn’t satisfied its burden.

      Utah argues that the grant of a Rhines stay is unreviewable after a

final judgment because (1) the loss of time can never be remedied and (2)

the grant of a stay becomes moot upon entry of a final judgment. We reject

both arguments.

      As Utah points out, the delay itself is unreviewable because a court

can’t restore Utah’s lost time. But we do not ordinarily regard the loss of


                                      25
time as sufficiently important to trigger the collateral-order doctrine. See

United States v. Section 17 Tp. 23 North, Range 22 East of IBM, Delaware

Cty., Okla., 40 F.3d 320, 322 (10th Cir. 1994) (holding that an interest in

defending a forfeiture action now, as opposed to later, “is not the type of

‘important’ right which the Supreme Court contemplated as requiring

immediate review in [Digital Equipment Corp. v. Desktop Direct, Inc., 511

U.S. 863 (1994)]”). After all, no pretrial decision can ever restore a party’s

lost time, and we routinely disallow interlocutory appeals for most pretrial

decisions. See Mesa Oil, Inc. v. United States, 467 F.3d 1252, 1255 (10th

Cir. 2006) (“The costs of unnecessary litigation caused by what eventually

turns out to be an error by the district court is insufficient to warrant an

interlocutory appeal.”); see also In re Kozeny, 236 F.3d 615, 619–20 (10th

Cir. 2000) (two-judge motions panel) 12 (“If the stay merely delays the

federal litigation, courts have generally held the stay orders not to be

appealable.”); accord Kershaw v. Shalala, 9 F.3d 11, 14 (5th Cir. 1993)

(“Absent a Moses Cone situation, stay orders . . . are usually not




12
      Because Kozeny was issued by a two-judge motions panel, we would
ordinarily discount the opinion’s precedential value. Crystal Clear
Comm’ns, Inc. v. Sw. Bell Tel. Co., 415 F.3d 1171, 1176 n.3 (10th Cir.
2005). Here, however, we are not relying on Kozeny for its precedential
value. We are instead relying only on the opinion’s observation about our
general practice in regarding stay orders as unappealable.


                                      26
reviewable as collateral orders.”); 13 see also Hon. Edith H. Jones, Appeals

of Arbitration Orders—Coming Out of the Serbonian Bog, 31 S. Tex. L.

Rev. 361, 372 (1990) (“Absent exceptional circumstances, it is unlikely

that an order granting a motion to stay proceedings should be appealable as

a collateral order.”).

      Time is a precious commodity in habeas proceedings, particularly

when the petitioner faces a death sentence (as Mr. Kell does). And until

now, the case has lingered in state and federal courts for roughly a quarter

of a century. But we cannot single out particular cases to decide the extent

of the interest lost by deferring review. Instead, we must consider the

public interest based on the class of orders (Rhines stays). See Mohawk

Indus., Inc. v. Carpenter, 558 U.S. 100, 107 (2009); 14 In re Motor Fuel


13
      In Kershaw, the Fifth Circuit observed that in Moses Cone, the
Supreme Court had regarded a stay as final when its purpose and effect
were to surrender jurisdiction of a federal suit to a state court. Kershaw, 9
F.3d at 14 (quoting Moses H. Cone Memorial Hosp. v. Mercury Const.
Corp., 460 U.S. 1, 11 n.11 (1983)). This case does not involve surrender of
jurisdiction over a federal suit. Instead, the district court required Mr. Kell
to exhaust state-court remedies so that the federal court could consider the
habeas claim.
14
      In Mohawk Industries, the Supreme Court explained:

      [T]he decisive consideration is whether delaying review until the
      entry of final judgment “would imperil a substantial public
      interest” or “some particular value of higher order.”

      In making this determination, we do not engage in an
      “individualized jurisdictional inquiry.” Rather, our focus is on

                                      27
Temperature Sales Practices Litig., 641 F.3d 470, 482 (10th Cir. 2011)

(“When analyzing the third Cohen requirement, we do not consider whether

the circumstances of the particular case before us warrant our immediate

review; rather, we examine whether the entire category of rulings to which

the claim belongs can be adequately vindicated on review of a final

judgment or by other means.”). This approach requires us to decide

whether the value that we place on immediate review would override

Congress’s policy against piecemeal review.

     To answer, we must consider the many important interests that exist,

often in tension with one another. For example, the state has important

interests in comity and enforcement of its own criminal judgments, which

Congress recognized in the Antiterrorism and Effective Death Penalty Act

of 1996. See Williams v. Taylor, 529 U.S. 420, 436 (2000) (stating that the

Act was designed to advance “comity, finality, and federalism”). But

habeas review inherently creates tension with comity, as federal courts

review decisions by a state’s highest court. See Duckworth v. Eagan, 492



     “the entire category to which the claim belongs.” 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 injustic[e]’ averted,” does not provide
     a basis for jurisdiction under § 1291.

Mohawk Indus., 558 U.S. at 107 (citations omitted).


                                    28
U.S. 195, 211 (1989) (discussing the tension of federal-state relations

because of habeas review, where “lower federal courts often sit in ‘review’

of the judgments of the highest courts of a state judicial system”).

     To ease this tension, Congress has required habeas petitioners to

exhaust state-court remedies. 28 U.S.C. § 2254(b)(1)(A); see also Rose v.

Lundy, 455 U.S. 509, 518 (1982) (“The exhaustion doctrine is principally

designed to protect the state courts’ role in the enforcement of federal law

and prevent disruption of state judicial proceedings.”). Exhaustion,

however, can slow the state’s ability to enforce criminal judgments,

especially those involving capital sentences. See Ira P. Robbins, Toward a

More Just & Effective System of Review in State Death Penalty Cases, 40

Am. U. L. Rev. 1, 131 (1990) (“[R]equiring exhaustion [in habeas review

of death-penalty cases] usually necessitates further delay, even if the

unexhausted claim is an obviously frivolous one.”). This risk is

particularly significant in habeas proceedings, where swift action is

essential. See Rhodes v. Hannigan, 12 F.3d 989, 992 (10th Cir. 1993)

(“Habeas corpus ‘is a speedy remedy, entitled by statute to special,

preferential consideration to insure expeditious hearing and

determination.’” (quoting Van Buskirk v. Wilkinson, 216 F.2d 735, 737–38

(9th Cir. 1954))); Johnson v. Rogers, 917 F.2d 1283, 1284 (10th Cir. 1990)

(“[W]rits of habeas corpus are intended to afford a ‘swift and imperative



                                     29
remedy in all cases of illegal restraint or confinement.’” (quoting Fay v.

Noia, 372 U.S. 391, 400 (1963))).

      The Supreme Court sought to balance these competing interests in

Rhines by giving discretion to federal district courts to stay habeas

proceedings while a petitioner exhausts state-court remedies. Rhines v.

Weber, 544 U.S. 269, 276–78 (2005). But discretion can be abused. The

question presented here is when an appellate court should review the

district court’s exercise of discretion. 15 Given the conflicting interests, we

must consider whether interlocutory review of Rhines stays would speed

review or slow it through piecemeal review.

      For this inquiry, we start with Congress’s policy against piecemeal

review. In general, Congress has tried to avoid piecemeal review by

confining appellate review to final orders. See Abney v. United States, 431

U.S. 651, 656 (1977) (“[T]here has been a firm congressional policy

against interlocutory or ‘piecemeal’ appeals and courts have consistently


15
      Other circuit courts have generally declined to apply the collateral-
order doctrine to orders subject to the abuse-of-discretion standard. See
Grace v. Vannoy, 826 F.3d 813, 820 (5th Cir. 2016) (“Typically, orders
reviewable for abuse of discretion are not appealable under the collateral-
order doctrine.”); In re Kemble, 776 F.2d 802, 806 (9th Cir. 1985)
(“Ordinarily we should not use the collateral order doctrine to examine the
exercise of discretion by trial judges.”). One leading treatise attributed this
“wise” practice to a reluctance to undertake interlocutory review when
appellate courts have allowed district courts to exercise discretion. 15A
Charles Alan Wright, Arthur R. Miller & Edward H. Cooper, Federal
Practice & Procedure: Jurisdiction & Related Matters, § 3911.5, at 433–
35 (2d ed. 1992).
                                       30
given effect to that policy.”). And Congress has expressed its judgment

“that the district judge has the primary responsibility to police the

prejudgment tactics of litigants,” reasoning “that the district judge can

better exercise that responsibility if the appellate courts do not repeatedly

intervene to second-guess prejudgment rulings.” Richardson-Merrell, Inc.

v. Koller, 472 U.S. 424, 436 (1985) (emphasis in original).

