                FOR PUBLICATION

  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT


JERRY F. STANLEY,                        No. 13-15987
              Petitioner-Appellant,
                                            D.C. No.
                 v.                      2:95-cv-01500-
                                           JAM-CKD
KEVIN CHAPPELL, Warden,
            Respondent-Appellee.            OPINION


      Appeal from the United States District Court
          for the Eastern District of California
       John A. Mendez, District Judge, Presiding

                Argued and Submitted
       May 29, 2014—San Francisco, California

                 Filed August 13, 2014

   Before: William A. Fletcher, Richard C. Tallman,
           and Jay S. Bybee, Circuit Judges.

             Opinion by Judge W. Fletcher
2                     STANLEY V. CHAPPELL

                           SUMMARY*


               Habeas Corpus / Death Penalty

    The panel dismissed for lack of jurisdiction a capital
prisoner’s appeal from the district court’s order staying and
holding in abeyance his federal habeas corpus proceeding
pending exhaustion in state court of his challenge to state
court holdings that a retrospective competency determination
was feasible and that the petitioner was competent at the time
of his penalty-phase trial.

    The panel held that it lacked appellate jurisdiction
because the district court’s stay-and-abeyance order was not
an appealable collateral order and was not appealable under
Moses H. Cone Mem’l Hosp. v. Mercury Constr. Corp. as an
order that put the petitioner effectively out of court. The
panel declined to construe the appeal as a petition for a writ
of mandamus.



                            COUNSEL

Joseph Schlesinger (argued) and Tivon Shardl, Federal Public
Defender’s Office, Sacramento, California; Mark E. Olive,
Law Offices of Mark E. Olive, P.A., Tallahassee, Florida, for
Petitioner-Appellant.




  *
    This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
                   STANLEY V. CHAPPELL                      3

Jesse N. Witt (argued), Deputy Attorney General, and Ward
A. Campbell, Supervising Deputy Attorney General, Office
of the California Attorney General, Sacramento, California,
for Respondent-Appellee.


                         OPINION

W. FLETCHER, Circuit Judge:

    This is the second time this capital case has come before
us. The first was an appeal from the district court’s partial
judgment under Federal Rule of Civil Procedure 54(b),
denying all of petitioner Gerald F. Stanley’s guilt-phase
claims and deferring adjudication of his penalty-phase claims
pending retrospective competency proceedings in state court.
We affirmed the district court in all respects. Stanley v.
Cullen, 633 F.3d 852 (9th Cir. 2011). Of particular
importance here, we affirmed the district court’s decision to
remand to state court. Id. at 863–64.

    On remand, California trial courts held that a
retrospective competency determination was feasible and that
Stanley was competent at the time of his penalty-phase trial.
Stanley challenged these state court holdings in his federal
habeas proceeding, which had been held in abeyance. The
district court concluded that exhaustion of state remedies was
a prerequisite to its review of Stanley’s challenge. The
district court stayed and held in abeyance Stanley’s challenge
pending exhaustion in state court. Stanley appeals from the
district court’s stay-and-abeyance order.

   We hold that we lack appellate jurisdiction.
4                  STANLEY V. CHAPPELL

                        I. Background

     Stanley was convicted in California state court in 1983 of
first-degree murder of his estranged wife. During the penalty
phase of his trial, Stanley’s counsel moved for competency
proceedings under California Penal Code § 1368. The court
suspended the trial to allow a determination of Stanley’s
competency. After a month-long competency trial, a separate
jury returned a verdict that Stanley was competent. The court
then resumed the penalty-phase trial before the original jury.
That jury returned a verdict of death.

    Stanley unsuccessfully appealed his conviction and
sentence to the California Supreme Court. Stanley then filed
pro se a petition for habeas corpus in federal district court.
The district court appointed federal public defenders to
represent Stanley and stayed and held in abeyance his federal
habeas petition while he exhausted his claims in state court.

    After the California courts denied his state habeas
petition, Stanley filed an amended federal habeas petition in
district court. The amended petition asserted twenty-eight
guilt- and penalty-phase claims. The district court denied all
of Stanley’s guilt-phase claims but held that a biased juror
during the penalty-phase competency trial rendered invalid
that jury’s verdict of competency. It did not reach the
remainder of Stanley’s penalty-phase claims. It remanded to
the California trial court, directing it “to determine whether
a retrospective competency trial [could] be held and to hold
such [a] trial if one is possible.” The district court entered a
partial judgment under Federal Rule of Civil Procedure 54(b)
denying all of Stanley’s guilt-phase claims and deferring
adjudication of his penalty-phase claims pending completion
of the proceedings on remand to state court.
                   STANLEY V. CHAPPELL                        5

   On appeal, we affirmed the district court’s remand order.
Stanley, 633 F.3d at 857, 864. Following an evidentiary
hearing, a California trial court held that a retrospective
competency determination was feasible.           A different
California trial court held that Stanley was competent at the
time of his penalty-phase trial.

