            IN THE UNITED STATES COURT OF APPEALS

                            FOR THE FIFTH CIRCUIT
                                        _______________

                                          m 01-60298
                                        _______________



                                       FRANK M. LEIGH,

                                                            Plaintiff-Appellant,

                                            VERSUS

                                       THOMAS E. VICE,

                                                            Defendant-Appellee.


                                 _________________________

                          Appeal from the United States District Court
                            for the Northern District of Mississippi
                                        (1:98-CV-22S)
                                _________________________

                                         February 7, 2002




Before SMITH and DEMOSS, Circuit Judges,            PER CURIAM:**
  and LAKE,* District Judge.
                                                       Frank Leigh appeals the denial of his mo-
                                                    tion to enjoin enforcement of an adverse deci-


                                                       **
                                                          Pursuant to 5TH CIR. R. 47.5, the court has
                                                    determined that this opinion should not be
                                                    published and is not precedent except under the
   *
    District Judge of the Southern District of      limited circumstances set forth in 5TH CIR. R.
Texas, sitting by designation.                      47.5.4.
sion of a state court, arguing that it conflicts        Vice to surrender the property, arguing that
with a prior ruling of the bankruptcy court in          under 11 U.S.C. § 365((d)(4), Vice had
violation of the All Writs Act, 28 U.S.C.               rejected the lease and surrendered it to him,
§ 1651, and the Anti-Injunction Act, 28                 the lessor.2 Vice requested an injunction
U.S.C. § 2283. Finding no error, we affirm.             preventing Leigh from taking possession of the
                                                        property. The bankruptcy court granted
                        I.                              Leigh’s motion and denied Vice’s. The
   In 1977, Thomas Vice agreed to lease a               bankruptcy case was closed in 1994.
commercial building owned by Leigh. The
lease was for fifteen years and gave Vice the              In November 1995, the Mississippi
option to renew for another fifteen years so            Supreme Court reversed in part, holding that
long as he did not default on the lease. Vice           Leigh had waived the right to object to Vice’s
had the right to cancel the lease on any default.       new sublessee, and Vice could renew the lease.
                                                           In January 1996, Leigh filed a motion in the
    The lease required Vice to obtain Leigh’s           bankruptcy court to determine his rights in the
written consent before subleasing the property.         wake of the Mississippi Supreme Court’s
In 1979, Vice changed sublessees without con-           decision. The bankruptcy court held that
sent; Leigh did not object. In 1988, Vice again         because Vice had not assumed the lease within
subletted without Leigh’s consent; again,               sixty days of his bankruptcy order, he had no
Leigh did not object. In 1989, Leigh became             claim to the property under bankruptcy law:
unhappy with the new sublessee and, in 1990,
notified Vice that he had breached the lease in            [Vice] did not properly pursue his
1988 by subletting without permission. Leigh               bankruptcy remedies. Because of his
filed a declaratory action in Mississippi                  chosen course of action, this is no
chancery court seeking a judgment that he had              longer a matter that should be
the right to cancel the lease or, alternatively,           adjudicated in the bankruptcy court. If
had the right not to renew the lease. The court            Vice is entitled to relief, he must obtain
ruled for Leigh.                                           same in state court. If the failure to post
                                                           a supersedeas bond proves fatal, this
   Vice appealed, but without posting a bond               shortcoming cannot and should not,
and thus without supersedeas. Accordingly,
his appeal did not suspend enforcement of the
                                                           2
chancery court’s judgment.1                                    The section provides that

   In May 1992, while the appeal was pending               if the trustee does not assume or reject an
and before the lease expired, Vice filed for               unexpired lease of nonresidential real prop-
                                                           erty under which the debtor is the lessee
chapter 11 bankruptcy. Vice (either as or
                                                           within 60 days after the date of the order for
through the trustee of the bankruptcy estate)              relief, or within such additional time as the
neither assumed the lease within sixty days of             court, for cause, within such 60-day period,
the order granting bankruptcy relief nor                   fixes, then such lease is deemed rejected,
requested additional time. Leigh moved for                 and the trustee shall immediately surrender
                                                           such nonresidential property to the lessor.