      The Supreme Court has respected this congressional policy choice

and restricted prejudgment review because it inefficiently fosters

piecemeal appeals. See Mohawk Indus., Inc. v. Carpenter, 558 U.S. 100,

106 (2009) (“Permitting piecemeal, prejudgment appeals, we have

recognized, undermines ‘efficient judicial administration’ and encroaches

upon the prerogatives of district court judges, who play a ‘special role’ in

managing ongoing litigation.”); Richardson-Merrell, Inc. v. Koller, 472

U.S. 424. 430 (1985) (stating that the final judgment rule prevents delays

from frequent appellate interruptions in the litigation); Abney, 431 U.S. at

657 (stating that 28 U.S.C. § 1291, which restricts appellate review to final

decisions, is designed to prevent delays and disruptions through

intermediate appeals).

      Given Congress’s preference against interlocutory review, we must

consider whether Rhines stays involve aberrant circumstances justifying

our intrusion into Congress’s effort to avoid piecemeal review. We think



                                      31
not. In Rhines itself, the Supreme Court balanced the compelling interests

by devising a procedure to accommodate

           the state’s interest in comity,

           the congressional requirement of exhaustion of state-court
            remedies,

           the congressional determination that piecemeal review
            generally slows the litigation,

           the universal recognition that habeas cases should proceed
            expeditiously, and

           the congressional objective in the Antiterrorism and Effective
            Death Penalty Act to streamline habeas proceedings.

Rhines v. Weber, 544 U.S. 269, 276–78 (2005); see Howard v. Norris, 616

F.3d 799, 802–03 (8th Cir. 2010) (stating that “Rhines effectively balances

the state’s interest in avoiding delay in a habeas proceeding, with the

petitioner’s (and the state’s) interest in having habeas claims addressed

first in state court”); see also Grace v. Vannoy, 826 F3d 813, 819 (5th Cir.

2016) (stating that in Rhines, “the Supreme Court implicitly de-emphasized

the importance of the state’s interests in finality and speedy resolution of

mixed federal petitions”).

      If we were to intervene after a district court granted a stay, would

our intervention quicken or slow the litigation? Here, the district court

stayed the proceedings for only a single claim and stated that the

proceedings would continue on all of the other habeas claims. If we were


                                      32
to interject ourselves now, we could inadvertently trigger simultaneous

litigation of the same case in three courts:

      1.    the state district court or the state appellate court,

      2.    the federal district court, and

      3.    our court.

We question the efficiency of duplicative litigation in three courts. See

Swanson v. DeSantis, 606 F.3d 829, 833 (6th Cir. 2010) (“Claim-by-claim

litigation in the district and appellate courts ‘undermines [Congress’] goal

of streamlining federal habeas proceedings . . . .” (emphasis and alteration

in original) (quoting Rhines v. Weber, 544 U.S. 269, 277 (2005))).

      But double or triple litigation tracks could create not only

inefficiency but also more delay. For example, if we were to affirm the

grant of a stay, we could be needlessly slowing the habeas litigation for the

time that we take to decide the appeal. And, of course, district courts

aren’t limited to the number of Rhines stays in a single case. Here, for

example, the district court has issued two Rhines stays. If those stays had

triggered the collateral-order doctrine, we could have slowed the litigation

twice already with the possibility of a third delay when the case ends in

district court. In these circumstances, we decline to single out Rhines stays




                                       33
as a class of orders that would be resolved more quickly by authorizing

piecemeal appeals. 16

      Our dissenting colleague disagrees, stating that this is not the

relevant question. Dissent at 21. But we are simply addressing the

arguments presented by Utah and our dissenting colleague. Both argue that

interlocutory review is essential to prevent delays in enforcing the State’s

criminal judgment. Indeed, while challenging our characterization of the

question, the dissent insists that “[t]he delay—which is, in itself, a win for

Petitioner—is exactly what harms the State’s interest.” Id. at 21. In short,

the arguments by Utah and our dissenting colleague require us to consider

whether piecemeal review would truly promote the State’s interest in

expeditious enforcement of its criminal judgments or cause more delay.




16
      Utah contends that these stays have “become the norm” for Utah’s
death row inmates. In fact, as Utah points out, seven Utah inmates on death
row (including Mr. Kell) have requested Rhines stays. The district court
denied two of these requests. Honie v. Benzon, No. 2:07-cv-628 JAR, dkt.
no. 120 (D. Utah. Dec. 13, 2017); Lafferty v. Benzon, No. 2:07-cv-322 DB,
dkt. no. 379 (D. Utah Oct. 30, 2015). And in a third case, the respondent
did not object to a Rhines stay. Carter v. Benzon, No. 2:02-cv-326 TS, dkt.
nos. 567, 576 (D. Utah Mar. 1, 2016). We thus know only that a slight
majority of capital defendants in Utah have obtained Rhines stays over an
objection. Archuleta v. Benzon, No. 2: 07-cv-630 TC, dkt. no. 107 (D. Utah
Nov. 12, 2014); Kell v. Benzon, No. 2: 07-cv-359, dkt. nos. 51, 258 (D.
Utah Oct. 8, 2009, Nov. 16, 2017); Taylor v. Benzon, No. 2: 07-cv-194 TC,
dkt no. 45 (D. Utah Feb. 14, 2008); Menzies v. Benzon, No. 2:03-cv-902
TC, dkt. nos. 41, 47 (D. Utah Oct. 27, 2004, May 5, 2005).


                                      34
      Utah and the dissent also argue that waiting for a final judgment

might prevent any appeal of an order granting a Rhines stay. 17 They

apparently assume that Rhines stays will always become moot even when

they ultimately lead to a grant of habeas relief. But neither Utah nor the

dissent says why a Rhines stay would always become moot with a grant of

habeas relief. 18 See Thompson v. Frank, 599 F.3d 1088, 1090 (9th Cir.

2010) (declining to apply the collateral-order doctrine to a Rhines stay

because it would be reviewable after the final judgment). And we don’t

ordinarily construct arguments in support of appellate jurisdiction. See

United States ex rel. Ramseyer v. Century Healthcare Corp., 90 F.3d 1514,

1518 n.2 (10th Cir. 1996) (“Our duty to consider unargued obstacles to

subject matter jurisdiction does not affect our discretion to decline to

consider waived arguments that might have supported such jurisdiction.”



17
      Rather than await a final judgment, the government could have
sought a writ of mandamus. See Gulfstream Aerospace Corp. v. Mayacamas
Corp., 485 U.S. 271, 288 n.13 (1988) (“Issuance of a writ of mandamus
will be appropriate in exceptional cases involving stay orders.”); In re
Kozeny, 236 F.3d 615, 619–20 (10th Cir. 2000) (two-judge motions panel)
(concluding that review of a stay order was properly before the Court of
Appeals on a petition for mandamus).
18
      Utah devoted a single sentence to this issue, writing (with no
explanation) that “[t]he grant of a Rhines stay will always be moot and
unreviewable on plenary appeal.” Appellant’s Opening Br. at 6. In
response, Mr. Kell argued that if the district court grants relief on the
stayed claim, the Court of Appeals could reverse the entry of a Rhines stay
and find the claim unexhausted. Appellee’s Response Br. at 6. Utah failed
to respond to this argument in its reply brief.
                                      35
(emphasis in original)); see also Raley v. Hyundai Motor Co., 642 F.3d

1271, 1275 (10th Cir. 2011) (Gorsuch, J.) (“It is the appellant’s burden,

not ours, to conjure up possible theories to invoke our legal authority to

hear her appeal.”). Given our reluctance to construct arguments for

appellate jurisdiction, we cannot assume—as Utah and the dissent do—that

review of a Rhines stay would become moot if Mr. Kell were to obtain

habeas relief.