    Respondent Kevin Chappell, Warden of San Quentin
State Prison, notified the district court that the state court
proceedings had concluded and requested that the district
court decide Stanley’s unadjudicated penalty-phase claims.
Stanley responded by challenging the outcome of the
competency proceedings. He requested leave to brief the
issue whether the state court proceedings had provided
“meaningful, constitutionally valid determinations of
feasibility and retrospective competency.”

    The district court directed the parties to brief the issue
whether exhaustion of state court remedies was a prerequisite
to federal review of the state court competency
determinations. The court concluded that exhaustion of state
remedies was required under the Antiterrorism and Effective
Death Penalty Act (“AEDPA”). It ordered Stanley’s
challenge to the state court competency determinations held
in abeyance pending exhaustion in state court. Stanley
appeals from this stay-and-abeyance order.

                        II. Discussion

    Before we can address the merits of Stanley’s appeal, we
must determine whether we have appellate jurisdiction under
28 U.S.C. § 1291. Stanley contends that there are two bases
for appellate jurisdiction. First, he contends that the district
court’s stay-and-abeyance order is an appealable collateral
6                   STANLEY V. CHAPPELL

order under Cohen v. Beneficial Industrial Loan Corp.,
337 U.S. 541 (1949). Second, he contends that the order is
appealable under Moses H. Cone Memorial Hospital v.
Mercury Construction Corp., 460 U.S. 1, 9 (1983), because
it puts Stanley “effectively out of court.” Alternatively,
Stanley contends that we should construe his appeal as a
petition for a writ of mandamus under 28 U.S.C. § 1651. We
address each contention in turn.

                     A. Collateral Order

    Under the collateral order doctrine articulated in Cohen,
we have appellate jurisdiction over a “narrow class of
decisions that do not terminate the litigation, but must, in the
interest of achieving a healthy legal system, nonetheless be
treated as final.” Digital Equip. Corp. v. Desktop Direct,
Inc., 511 U.S. 863, 867 (1994) (citation and internal quotation
marks omitted). To come within this “narrow class of
decisions,” an order must, “[1] conclusively determine the
disputed question, [2] resolve an important issue completely
separate from the merits of the action, and [3] be effectively
unreviewable on appeal from a final judgment.” In re Copley
Press, Inc., 518 F.3d 1022, 1025 (9th Cir. 2008) (alterations
in original) (quoting Coopers & Lybrand v. Livesay, 437 U.S.
463, 468 (1978) (internal quotation marks omitted)).

    In Mohawk Industries, Inc. v. Carpenter, 558 U.S. 100
(2009), the Supreme Court emphasized the limited scope of
the collateral order doctrine. The Court wrote that the
doctrine “must never be allowed to swallow the general rule
that a party is entitled to a single appeal, to be deferred until
final judgment has been entered.” Id. at 106 (internal
quotation marks omitted). The Court held that a district court
order denying an asserted claim of attorney-client privilege
                   STANLEY V. CHAPPELL                       7

and requiring that the documents in question be revealed does
not qualify as an appealable collateral order under Cohen. Id.
at 109. The Court explained that “postjudgment appeals
generally suffice to protect the rights of litigants and ensure
the vitality of the attorney-client privilege.” Id.

    Although not on all fours with the case now before us, our
decision in Thompson v. Frank, 599 F.3d 1088 (9th Cir.
2010) (per curiam), addressed a closely related question. The
state defendants in Thompson appealed a district court order
staying and holding in abeyance Thompson’s federal habeas
petition while Thompson sought to exhaust his unexhausted
claims in state court. Id. at 1089. The state defendants did
not contend that Thompson did not need to exhaust. Rather,
they contended that the district court erred in entering its
stay-and-abeyance order. Noting the “exacting standard” of
the collateral order doctrine, we held that the third Cohen
requirement was not satisfied. We wrote:

       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. Similarly, any error that the
       district court made in determining whether
       certain claims had been exhausted can be
       remedied fully on appeal from the final
       judgment.

Id. at 1090 (citations omitted).

    Stanley points out that Thompson involved an appeal from
the district court’s stay-and-abeyance order where there was
no dispute about whether the claims needed to be exhausted.
He argues that Thompson does not apply because the question
8                  STANLEY V. CHAPPELL

here is whether his claims need to be exhausted in the first
place. We acknowledge the distinction between Thompson
and this case, but we conclude that Thompson’s underlying
logic is nonetheless apposite.

