Opinions of the United
1997 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


6-5-1997

Christy v. Horn
Precedential or Non-Precedential:

Docket 96-9004




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Recommended Citation
"Christy v. Horn" (1997). 1997 Decisions. Paper 120.
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Filed June 5, 1997

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 96-9004

LAWRENCE DUANE CHRISTY,

Appellee

v.

MARTIN F. HORN, COMMISSIONER, PENNSYLVANIA
DEPARTMENT OF CORRECTIONS; JAMES S. PRICE,
SUPERINTENDENT, STATE CORRECTIONAL INSTITUTION
AT GREEN; JOSEPH MAZURKIEWICZ,
SUPERINTENDENT, STATE CORRECTIONAL INSTITUTION
AT ROCKVIEW,

Appellants

ON APPEAL FROM THE
UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
(D.C. Civil No. 96-37J)

Argued March 21, 1997

Before: BECKER, NYGAARD and ROTH, Circuit Judges.

(Opinion Filed June 5, 1997)

Christian A. Fisanik, (Argued)
Chief Deputy, Appellate Div.
Office of the Cambria County
District Attorney
Ebensburg, Pa. 15931

Counsel for the Appellants
John Unkovic, Esq. (Argued)
Reed Smith Shaw & McClay
435 Sixth Avenue
Pittsburgh, Pa. 15219

W. Thomas McGough Jr., Esq.
Reed Smith Shaw & McClay
435 Sixth Avenue
Pittsburgh, Pa. 15219

Counsel for the Appellee

David Wycoff, Esq.
Defender Association of
Philadelphia - Federal Court
Division
437 Chestnut Street, Suite 510
Philadelphia, Pa. 19106

Counsel for Amicus Curiae,
Defender Association of
Philadelphia - Federal Court Div.

Robert Brett Dunham, Esq.
Center for Legal Education,
Advocacy & Defense Assistance
437 Chestnut Street, Suite 501
Philadelphia, Pa. 19106

Billy H. Nolas, Esq.
Center for Legal Education
Advocacy & Defense Assistance
437 Chestnut Street, Suite 501
Philadelphia, Pa. 19106

Counsel for Amicus Curiae,
Center for Legal Education,
Advocacy & Defense Assistance

                   2
OPINION OF THE COURT

NYGAARD, Circuit Judge.

The district court granted the Appellee, Lawrence Duane
Christy, a stay of execution and held his federal habeas
petition in abeyance pending exhaustion of a particular
issue in state court. Arguing that the district court did not
have the authority to hold the Appellee's habeas petition in
abeyance, the Commonwealth of Pennsylvania has
appealed.

I.

On February 15, 1996, the Governor of Pennsylvania
signed a warrant scheduling the Appellee's execution for
March 12, 1996. Christy asked the district court for
permission to proceed in forma pauperis, for counsel to be
appointed to assist him in preparing a habeas petition and
for a stay of his scheduled execution. On February 21,
1996, the district court appointed new counsel and gave
them ninety days to file a habeas petition on Christy's
behalf. The district court also stayed Christy's execution
date. See 21 U.S.C. § 848(q)(4)(B); 28 U.S.C. § 2251;
McFarland v. Scott, 

(1994). Counsel filed
Christy's habeas petition on April 17, 1996.

The day before Christy's petition was filed, the United
States Supreme Court announced its decision in Cooper v.
Oklahoma, 

(1996). In Cooper, the Supreme
Court held that a state violates a defendant's right to due
process if it requires the defendant to bear the burden of
establishing by clear and convincing evidence his
incompetency to stand trial. 

doubt to the
diligence of counsel, Christy's habeas petition included a
claim alleging that the Commonwealth of Pennsylvania
violated his constitutional rights under Cooper.

The Commonwealth of Pennsylvania answered Christy's
petition on July 16, 1996, and asserted that Christy had
failed to exhaust his state court remedies for the purported
Cooper error. On August 9, 1996, Christy asked the district

                    3
court to hold his habeas petition in abeyance while he
returned to state court to exhaust his Cooper claim. Over
the opposition of the Commonwealth, the district court
granted the abeyance motion and also kept the stay of
execution in effect while Christy proceeded in state court.
The Commonwealth now appeals. This case presents a
number of important questions, not the least of which is
whether we have jurisdiction to review this order in the first
place.

II.

28 U.S.C. § 1291 usually limits our appellate jurisdiction
to reviewing final decisions of the district courts. Martin v.
Brown, 

, 1256 (3d Cir. 1996). A judgment is
final only when there is a "decision by the district court
that ends the litigation on the merits and leaves nothing for
the court to do but execute the judgment." Bryant v.
Stevens, 

, 311 (3d Cir. 1995); see also Isador
Paiewonsky and Assoc. v. Sharp Properties Inc., 

, 150 (3d Cir. 1993). In other words, a final order is one
which leaves the district court with "nothing to do." See
Farmer v. McDaniel, 

, 1552 (9th Cir. 1996).
The dispositive inquiry is whether the order appealed from
finally resolved the case below. See Presbytery of N.J.
Orthodox Presbyterian Church v. Florio, 

, 1461
(3d Cir. 1994).