      Even if review of the grant of a Rhines stay would eventually become

moot, however, the final judgment would certainly be appealable. See

Alexander v. U.S. Parole Comm’n, 514 F.3d 1083, 1097 (10th Cir. 2008)

(stating that a conditional writ of habeas corpus is final, creating appellate

jurisdiction); Burton v. Johnson, 975 F.2d 690, 693-94 (10th Cir. 1993)

(stating that a conditional writ of habeas corpus was an appealable final

judgment). Because the district court’s ultimate rulings on the habeas

claims would be reviewable after the final judgment, the collateral-order

doctrine’s third element would remain unsatisfied even if the grant of a

Rhines stay were to become moot. See Bean v. Dormire, 10 F.3d 538, 539

(8th Cir. 1993) (per curiam) (holding that the third element of the

collateral-order doctrine is unsatisfied in a case involving the stay of a

prisoner’s § 1983 action because the prisoner’s underlying claims would be

reviewable later even if the stay itself were otherwise unreviewable). The

only difference is that waiting for a final judgment would postpone the

                                      36
appeal. But as discussed above, the delay results from a congressional

policy choice. See pp. 28–34, above.

                                 * * *

      The issues in Rhines stays are not categorically separate from the

merits and can be effectively reviewed in an appeal from a final judgment.

So two of the three elements of the collateral-order doctrine are absent,

precluding appellate jurisdiction.

      C.    The Supreme Court’s consideration of the merits in Rhines
            does not support jurisdiction here.

      Finally, Utah contends that appellate jurisdiction is supported by the

Supreme Court’s decision in Rhines to reach the merits. This contention is

based on two steps:

      1.    Rhines v. Weber was appealed to the Eighth Circuit as a
            collateral order. See Rhines v. Weber, 346 F.3d 799, 800 (8th
            Cir. 2003) (per curiam).

      2.    If the Eighth Circuit had lacked jurisdiction in Rhines, the
            Supreme Court would not have reached the merits.

We reject this contention.

      In Rhines, appellate jurisdiction was not mentioned in any of the

briefs or in the Supreme Court’s opinion. And “[w]hen a potential

jurisdictional defect is neither noted nor discussed in a federal decision,

the decision does not stand for the proposition that no defect existed.”

Ariz. Christian School Tuition Org. v. Winn, 563 U.S. 125, 144 (2011).



                                       37
      But it wouldn’t matter here even if the Supreme Court had implicitly

blessed application of the collateral-order doctrine in Rhines. Before

Rhines was appealed to the Eighth Circuit, that court’s opinion in

Carmichael v. White had allowed stays of mixed habeas petitions only in

“truly exceptional circumstances.” Carmichael v. White, 163 F.3d 1044,

1045 (8th Cir. 1998). So when Rhines was appealed to the Eighth Circuit,

the court applied the test that had been used in Carmichael. See Rhines v.

Weber, 346 F.3d 799, 800 (8th Cir. 2003) (per curiam) (citing Carmichael,

163 F.3d at 1045).

      When Rhines later went to the Supreme Court, the parties disagreed

over the validity of the Eighth Circuit’s test and the extent of a district

court’s authority to stay, consider, or dismiss mixed habeas petitions. See

Rhines v. Weber, 544 U.S. 269, 273 (2005). The Supreme Court resolved

this disagreement in Rhines by creating a new test for stays when some of

the habeas claims are unexhausted. See id. at 277–78.

      Given the Supreme Court’s creation of a new test in Rhines, our

consideration of Utah’s appeal would entail

           the application of the Rhines factors rather than the previous
            Eighth Circuit test and

           the appropriateness of a stay rather than the district court’s
            authority to stay, consider, or dismiss mixed habeas petitions.

These issues did not exist when Rhines was appealed to the Eighth Circuit.

So even if the Supreme Court had silently concluded that the collateral-
                                      38
order doctrine applies to stays granted under the test in Carmichael, that

conclusion would not apply to an appeal addressing the appropriateness of

a stay based on the Rhines factors. See Howard v. Norris, 616 F.3d 799,

802–03 (8th Cir. 2010) (noting that the Eighth Circuit’s pre-Rhines

rationale for applying the collateral-order doctrine to stays of habeas

proceedings was “no longer applicable”). As a result, Rhines’s procedural

posture supplies no meaningful guidance on our jurisdictional issue.

5.   Conclusion

     We lack appellate jurisdiction. A Rhines stay is not a final decision,

and two elements of the collateral-order doctrine are not met. This doctrine

applies only when the order conclusively decides an important question,

separate from the merits, that would be effectively unreviewable in a direct

appeal from a final judgment. But when Rhines stays are viewed

categorically, the issues are generally inseparable from the merits and

reviewable after entry of the final judgment. We thus lack appellate

jurisdiction and dismiss the appeal.




                                       39
17-4191, Kell v. Benzon

BALDOCK, Circuit Judge, dissenting:

       Today, this Court holds we do not have appellate jurisdiction over grants of Rhines

stays in capital cases. In so holding, the Court fails to see the forest for the trees. Despite

the Supreme Court’s repeated admonitions that we should give 28 U.S.C. § 1291 a

“practical” rather than a “technical” construction, the Court takes an overly technical view

of § 1291 by neglecting to put the grant of a Rhines stay in the proper context of AEDPA

and the policy behind enforcing a stringent final judgment rule. The Court further ignores

salient Supreme Court precedent about the collateral order doctrine and severely

understates a state’s important interest in executing its sentence of death without delay—

in this case, against Petitioner Troy Kell, who brutally murdered a fellow inmate almost

twenty-five years ago. For these reasons, I cannot join the Court’s opinion.

                                              I.

       The Court’s opinion brings to mind the 1989 Report of the Ad Hoc Committee on

Federal Habeas Corpus in Capital Cases, which was formed by Chief Justice Rehnquist

and chaired by Justice Powell. Judicial Conference of the U.S., Ad Hoc Comm. on Fed.

Habeas Corpus in Capital Cases, Comm. Report and Proposal (Aug. 23, 1989) [hereinafter

Powell Comm. Report]. The Committee determined federal habeas law “has led to

piecemeal and repetitious litigation, and years of delay between sentencing and a judicial

resolution as to whether the sentence was permissible under the law.” Id. at 1. The

Committee specifically noted: “The lack of coordination between the federal and state legal
systems often results in inefficient and unnecessary steps in the course of litigation.” Id.

at 2.

        Against this backdrop, Congress passed the Antiterrorism and Effective Death

Penalty Act of 1996 (AEDPA)—the long title of which is “An Act to deter terrorism,

provide justice for victims, provide for an effective death penalty, and for other purposes.”

Pub. L. No. 104-132, 110 Stat. 1214 (1996) (emphasis added). In providing for an effective

death penalty, AEDPA aims to “reduce delays in the execution of state and federal criminal

sentences, particularly in capital cases.” Rhines v. Weber, 544 U.S. 269, 276 (2005) (citing

Woodford v. Garceau, 538 U.S. 202, 206 (2003)). Toward this end, AEDPA imposes a

one-year statute of limitations on the filing of a federal habeas petition. 28 U.S.C.

§ 2244(d). Another purpose of AEDPA is to promote comity by “encourag[ing] petitioners

to seek relief from state courts in the first instance.” Rhines, 544 U.S. at 276. AEDPA

achieves this goal by “tolling the 1-year limitations period while a ‘properly filed

application for State post-conviction or other collateral review’ is pending.” Id. (citing 28

U.S.C. § 2244(d)(2)).

        Prior to the passage of AEDPA, a district court was required to dismiss a federal

habeas petition that included both exhausted and unexhausted claims—that is, a “mixed”

petition. Rose v. Lundy, 455 U.S. 509, 510 (1982). After dismissal, a petitioner could

either resubmit the habeas petition with only exhausted claims or exhaust his claims in state

court and later file a new petition in federal court. Id. The Powell Committee specifically

identified this “moving back and forth between the federal and state systems in the process

of exhausting state remedies” as one of the aforementioned “inefficient and unnecessary

                                             2
steps in the course of litigation.” Powell Comm. Report, supra page 1, at 2. After Congress

passed AEDPA, Lundy’s total exhaustion rule created a problem when petitioners filed

mixed petitions in federal court. Because of the new one-year statute of limitations,

dismissal of mixed petitions pursuant to Lundy likely foreclosed the possibility of federal

review. Rhines, 544 U.S. at 275. To prevent this result, district courts began staying,

instead of dismissing, the federal habeas case to allow the petitioner to exhaust his claims

in state court. Id. at 276. The district court would then lift the stay after the petitioner

exhausted his claims and resume federal proceedings. Id. at 276–77.