    If, on appeal from final judgment in the district court, we
were eventually to conclude that exhaustion was not required,
we would be unable to return to Stanley the time and
resources he spent in exhausting his claims in state court. But
the same was true in Thompson. If we had heard the appeal
from the district court’s stay-and-abeyance order and had
reversed the district court, Thompson would almost certainly
have been prevented from pursuing some (perhaps all) of his
claims in federal court. Without a stay-and-abeyance order,
Thompson would have been put to the choice of either
abandoning his unexhausted claims so that he could proceed
with an unmixed petition, see Rose v. Lundy, 455 U.S. 509,
520–21 (1982), or allowing dismissal of his mixed petition
and filing a new petition after exhausting his unexhausted
claims. If Thompson had chosen the second course, his new
petition would almost certainly have been barred by
AEDPA’s one-year statute of limitations. The state
defendants’ inability to appeal the stay-and-abeyance order
thus meant that, while the state might in the end prevail on
the merits of Thompson’s claims, it would have been required
to spend considerable time and money that could not be
recovered. We nonetheless declined to hear the state
defendants’ appeal. Thompson, 599 F.3d at 1090; see Digital
Equip., 511 U.S. at 872 (“[T]he mere identification of some
interest that would be ‘irretrievably lost’ has never sufficed
to meet the third Cohen requirement.”).

   The important point, for purposes of the collateral order
doctrine, is that Stanley will eventually be able to present his
                   STANLEY V. CHAPPELL                       9

arguments to us, including his argument that exhaustion is not
required. Although the district court’s “ruling may burden
[Stanley] in ways that are only imperfectly reparable by
appellate reversal of a final district court judgment,”
Mohawk, 558 U.S. at 107 (internal quotation marks omitted),
we cannot say that its order is effectively unreviewable on
appeal from a final judgment.

                     B. Moses H. Cone

    In Moses H. Cone, a hospital brought suit in state court
against a construction contractor, seeking a declaratory
judgment that a contract with the contractor did not confer a
right to arbitration. The contractor then brought suit in
federal district court seeking an order compelling arbitration.
460 U.S. at 7. The district court stayed the action under
Colorado River Water Conservation District v. United States,
424 U.S. 800 (1976), pending resolution of the state court
proceeding. Moses H. Cone, 460 U.S. at 13. The Supreme
Court had previously held in Idlewild Bon Voyage Liquor
Corp. v. Epstein, 370 U.S. 713 (1962) (per curiam), that a
stay pursuant to Pullman abstention, see R.R. Comm’n v.
Pullman Co., 312 U.S. 496 (1941), was an appealable order
because it put the plaintiff “effectively out of court.”
Idlewild, 370 U.S. at 714–15 & n.2 (internal quotation mark
omitted). The Court held in Moses H. Cone that the district
court’s stay order put the federal plaintiff effectively out of
court “even more surely than in Idlewild,” and was therefore
an appealable final order under § 1291. Moses H. Cone,
460 U.S. at 10. However, the Court was careful to note that
a stay order is not ordinarily an appealable order for purposes
of § 1291. It explained that a plaintiff is effectively out of
court within the meaning of Idlewild only in “cases where
(under Colorado River, abstention, or a closely similar
10                  STANLEY V. CHAPPELL

doctrine) the object of the stay is to require all or an essential
part of the federal suit to be litigated in a state forum.” Id. at
10 n.11.

    We have applied the Moses H. Cone doctrine where there
is a substantial possibility that proceedings in another court
could moot a federal suit, see Lockyer v. Mirant Corp.,
398 F.3d 1098, 1102 (9th Cir. 2005), and to stay orders that
impose a lengthy or indefinite delay, even absent the risk that
another proceeding will have res judicata effect on the federal
case, see Blue Cross & Blue Shield of Ala. v. Unity Outpatient
Surgery Ctr., Inc., 490 F.3d 718, 723–24 (9th Cir. 2007).
Most recently, in Davis v. Walker, 745 F.3d 1303, 1307–08
(9th Cir. 2014), we held that a district court’s stay of a
prisoner’s 42 U.S.C. § 1983 action until the prisoner was
“restored to competency” was an appealable final decision
under Moses H. Cone. We noted that there was no indication
from the record that the prisoner would ever regain the
competency needed to lift the stay order, and thus the stay
was “both lengthy and indefinite, if not infinite.” Id. at 1309.