   1
       MISS. CODE. ANN § 11-51-31 (2001).               11 U.S.C. § 165(d)(4).

                                                    2
   absent the timely filing of the                    found that under § 365(d)(4), “the ultimate
   appropriate § 365(d)(4) motions, be                question of the continued validity of the lease
   rectified in this court.                           at issue was a matter for the state courts of
                                                      Mississippi.” Further, the court deemed
   Both parties requested the court clarify its       Leigh’s “invocation of the All Writs Act . . .
order. Leigh argued that because Vice had not         nothing more than an attempt to take an out-
assumed the lease within the sixty-day                of-time appeal of what was in essence an ad-
window, the lease had been terminated, and            verse ruling of the bankruptcy court.”
there was nothing left to litigate and there
were no lease rights to enforce. The court                                   II.
held that Vice had no lease rights under                 Leigh argues that the chancery court relit-
bankruptcy law, but whether he had any lease          igated the issue already decided by the bank-
rights under state law was a matter for               ruptcy courtSSwhether Vice had any rights
Mississippi’s courts:                                 under the leaseSSin violation of the All Writs
                                                      Act3 and the Anti-Injunction Act.4 A federal
   To the extent that Vice may have rights            court may enjoin state court proceedings
   under the lease which became available             “when necessary to protect or effectuate a fed-
   by reason of the decision of the                   eral court judgment.” J.R. Clearwater, Inc. v.
   Mississippi Supreme Court, then he is              Ashland Chem. Co., 93 F.3d 176, 178 (5th
   left to pursue those rights in the state           Cir. 1996); accord 28 U.S.C. § 2283. This
   court action pending in Lowndes                    “‘relitigation exception . . . . is founded in the
   County Chancery Court. The Order of                well-recognized concepts of res judicata and
   this Court here is not intended to and             collateral estoppel.’” J.R. Clearwater, 93 F.3d
   does not foreclose any claims which                at 179 (quoting Chick Kam Choo v. Exxon
   Vice has heretofore pursued, or may                Corp., 486 U.S. 140, 147 (1988)).
   pursue in state court, but merely
   precludes the assertion of those rights in            Nothing in the bankruptcy court’s decision
   Bankruptcy Court.                                  precluded further state court litigation. To the
                                                      contrary, the bankruptcy court explicitly di-
Applying the state’s law as interpreted by the        rected Leigh and Vice to state court to resolve
Mississippi Supreme Court, the chancery court         the rest of their lease claims. It extinguished
granted Vice’s motion to renew the lease.             Vice’s rights only under bankruptcy law, not

    Leigh filed the instant action in federal
                                                         3
court, arguing that the chancery court’s                   “[F]ederal courts may issue all writs necessary
decision contradicts the bankruptcy court’s           or appropriate in aid of their respective jur-
ruling that Vice had given up his right to            isdictions and agreeable to the usages and
                                                      principles of law.” 28 U.S.C. § 1651.
assume the lease. Leigh moved for summary
judgment; Vice moved to dismiss the                      4
                                                           “A court of the United States may not grant an
complaint.                                            injunction to stay proceedings in a State court
                                                      except as expressly authorized by Act of Congress,
   The court granted Vice’s motion, which it          or where necessary in aid of its jurisdiction, or to
treated as a summary judgment motion. It              protect or effectuate its judgments.” 28 U.S.C.
                                                      § 2283.

                                                  3
state law. Because nothing in the chancery
court’s order contradicts the bankruptcy order,
no relief is available under the All Writs Act
or the Anti-Injunction Act.5

   AFFIRMED.




   5
     We need not decide whether the bankruptcy
and district courts correctly interpreted 11 U.S.C.
§ 365(d)(4), and we intimate no view on the merits
of their holdings.

                                                      4