       In Rhines, the Supreme Court upheld this stay-and-abeyance procedure but

acknowledged “[s]tay and abeyance, if employed too frequently, has the potential to

undermine” the purposes of AEDPA. Id. at 277. Rather than reducing delays in the

execution of a sentence, stay and abeyance “allow[s] a petitioner to delay the resolution of

the federal proceedings.” Id. And rather than encouraging petitioners to first seek relief in

state court, stay and abeyance “decreas[es] a petitioner’s incentive to exhaust all his claims

in state court prior to filing his federal petition.” Id. Stay and abeyance potentially

undermines AEDPA’s purposes even more in capital cases, for capital petitioners alone

have every incentive “to prolong their incarceration and avoid execution of the sentence of

death.” Id. at 277–78; see also Lundy, 455 U.S. at 520 (“The [non-capital] prisoner’s

principal interest, of course, is in obtaining speedy federal relief on his claims.”). Thus,

the Supreme Court cautioned that stay and abeyance of mixed petitions “should be

available only in limited circumstances.” Id. at 277 (emphasis added). Specifically, stay

and abeyance is only available if “[1] the petitioner had good cause for his failure to

                                              3
exhaust, [2] his unexhausted claims are potentially meritorious, and [3] there is no

indication that the petitioner engaged in intentionally dilatory litigation tactics.” Id. at 278.

                                               II.

       In 1994, Petitioner Troy Kell, a white supremacist incarcerated in state prison,

stabbed African-American inmate Lonnie Blackmon sixty-seven times. Petitioner’s attack

lasted approximately two and a half minutes, during which Petitioner walked away twice

only to return again to Blackmon’s writhing body to continue to stab him. Blackmon, who

was handcuffed and held down by Petitioner’s accomplice during the attack, bled to death.

The facts of the murder have never been in dispute, as the murder was captured on prison

security video. Petitioner proceeded to trial, and in 1996, a jury found Petitioner guilty of

aggravated murder and sentenced him to death. In 2002, the Supreme Court of Utah upheld

his conviction and sentence on direct appeal. State v. Kell, 61 P.3d 1019 (Utah 2002).

Petitioner then pursued state post-conviction relief. The post-conviction court dismissed

the petition, and the Supreme Court of Utah upheld this dismissal in 2008. Kell v. State,

194 P.3d 913 (Utah 2008). In January 2009, Petitioner filed a pro se motion for relief under

Utah Rule of Civil Procedure 60(b), alleging ineffective assistance of his appointed post-

conviction counsel. Later in 2009, Petitioner, through appointed counsel, filed a federal

habeas petition. Shortly thereafter, Petitioner sought and received a Rhines stay in his

federal case while he pursued his claims in state court. In 2012, Petitioner’s state claims

were denied. Kell v. State, 285 P.3d 1133 (Utah 2012).

       Petitioner’s federal case resumed after the three-year Rhines stay.             In 2013,

Petitioner filed an amended habeas petition. In this petition filed seventeen years after his

                                               4
conviction, Petitioner raised the new claim that the trial court gave an unconstitutional

supplemental jury instruction that shifted the burden of proof onto Petitioner during the

penalty phase deliberations. In support, Petitioner attached three juror declarations signed

eight months before he filed his amended petition. Two jurors recalled the trial judge

speaking to the jury after deliberations began. The other juror recalled, in more specificity,

that when the judge spoke to the jurors during deliberations, he said “that [Petitioner’s]

attorney’s [sic] had to show us that [Petitioner’s] life should be spared.” ROA Vol. IV,

666. Petitioner noted “[t]here are no indications in the trial transcripts of a question from

the jury after the beginning of deliberations, either during the guilt or penalty phases.” Id.

Petitioner concluded: “The error that resulted from [the trial judge’s] ex parte response

which shifted the burden of proof for the entire penalty proceeding away from the State

and onto [Petitioner], was a prejudicial error of constitutional magnitude, requiring

reversal.” Id. at 666–67.

       Over four and a half years after filing his amended habeas petition, Petitioner filed

a motion for a second Rhines stay so that he could exhaust his supplemental-instruction

claim (and another claim not relevant to this appeal) in state court. 1 In November 2017,

the district court granted the stay, holding Petitioner satisfied the three Rhines elements

because (1) there was good cause for not previously exhausting the supplemental-



       1
         The Court states that Petitioner requested a stay in 2014. Maj. Op. at 15 n.8. Just
to be clear, this “request” consisted of one sentence buried in a 208-page reply brief to his
petition, which obviously has not been ruled on. ROA Vol. VI, 1278. The fact remains
that Petitioner did not file a motion to stay regarding the issue underlying this appeal until
2017—over four and a half years after filing his amended habeas petition.
                                              5
instruction claim; (2) the claim was potentially meritorious; and (3) there was no indication

Petitioner engaged in abusive or dilatory tactics. As to good cause, Petitioner argued he

did not previously exhaust the supplemental-instruction claim because his post-conviction

counsel was ineffective and failed to interview any jurors. In addressing this claim, the

district court first explained that neither Supreme Court nor Tenth Circuit precedent has

defined “good cause” in the Rhines context. As a result, some district courts have held

“good cause in the Rhines context is akin to good cause to excuse procedural default in

federal court,” while others have given it a “more expansive and equitable reading.” ROA

Vol. VII, 1725. Relying on a Ninth Circuit opinion and two District of Utah cases, the

district court adopted the latter standard that “good cause for a Rhines stay cannot be any

more demanding than a showing of cause for procedural default under Martinez v. Ryan,

566 U.S. 1 (2012), and, in fact, may be less demanding.” Id. at 1726 (citing Blake v. Baker,

745 F.3d 977 (9th Cir. 2014); Lafferty v. Crowther, No. 2:07-CV-322, ECF No. 379 (D.

Utah Oct. 30, 2015); Archuleta v. Crowther, No. 2:07-CV-630, ECF No. 107 (D. Utah

Nov. 12, 2014)). After establishing the standard, the court concluded that Petitioner’s

“post-conviction counsel’s deficient performance constitutes cause under Rhines.” Id. at

1727.

        Regarding the potential merit of the supplemental-instruction claim, the district

court did not consider the State’s arguments that the claim would be time-barred or

procedurally barred in state court. Invoking notions of “federalism” and “comity,” the

court held the state courts must “have the opportunity to make those procedural decisions.”

Id. at 1728–29. The court then explained Petitioner’s claim and apparently held it was

                                             6
potentially meritorious. The district court’s analysis—which, again, purports to be about

whether the supplemental-instruction claim was potentially meritorious—reads in full:

       Counsel in [Petitioner’s] state habeas proceedings admitted that he was
       unaware of this issue because he failed to speak with any of the jurors, and
       that there was no strategic reason for his failure to do so. Because counsel
       was unaware of the issue, he failed to raise this claim to the state court,
       meaning that [Petitioner] has been denied the opportunity to have this
       potentially significant claim reviewed by the state court. Counsel’s failure to
       raise this potentially meritorious claim constitutes good cause under Rhines.

Id. at 1732 (citation omitted). In other words, the district court concluded Petitioner’s claim

was potentially meritorious without analyzing whether the claim was potentially

meritorious. Instead, the district court looked to Petitioner’s counsel’s failure to investigate

and raise the claim in state court—considerations not at all relevant to whether Petitioner’s

constitutional rights were potentially violated by an alleged ex parte supplemental jury

instruction—and confusingly determined this failure constitutes “good cause,” a

conclusion the court had already reached in element one.

       Lastly, the district court held there was “no indication that [Petitioner] has engaged

in intentional or abusive dilatory litigation tactics.” Id. at 1733. The court reasoned federal

proceedings were stayed until 2012, and Petitioner had followed the case management

schedule. Rejecting the State’s argument that nothing prevented Petitioner from bringing

the claim in state court earlier, the court held Petitioner satisfied the third Rhines element.