    Stanley is correct that exhausting state remedies will
likely involve substantial delay. But unlike the stays at issue
in Blue Cross and Davis, the district court’s stay-and-
abeyance order does not “amount[] to a refusal to proceed to
a disposition on the merits,” id. at 1308–09 (quoting Blue
Cross, 490 F.3d at 724). And unlike the stay at issue in
Lockyer, stay-and-abeyance orders are, as a general matter,
“situations in which the district court clearly foresees and
intends that proceedings will resume after the stay has
expired.” Lockyer, 398 F.3d at 1103.

    Where the district court stays and holds in abeyance a
petitioner’s federal habeas claims to allow the petitioner to
                    STANLEY V. CHAPPELL                        11

exhaust his claims in state court, we cannot say that “the sole
purpose and effect of the stay is precisely to surrender
jurisdiction of a federal suit to a state court,” Moses H. Cone,
460 U.S. at 10 n.11. Rather, such a stay “merely has ‘the
practical effect of allowing a state court to be the first to rule
on a common issue.’” Swanson v. DeSantis, 606 F.3d 829,
834 (6th Cir. 2010) (quoting Moses H. Cone, 460 U.S. at 10
n.11). Because the district court’s order does not put Stanley
“effectively out of court,” we are without appellate
jurisdiction to determine the propriety of its order. See
Cofab, Inc. v. Phila. Joint Bd., Amalgamated Clothing &
Textile Workers’ Union, 141 F.3d 105, 109 (3d Cir. 1998)
(holding that Moses H. Cone did not apply where the district
court had no intention to “‘deep six’ the suit”).

                        C. Mandamus

    “We have authority to issue a writ of mandamus under the
‘All Writs Act,’ 28 U.S.C. § 1651.” Cohen v. U.S. Dist.
Court, 586 F.3d 703, 708 (9th Cir. 2009). We may treat an
appeal from an otherwise nonappealable order as a petition
for a writ of mandamus. Miller v. Gammie, 335 F.3d 889,
895 (9th Cir. 2003) (en banc). However, “[t]he writ of
mandamus is an ‘extraordinary’ remedy limited to
‘extraordinary’ causes.” Burlington N. & Santa Fe Ry. v.
U.S. Dist. Court, 408 F.3d 1142, 1146 (9th Cir. 2005)
(quoting Cheney v. U.S. Dist. Court, 542 U.S. 367, 380
(2004)). “[W]e will only issue the writ for usurpation of
judicial power or a clear abuse of discretion.” Cordoza v.
Pac. States Steel Corp., 320 F.3d 989, 998 (9th Cir. 2003).
“Whether we construe [an] appeal as [a petition for] a writ of
mandamus depends on whether mandamus is itself justified.”
Hernandez v. Tanninen, 604 F.3d 1095, 1099 (9th Cir. 2010).
12                  STANLEY V. CHAPPELL

    In Bauman v. United States District Court, 557 F.2d 650
(9th Cir. 1977), we established five guidelines to guide the
inquiry whether mandamus is appropriate in a given case:
whether (1) the petitioner has no other adequate means, such
as a direct appeal, to obtain the desired relief; (2) the
petitioner will be damaged or prejudiced in any way not
correctable on appeal; (3) the district court’s order is clearly
erroneous as a matter of law; (4) the district court’s order is
an oft-repeated error or manifests a persistent disregard of the
federal rules; and (5) the district court’s order raises new and
important problems or issues of first impression. Id. at
654–55.

    Not all five of these factors must be satisfied in order to
grant mandamus. “[R]arely if ever will a case arise where all
the guidelines point in the same direction or even where each
guideline is relevant or applicable.” Id. at 655. “However,
the absence of the third factor, clear error, is dispositive.”
Burlington, 408 F.3d at 1146. This factor is dispositive here.

    We may hold that the district court’s ruling is “clearly
erroneous as a matter of law as that term is used in mandamus
analysis . . . only when, after a full review of the authorities,
we are firmly convinced that the district court’s interpretation
was incorrect.” In re Cement Antitrust Litig., 688 F.2d 1297,
1306 (9th Cir. 1982) (internal quotation marks omitted).
There is a dearth of case law on the question whether
exhaustion is required in the circumstances presented in this
case, and the question appears to us to be close. “Whether or
not the district court’s interpretation is ultimately upheld on
appeal after final judgment, we cannot now find it to be
clearly erroneous as a matter of law . . . .” United States v.
Mehrmanesh, 652 F.2d 766, 771 (9th Cir. 1981) (internal
                 STANLEY V. CHAPPELL                   13

quotation marks omitted). We therefore decline to construe
Stanley’s appeal as a petition for a writ of mandamus.

   Appeal DISMISSED for Lack of Jurisdiction.