       After determining all three elements were satisfied, the district court issued the stay.

Only then did Petitioner file a petition in state court raising the supplemental-instruction

claim. Not surprisingly, the state trial court has since rejected this claim as both time and



                                               7
procedurally barred. The case is now pending before the Supreme Court of Utah. Kell v.

Benzon, No. 20180788 (appeal docketed Oct. 1, 2018).

       In the meantime, the State requested that the district court certify for immediate

appeal its grant of a second Rhines stay under 28 U.S.C. § 1292(b). The district court

denied the State’s request because “there is not sufficient basis to find a difference of

opinion on which [good cause] standard should apply”—a conclusion that is simply

impossible to reconcile with the court’s previous order noting district courts have applied

different “good cause” standards. Doc. 279, at 4. The State also sought to appeal the stay

pursuant to 28 U.S.C. § 1291, arguing (1) the standard for “good cause” under Rhines

should be the same as “cause” to overcome procedural default and (2) the district court

abused its discretion under all three Rhines elements in granting the stay. Before we can

reach the merits of these arguments, we must of course have jurisdiction to do so. Because

this is an interlocutory appeal and the district court oddly enough saw fit to deny the State’s

request for certification of appeal under § 1292(b), the only potential basis for this Court

to exercise jurisdiction is § 1291 by way of the collateral order doctrine. 2


       2
         I preface my discussion of the collateral order doctrine by noting Rhines itself was
appealed to the Eighth Circuit pursuant to the collateral order doctrine. Rhines v. Weber,
346 F.3d 799, 800 (8th Cir. 2003) (per curiam) (“We have jurisdiction under the collateral
order doctrine to review an interlocutory order holding a habeas petition in abeyance
pending exhaustion of state court remedies.”), vacated on other grounds, 544 U.S. 269
(2005). The Supreme Court granted certiorari in the case and, without mentioning the
jurisdictional issue, proceeded to the merits. Rhines, 544 U.S. 269. Even more, the
Supreme Court remanded the case to the Eighth Circuit to exercise jurisdiction and
adjudicate the case in accordance with the Supreme Court’s opinion. Id. at 279.
       Federal courts, including the Supreme Court, “have an independent obligation to
determine whether subject-matter jurisdiction exists, even in the absence of a challenge
from any party.” Arbaugh v. Y&H Corp., 546 U.S. 500, 514 (2006). The Supreme Court
                                              8
                                             III.

       This Court has “jurisdiction of appeals from all final decisions of the district courts

of the United States[.]” 28 U.S.C. § 1291. Encompassed in section 1291’s definition of

“final decisions” is “a ‘small class’ of collateral rulings that, although they do not end the

litigation, are appropriately deemed ‘final.’” Mohawk Indus., Inc. v. Carpenter, 558 U.S.

100, 106 (2009). This “small class” includes decisions that “finally determine claims of

right separable from, and collateral to, rights asserted in the action, too important to be

denied review and too independent of the cause itself to require that appellate consideration

be deferred until the whole case is adjudicated.” Cohen v. Beneficial Indus. Loan Corp.,

337 U.S. 541, 546 (1949) (emphasis added). The Supreme Court “has long given [section

1291] this practical rather than a technical construction,” id. (emphasis added), and has

emphasized the class of collaterally appealable orders is “narrow and selective in its

membership,” Will, 546 U.S. at 350. As the Court’s opinion explains, to fall within this

narrow class of decisions, the order must (1) be “conclusive”; (2) “resolve important

questions separate from the merits”; and (3) be “effectively unreviewable on appeal from



has undertaken this independent obligation and vigilantly guarded the exclusivity of the
collateral order doctrine. See Will v. Hallock, 546 U.S. 345, 350 (2006) (“[W]e have meant
what we have said; although the Court has been asked many times to expand the ‘small
class’ of collaterally appealable orders, we have instead kept it narrow and selective in
membership.”). In Will, for example, after granting certiorari on the merits of an issue, the
Supreme Court vacated and remanded to the Court of Appeals to dismiss for lack of
jurisdiction because the underlying order was not immediately appealable under the
collateral order doctrine. Id. at 349. At the same time, as this Court points out, the Supreme
Court’s prior exercise of jurisdiction and subsequent remand in Rhines do not necessarily
stand for the proposition that the stay was immediately appealable under the collateral order
doctrine. See Hagans v. Lavine, 415 U.S. 528, 535 n.5 (1974).

                                              9
the final judgment in the underlying action.” Swint v. Chambers Cty. Comm’n, 514 U.S.

35, 41 (1995). As no question exists whether the first element is satisfied, I turn to the

second and third elements. 3

                                              A.

       The second collateral order doctrine element requires the order to “resolve important

questions separate from the merits.” Swint, 514 U.S. at 41. This separateness requirement

“is a distillation of the principle that there should not be piecemeal review of ‘steps towards

final judgment in which they will merge.’” Moses H. Cone, 460 U.S. at 12 n.13. The Court

and I differ on exactly what must be separate in order to satisfy this element. Whereas this

Court holds the entire collateral order must be completely separate from the merits, I

contend that at least one issue involved in granting a Rhines stay must be completely

separate from the merits. This is clearly what the Supreme Court has required. E.g.,

Microsoft Corp. v. Baker, 137 S. Ct. 1702, 1708 n.3 (2017) (stating the decision must

“resolve important issues ‘completely separate from the merits’” (emphasis added)); Will,

546 U.S. at 349 (stating the order must “resolve an important issue completely separate

from the merits of the action” (emphasis added)); Sell v. United States, 539 U.S. 166, 176


       3
          An order is “conclusive” when “nothing in the subsequent course of the
proceedings in the district court . . . can alter the court’s conclusion.” See Mitchell v.
Forsyth, 472 U.S. 511, 527 (1985). This element is plainly met here. Nothing was tentative
about the determination that Petitioner’s federal proceedings would halt while Petitioner
exhausted his supplemental-instruction claim in state court. A grant of a Rhines stay is
only subject to revision in the same way every order is subject to revision. See Moses H.
Cone Mem’l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 12 & n.14 (1983). This indicates
“nothing in the subsequent course of the proceedings in the district court . . . can alter the
court’s conclusion” that Petitioner was entitled to a Rhines stay. Accordingly, the district
court’s grant of a Rhines stay is conclusive.
                                              10
(2003) (stating a decision is “appealable as a collateral order when it . . . resolves an

important issue completely separate from the merits of the action” (emphasis added)

(brackets and quotations omitted)); Quackenbush v. Allstate Ins. Co., 517 U.S. 706, 712

(1996) (stating the order must “conclusively determine a disputed question that is

completely separate from the merits of the action” (emphasis added) (brackets and

quotations omitted)); Johnson v. Jones, 515 U.S. 304, 310–11 (1995) (stating the order

must “resolve an important issue completely separate from the merits of the action”

(emphasis added)); Dig. Equip. Corp. v. Desktop Direct, Inc., 511 U.S. 863, 867 (1994)

(stating the decision must “resolve important questions completely separate from the

merits” (emphasis added)); Richardson-Merrell, Inc. v. Koller, 472 U.S. 424, 431 (1985)

(stating the order must “resolve an important issue completely separate from the merits of

the action” (emphasis added)); Coopers & Lybrand v. Livesay, 437 U.S. 463, 468 (1978)

(stating “the order must . . . resolve an important issue completely separate from the merits

of the action” (emphasis added)); Abney v. United States, 431 U.S. 651, 658 (1977) (stating

the decision in Cohen “resolved an issue completely collateral to the cause of action

asserted” (emphasis added)).

       Of utmost importance, in each of these cases, “completely separate” modified

“issues,” “an issue,” “a question,” and “questions,” not “an order.” Therefore, the only

reasonable conclusion to be reached is that there must be “an issue” that is “completely

separate” from the merits of the action. Such a conclusion is consistent with the Supreme

Court’s explicit rejection of the argument that there must be no overlap whatsoever

between a collateral order and the merits of a claim. Mitchell, 472 U.S. at 529 n.10. In

                                             11
Mitchell, the Supreme Court explained that if “any factual overlap between a collateral

issue and the merits of the plaintiff’s claim is fatal to a claim of immediate appealability,”

then denials of claims of double jeopardy and absolute immunity could not be appealed,

for such claims necessarily require an inquiry into a plaintiff’s factual allegations. Id. But

these claims are appealable pursuant to the collateral order doctrine. Nixon v. Fitzgerald,

457 U.S. 731, 742–43 (1982); Abney, 431 U.S. at 662. With this understanding, the

Supreme Court held an order denying qualified immunity is immediately appealable.

Mitchell, 472 U.S. at 530.

       The Court today understands this to contravene the requirement that we must view

the class of orders as a whole. To be clear, I absolutely agree with the well-settled

requirement that we must focus on the class of orders. We cannot focus on the class of

orders, however, without looking to the issues the class of orders generally raise. Here, we

must look to Rhines-stay-specific issues. Looking to Rhines-stay-specific issues is wholly

different than analyzing the issues on a case-by-case basis. At no point in this dissent do I

advocate for analyzing case-specific issues—something the Court and I agree is

unacceptable. In sum, we must look to issues that orders granting Rhines stays generally

raise (as opposed to the issues this order granting a Rhines stay raises); if one or more of

these issues is completely separate from the merits, this element is satisfied. From what I

understand, the Court thinks we must look to issues that any order granting a Rhines stay

could hypothetically raise; if any of these issues overlap with the merits, this element is not

satisfied. This understanding does not comport with Supreme Court precedent, nor our

own. Mitchell, 472 U.S. at 529 n.10; United States v. Bolden, 353 F.3d 870, 876 (10th Cir.

                                              12
2003) (assuming without deciding an issue implicated in an order could overlap with the

underlying merits but that “on the whole such orders . . . satisfy the separability

requirement”).

       The requirement that there be “an issue” that is “completely separate” from the

merits is undoubtedly met in this case. In fact, at least three such issues are involved in

granting a Rhines stay. The first, which is a purely legal issue, is whether the appropriate

standard for “good cause” is akin to “cause” to overcome procedural default or is

something less stringent. “Cause” to overcome procedural default requires a petitioner to

show “something external to the petitioner, something that cannot fairly be attributed to

him” or his counsel prevented the petitioner from raising a claim. Coleman v. Thompson,

501 U.S. 722, 753 (1991). Neither we nor the Supreme Court has applied this definition

or otherwise defined “good cause” in the Rhines context. In dicta, however, the Supreme

Court has stated that “[a] petitioner’s reasonable confusion about whether a state filing

would be timely will ordinarily constitute ‘good cause’ for him to file in federal court.”

Pace v. DiGuglielmo, 544 U.S. 408, 416 (2005). This statement could be interpreted as

indicating a lesser standard than “cause” to overcome procedural default is appropriate for

“good cause” in the Rhines context. Accordingly, district courts are divided on what

standard to use. Compare Hernandez v. Sullivan, 397 F. Supp. 2d 1205, 1207 (C.D. Cal.

2005) (“[T]he Court deems it appropriate to look to procedural default case law for

guidance in determining whether Petitioner has demonstrated the requisite ‘good cause’

for failing to exhaust his unexhausted claims prior to filing this habeas action.”), with

Rhines v. Weber, 408 F. Supp. 2d 844, 849 (D.S.D. 2005) (“[T]his court believes that the

                                            13
Supreme Court suggested a more expansive definition of ‘good cause’ in Pace and Rhines

than the showing needed for ‘cause’ to excuse a procedural default.”). This issue is

critically important because the resolution of the standard could be the deciding factor in

many cases.

       Unfortunately, the Court today sidesteps the State’s purely legal argument about the

“good cause” standard and unnecessarily criticizes the State’s arguments by noting we

must look to categories of cases rather than the particular arguments raised in an individual

case. Maj. Op. at 12–15. But literally every grant of a Rhines stay, not just this particular

grant of a Rhines stay, must decide what the appropriate standard for determining “good

cause” is. 4 Ultimately, by giving this issue short shrift, the Court avoids acknowledging

the obvious: this is a purely legal issue that has no overlap with the merits of the case. In

other words, this issue is most assuredly “a legal issue that can be decided with reference

only to undisputed facts and in isolation from the remaining issues of the case.” Mitchell,

472 U.S. at 530 n.10.

       The second issue that does not overlap with the merits is whether the district court

can consider state time and procedural bars in determining whether a claim is “potentially



       4
         Given a district court must hold “good cause” exists (which requires defining the
“good cause” standard) in order to issue a Rhines stay, this fact is not up for debate. The
Court “see[s] the issue differently” because if the Court proceeded to the merits, we might
not reach the “good cause” issue and instead rule on other grounds. Maj. Op. at 14–15.
But the question is not whether this Court would necessarily have to rule on the issue. At
the risk of sounding like a broken record, the question is whether the district court’s order
resolves an issue that is completely separate from the merits. E.g., Will, 546 U.S. at 349.
In discussing whether this Court would have to decide the “good cause” standard, the Court
has taken the reader down an irrelevant rabbit hole.
                                             14
meritorious.” In this case, the district court answered in the negative: “[I]n considering

whether [Petitioner’s] claims are potentially meritorious, this court will not address

possible state court time and procedural bars, but will leave the determination of the

procedural posture of the claims to the state court.” ROA Vol. VII, 1729. The district

court supported its holding with statements from a district court order, two wholly

inapposite out-of-circuit opinions, and one Tenth Circuit opinion that does not address this

issue. Id. at 1728–29 (citing Lafferty v. Crowther, 2015 WL 6875393 (D. Utah 2015);

Simpson v. Camper, 927 F.2d 392, 393 (8th Cir. 1991); Pike v. Guarino, 492 F.3d 61, 74

(1st Cir. 2007); Fairchild v. Workman, 579 F.3d 1134, 1153 (10th Cir. 2009)). The district

court’s grasp at non-binding (and unpersuasive) authority to support its position is

understandable because, again, neither the Supreme Court nor the Tenth Circuit has

weighed in on whether the refusal to address possible state court time and procedural bars

is valid. Like the question of the good cause standard, this purely legal issue is clearly

completely separate from the merits of a petitioner’s claim.

       Additionally, the third Rhines element, which requires a court to consider whether

the petitioner engaged in intentionally dilatory litigation tactics, does not overlap with the

merits. While this element does not appear to present a purely legal issue, the facts

involved are completely separate from the facts involved in a petitioner’s unexhausted

claim. At this point, we have three issues, two of which are purely legal, that have no

overlap with the merits of a petitioner’s claim—none whatsoever. The Court today fails to

acknowledge this reality.



                                             15
       The Court instead focuses only on two issues that it asserts overlap with the merits:

the application of the “good cause” standard to the facts of the case and whether the claim

has “potential merit.” This latter issue, which is “a fraction of a fraction” of the total

inquiry in issuing a Rhines stay, undoubtedly overlaps with the merits. Rep. Br. at 5. The

former issue’s overlap with the merits, however, is questionable. The Court’s assertion

that the application of the good cause standard will “often overlap with a court’s

preliminary assessment of the merits” seems to me to be an exaggeration. Maj. Op. at 18.

The Court points to two situations in which this could happen: if a petitioner raises a Brady

claim and if a petitioner raises a different claim of ineffective assistance of counsel. As

explained above, I do not understand Supreme Court precedent to require us to engage in

a hypothetical inquiry of all possible permutations of claims that could be brought in order

to determine whether an order is appealable pursuant to the collateral order doctrine.

Accordingly, I remain focused on the issues grants of Rhines stays generally raise, rather

than every issue a grant of a Rhines stay could hypothetically raise.

       Even though the district court must consider some factual allegations in a petition

before granting a Rhines stay (a duty that the district court failed miserably to perform in

this case), a grant of a Rhines stay undoubtedly “resolve[s] important issues ‘completely

separate from the merits.’” Microsoft Corp., 137 S. Ct. at 1708 n.3. Accordingly, the

second element of the collateral order doctrine is satisfied. 5


       5
         In its discussion of the second element, the Court asserts: “if the district court
enters multiple Rhines stays, we could face three or more appeals with overlapping issues.”
Maj. Op. at 8. I understand that if Rhines stays are appealable and multiple Rhines stays
are entered, this Court could face three or more appeals. But the Court does not clarify
                                              16
                                              B.

       The third collateral order doctrine element requires the order to be “effectively

unreviewable on appeal from the final judgment in the underlying action.” Swint, 514 U.S.

at 41. This element, too, is undoubtedly met. At no other point will this Court have the

opportunity to decide the important issues at stake in granting a Rhines stay. Of course, if

the Petitioner obtains relief from the Utah Supreme Court, the Rhines stay issues will never

again arise in this case because Petitioner will be granted a new state trial. If the Utah

Supreme Court denies relief and then the district court denies habeas relief on the

previously unexhausted claim, the issues would be moot on appeal. Petitioner posits the

State could appeal the Rhines stay issues after final judgment if he ultimately obtains

habeas relief on the previously unexhausted claim. How can this possibly be? Say, the

Petitioner prevails in the district court and the State appeals, arguing among other things

that the district court abused its discretion in granting a Rhines stay years earlier. Would

the district court’s grant of a Rhines stay not be moot at that point? What relief could the

court possibly grant the State if it prevails on that claim?         None!    That particular

controversy is over.




when these potential “three or more appeals” would concern “overlapping issues.” Even
where a district court issues multiple Rhines stays, each Rhines stay concerns different
claims by a petitioner and therefore different issues. To illustrate, a district court issues a
Rhines stay on claim x, allowing the petitioner to exhaust the claim in state court. After
the petitioner exhausts claim x in state court and returns to federal court, the district court
is not going to issue another Rhines stay for the purpose of allowing the petitioner to
exhaust claim x. If there is a second Rhines stay, it would be issued for the petitioner to
exhaust claim y. If both of these Rhines stays are appealed and then the final judgment is
appealed, the “same issues” would not be before this Court three or more times.
                                              17
       The Court points out that “the district court’s ultimate rulings on the habeas claims

would be reviewable after the final judgment.” Maj Op. at 38–39. Of course. But that

certainly does not mean “the collateral-order doctrine’s third element would remain

unsatisfied even if the grant of a Rhines stay were to become moot.” Id. at 39. We are not

concerned here with whether other issues involved in this case, such as “the district court’s

ultimate rulings on the habeas claims,” would be reviewable on appeal of the final

judgment; we are concerned with whether the issues involved in granting a Rhines stay are

reviewable on appeal of the final judgment. 6

       Even assuming a court has the opportunity to review a district court’s issuance of a

Rhines stay after final judgment—a proposition I vehemently disagree with—we must then

look to the importance of the interests at stake.       Whether an order is “effectively

unreviewable” necessarily requires “a judgment about the value of the interests that would

be lost through rigorous application of a final judgment requirement.” Mohawk Indus.,

Inc, 558 U.S. at 107 (quoting Dig. Equip. Corp., 511 U.S. at 878–79). “That a ruling ‘may

burden litigants in ways that are only imperfectly reparable by appellate reversal of a final




       6
          The Court also states Petitioner could have filed a writ of mandamus rather than
await final judgment. Maj. Op. at 35 n.17. But a writ of mandamus is not the relief the
Supreme Court contemplated in Rhines. The standard for issuing a writ of mandamus is
higher than the abuse of discretion standard. In re Cooper Tire & Rubber Co., 568 F.3d
1180, 1186–87 (10th Cir. 2009). In fact, we have explicitly stated that “[t]here must be
more than what we would typically consider to be an abuse of discretion in order for the
writ to issue.” Id. at 1186. In Rhines, however, the Supreme Court stated three times that
the standard of review for Rhines stays is “abuse of discretion.” Rhines, 544 U.S. at 277–
79. Accordingly, the Supreme Court clearly contemplated Rhines stays to be reviewed on
direct appeal, rather than through a writ of mandamus.

                                             18
district court judgment . . . has never sufficed.’” Id. (quoting Dig. Equip. Corp., 511 U.S.

at 872). “Instead, 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. (quoting Will, 546 U.S. at 352–53) (emphasis added). The certain “high

order” values the Supreme Court has accepted as being important enough to not delay

review until the entry of final judgment include: “honoring the separation of powers,

preserving the efficiency of government and the initiative of its officials, respecting a

State’s dignitary interests, and mitigating the government’s advantage over the individual.”

Will, 546 U.S. at 352–53.

       The “decisive” question, then, is just this: does delaying review of the Rhines stay

until after a petitioner exhausts his claims in state court and returns to federal court “imperil

a substantial public interest” or “some particular value of a high order”? See Mohawk

Indus., Inc., 558 U.S. at 107. The answer is a resounding yes. The “substantial public

interest” or “value of a high order” at issue when a Rhines stay is granted is a state’s right

to enforce its criminal judgments, particularly in capital cases. “Our federal system

recognizes the independent power of a State to articulate societal norms through criminal

law; but the power of a State to pass laws means little if the State cannot enforce them.”

McClesky v. Zant, 499 U.S. 467, 491 (1991). In fact, the Supreme Court has held a state’s

“sovereign power to enforce the criminal law” is an interest of “great weight.” In re

Blodgett, 502 U.S. 236, 239 (1992) (per curiam). States suffer “severe prejudice” when

they are prevented from exercising this power. Id. (holding Washington “sustained severe

prejudice by [a] 2½-year stay of execution”). In particular, “the criminal law is deprived

                                               19
of much of its deterrent effect.” Teague v. Lane, 489 U.S. 288, 309 (1989); see also

McClesky, 499 U.S. at 491 (discussing the need for finality in criminal cases). Further, the

state loses legitimacy, as “[t]he resulting lack of finality undermines public confidence in

our criminal justice system.” Powell Comm. Report, supra page 1, at 1.

       Not only has the Supreme Court put “great weight” on a state’s power to enforce its

criminal law, Congress has also prioritized this power with the passage of AEDPA. One

of the driving forces in passing AEDPA was to “reduce delays in the execution of state and

federal criminal sentences, particularly in capital cases.”      Rhines, 544 U.S. at 276

(emphasis added). AEDPA has no teeth if federal habeas law still leads “to piecemeal and

repetitious litigation, and years of delay between sentencing and a judicial resolution as to

whether the sentence was permissible under law,” as it has in this case and potentially many

others. Powell Comm. Report, supra page 1, at 1. Supreme Court precedent and AEDPA

indicate a state’s ability to enforce its criminal judgments without delay is a “substantial

public interest” or “value of a high order” that ranks among “honoring the separation of

powers, preserving the efficiency of government and the initiative of its officials,

respecting a State’s dignitary interests, and mitigating the government’s advantage over

the individual.” Will, 546 U.S. at 352–53.

       The Court today does not dispute the importance of the issues at stake. Indeed, this

would be difficult to do in light of the fact that this Court has previously held an appeal

concerning an anti-SLAPP statute, which aims to “nip harassing litigation in the bud,” was

too important to be denied review until entry after final judgment. Los Lobos Renewable

Power, LLC v. Americulture, LLC, 885 F.3d 659, 666–67 (10th Cir. 2018). Instead, the

                                             20
Court focuses on “whether interlocutory review of Rhines stays would speed review or

slow it through piecemeal review.” Maj. Op. at 30. This is not the question under the third

element of the collateral order doctrine. 7 Again, the “decisive” question is whether

delaying review of the Rhines stay until after a petitioner exhausts his claims in state court

and returns to federal court “imperil a substantial public interest” or “some particular value

of a high order.” See Mohawk Indus., Inc., 558 U.S. at 107.

       Let us not forget: Petitioner stabbed Blackmon to death almost twenty-five years

ago; he was sentenced to death over twenty-two years ago; his direct appeals ended over

sixteen years ago; his state post-conviction proceedings ended over ten years ago; his

federal habeas petition was filed nearly ten years ago; he received his first Rhines stay,

which lasted three years, over nine years ago; and his amended petition was filed over six

years ago. The State of Utah most certainly has an undeniable interest, deemed important

by both the Supreme Court and Congress, to carry out its punishment against Petitioner

without further delay. This interest is indeed lost if the State cannot appeal the grant of the

Rhines stay now. The delay—which is, in itself, a win for Petitioner—is exactly what

harms the State’s interest. Because delaying review would jeopardize both “a substantial


       7
         Even so, the Court’s analysis of this question is divorced from reality. I suggest if
this court could review Rhines stays, the court might hold, for example, that “good cause”
is akin to “cause” under procedural default. Or perhaps the court would hold that district
courts’ refusals to take state time and procedural bars into account in deciding whether a
claim has potential merit does not comport with AEDPA or Rhines’s caution that stays be
granted in only “limited circumstances.” It would seem to me that if either of those very
possible things happened, interlocutory review of Rhines stays would undoubtedly speed
review over time, given district courts have issued multiple stays based on a lower standard
of “good cause” and an understanding that the district court cannot consider time and
procedural bars.
                                              21
public interest” and “some particular value of a high order,” the grant of a Rhines stay in a

capital case is “effectively unreviewable on appeal from a final judgment.”

                                           * * *

       The Court cites to three other circuits in support of its holding that a grant of a

Rhines stay is reviewable after final judgment: Grace v. Vannoy, 826 F.3d 813 (5th Cir.

2016); Howard v. Norris, 616 F.3d 799 (8th Cir. 2010); and Thompson v. Frank, 599 F.3d

1088 (9th Cir. 2010). The most important thing to note about Howard and Thompson is

that neither considers “the decisive consideration” of “whether delaying review until the

entry of final judgment ‘would imperil a substantial public interest’ or ‘some particular

value of a high order.’” Mohawk Indus., Inc., 558 U.S. at 107 (quoting Will, 546 U.S. at

352–53) (emphasis added); Howard, 616 F.3d at 802–803; Thompson, 599 F.3d at 1090.

This alone renders their analyses unpersuasive.

       Even if we push that crucial fact aside, these cases otherwise rest on flimsy

reasoning. In Thompson, the Ninth Circuit indeed held “[a] district court order staying

proceedings to allow a state habeas petition to exhaust claims in state court is reviewable

on appeal after final judgment.” 599 F.3d at 1090. In support, the Ninth Circuit cited two

cases: Valdovinos v. McGrath, 598 F.3d 568, 573–74 (9th Cir. 2010), vacated sub nom.

Horel v. Valdovinos, 562 U.S. 1196 (2011), and Olvera v. Giurbino, 371 F.3d 569, 574

(9th Cir. 2004). Olvera involved a district court’s refusal to stay proceedings and,

therefore, lends no support for the proposition for which the Ninth Circuit cited it. 371

F.3d at 574. Valdovinos, a vacated Ninth Circuit opinion, does not support Thompson’s

holding either. In Valdovinos, the State did not even argue the district court erred in

                                             22
granting a Rhines stay. Br. for Appellee, Valdovinos, 598 F.3d 568 (No. 08-15918), 2009

WL 2444195. Rather, the State argued that “the district court erred in allowing petitioner

to amend his petition to include new and revised claims he first presented in his traverse

after the AEDPA time limit had passed.” Id. Of course, because the State did not argue

the district court erred in granting a Rhines stay, the Petitioner did not argue such an issue

was moot. Reply Br., Valdovinos, 598 F.3d 568 (No. 08-15918), 2009 WL 2444196.

Perhaps confused, the Valdovinos court then—totally unsolicited—noted the district court

did not abuse its discretion in issuing a Rhines stay. 598 F.3d at 573–74. This flippant

advisory statement, which was made in passing as the Valdovinos court addressed the claim

the State actually made in that case, sheds absolutely no light on whether the grant of a

Rhines stay is effectively unreviewable on appeal from final judgment. Accordingly, by

relying solely on Olvera and Valdovinos, Thompson reached its holding on paper-thin

support, and this writer cannot take Thompson seriously for such a holding.

       The Court also cites to Howard, which held the grant of a Rhines stay “fails the third

condition [of the collateral order doctrine] ‘because a district court’s conclusion about

whether a habeas claim has been exhausted is addressable on appeal after final judgment.’”

616 F.3d at 802 (quoting Thompson, 599 F.3d at 1090). In Howard, the Eighth Circuit

noted it was “significant” that the petitioner did not “challenge the district court’s

application of the three Rhines factors, and thus [did] not challenge the delay involved in

the stay itself.” Id. at 803. Instead, the petitioner “challenge[d] the propriety of the stay

only as it relate[d] to the merits of whether the district court erred in concluding some of

[the petitioner’s] claims were unexhausted.” Id. Thus, Howard might not be applicable to

                                             23
our instant case, but even if it is, Howard’s sole reliance on Thompson in its one-sentence

analysis of whether the issues could be addressed on appeal renders its analysis

unpersuasive.

       The latest circuit to join the conversation is the Fifth Circuit in Grace. Grace relied

on Thompson and Howard—albeit in conjunction with a more thoughtful analysis—to

reach the conclusion that Rhines stays are not appealable orders. Grace, 826 F.3d at 820–

21. Of utmost importance, however, Grace was not a capital case. Id. at 819 (“Indeed,

Grace was sentenced to life in prison; he is not delaying execution of a capital sentence.”).

The interest involved in Grace is completely different than the interest at issue in this case.

Capital prisoners have every incentive to delay their proceedings, while other prisoners

have every incentive to expedite their proceedings. Because of this inherent difference

between capital and non-capital cases, Grace’s reasoning is not relevant to the instant

capital case. Nothing in these three cases moves me in the slightest from my view that

grants of Rhines stays in capital cases are effectively unreviewable on appeal from final

judgment.

                                              C.

       As if satisfying the three collateral order doctrine elements was not enough, the

policy behind limiting jurisdiction to “final” orders—which in many cases cuts against the

exercise of jurisdiction, see, e.g., Moses H. Cone, 460 U.S. at 31 (Rehnquist, J.,

dissenting)—supports our exercise of jurisdiction in this case. One policy behind section

1291’s “finality” requirement is to “prevent[] the debilitating effect on judicial

administration caused by piecemeal appeal disposition of what is, in practical consequence,

                                              24
but a single controversy.” Coopers & Lybrand, 437 U.S. at 471 (quoting Eisen v. Carlisle

& Jacquelin, 417 U.S. 156, 170 (1974)); see also Moses H. Cone, 460 U.S. at 31

(Rehnquist, J., dissenting) (“To be effective, judicial administration must not be leaden-

footed.”). In other words, the finality requirement of section 1291 prevents unnecessary

steps back and forth between the federal district court and the federal appellate court. But

ironically, piecemeal litigation is precisely what the issuance of a Rhines stay causes!8

Even though federal courts do not feel the “debilitating effect,” it is certainly felt by our

state brethren who are currently adjudicating Petitioner’s supplemental-instruction claim

that is in all likelihood time and procedurally barred.          The waste of state judicial

resources—not to mention the resources of the Utah Office of the Attorney General—is

plain. While this is not the particular “debilitating effect on judicial administration” the

finality requirement generally aims to prevent, it is no less of a “debilitating effect on

judicial administration” in state court. In sum, because a Rhines stay already causes

piecemeal litigation, the policy behind not exercising jurisdiction here—i.e., preventing

piecemeal litigation—rings hollow.

                                              IV.



       8
          Congress and the Supreme Court have determined this piecemeal litigation, which
is specifically caused by the total exhaustion requirement that renders Rhines stays
necessary, is justified by comity. That is, state courts should have the chance to decide all
issues before federal courts do. The Powell Committee questioned whether, in reality, we
promote comity by allowing the state court to decide an issue before the federal court can.
See Powell Comm. Report, supra page 1, at 22–23 (“Because of the existence of state
procedural default rules, exhaustion is futile in the great majority of cases. It serves the
state interest of comity in theory, but in practice it results in delay and undermines the state
interest in the finality of its criminal convictions.”).
                                              25
       The Supreme Court has made itself perfectly clear that only a “narrow class” of

decisions fall within the collateral order doctrine, and I have taken this directive to heart.

See Los Lobos Renewable Power, LLC, 885 F.3d at 673–76 (Baldock, J., dissenting from

the Court’s exercise of jurisdiction pursuant to the collateral order doctrine). The grant of

a Rhines stay in capital cases, however, is one of the few decisions that falls within the

narrow class. The Supreme Court clearly intended there to be meaningful restrictions on

when a district court may issue a Rhines stay. As the district court’s order demonstrates,

there currently are none.

       Because we have jurisdiction pursuant to the collateral order doctrine, I respectfully

dissent. I would proceed to the merits.




                                             26