The order appealed from here is not a final order. The
district court ordered that "adjudication of the petition for
writ of habeas corpus shall be held in abeyance pending his
exhaustion of state court remedies" and that "the stay of
execution entered by this court on February 21, 1996 be
and hereby is continued in effect until further order of this
court." Clearly, this order does not resolve the habeas case.
It is not dispositive of any issue raised in Christy's habeas
petition. The district court expressly indicates the transient
nature of the order by indicating it will only remain in effect
until "further order of this court."

The Commonwealth tacitly agrees that this is not a final
order by arguing that we have jurisdiction pursuant to the
"collateral order" doctrine first announced in Cohen v.

                    4
Beneficial Indus. Loan Co., 

, 

(1949). In Cohen, the Supreme Court held that a "small
class" of collateral orders are final and appealable under 28
U.S.C. § 1291 even though they do not terminate the
underlying 

, 69 S. Ct. at 1225-26.
The case law on the collateral order doctrine is extensive
and its requirements are clear. We can review a collateral
order that (1) finally resolves a disputed question; (2) raises
an important issue distinct from the merits of the case; and
(3) is effectively unreviewable on appeal from afinal
judgment. Praxis Properties v. Colonial Sav. Bank SLA, 

, 54 (3d Cir. 1991); see also In re Ford Motor
Company, 

(3d Cir. April 9, 1997). Failure
to meet any of these requirements precludes a finding of
appellate jurisdiction. United States v. Bertoli, 

, 1012 (3d Cir. 1993).

The Supreme Court has repeatedly referred to the
collateral order doctrine as a "narrow exception" to the final
judgment rule. See, e.g., Richardson-Merrell Inc. v. Koller,

, 430, 

, 2760-61 (1985). We
have followed this admonition and construed the doctrine
narrowly "lest the exception swallow up the salutary
general rule that only final orders be appealed." Yakowicz
v. Pennsylvania, 

n.10 (3d Cir. 1982); see also
Transtech Indus., Inc. v. A&Z Septic Clean, 

(3d
Cir. 1993) ("We have followed the Supreme Court's
admonition and have consistently construed the Cohen
exception narrowly rather than expansively.").

Moreover, strict construction of the collateral order
doctrine is designed to further the longstanding
congressional policy against piecemeal appeals which
underlies the final judgment rule. See Lusardi v. Xerox
Corp., 

, 177 (3d Cir. 1984).1 To guard against
the temptation to expand the doctrine's reach, the Supreme
_________________________________________________________________

1. In Lusardi, we stated that the final judgment rule serves a number of
purposes including the efficient administration of scarce judicial
resources, maintenance of the appropriate relationship between the trial
and appellate courts, and the protection of the judicial process and its
participants from the delay which can prove advantageous to a well-
financed 

(citations omitted).

                    5
Court has instructed that the question of whether or not an
order is immediately appealable should be decided for the
entire category to which the order in question belongs.
Digital Equip. Corp. v. Desktop Direct Inc., 

,
855, 

, 1994 (1994). Therefore, we now
decide the question of whether an order which holds a
habeas appeal in abeyance and stays an execution is
immediately appealable.

A. Conclusiveness

To pass the first prong of the collateral order doctrine
test, the order appealed from must "finally resolve a
disputed question." Praxis 

. This
inquiry has been labeled the "conclusiveness prong." 

whether an order "conclusively determines the
disputed questions," the Supreme Court has contrasted two
types of orders: those which are "inherently tentative" and
those which are "technically amendable, but made with the
expectation that they will be the final word on the subject
addressed." See Gulfstream Aerospace v. Mayacamas Corp.,

, 277, 

, 1137 (1987).

Although we are aware of no case that bears directly on
the issue whether an order holding a habeas petition in
abeyance is conclusive for purposes of the collateral order
doctrine, we draw instruction from two Supreme Court
cases addressing the question of whether an order granting
a Colorado River stay2 is conclusive. In Moses H. Cone
Mem'l. Hosp. v. Mercury Construction Corp., 

, 

(1983), the Supreme Court held that a district
court order granting a Colorado River stay was expected to
be the final word on the subject and thus satisfied the
"conclusiveness" prong of Cohen. The Court reasoned that
an order granting such a stay necessarily contemplated
that the federal court will have nothing further to do in
resolution of any substantive part of the case because a
_________________________________________________________________

2. In Colorado River Water Conservation Dist. v. United States, 

, 

(1976), the Supreme Court held that in "exceptional
circumstances," a federal district court may stay or dismiss an action
solely because of the pendency of similar litigation in state 

, 96 S. Ct. at 1246.

                    6
district court can invoke Colorado River only if it first
determines that the parallel state proceeding will be an
adequate vehicle for the complete and prompt resolution of
the issues between the 

, 103 S. Ct.
at 943. Thus, the Supreme Court concluded that such an
order meant that the district court had no reason to
reconsider its decision.

In contrast to the Cone decision, the Supreme Court has
held that an order denying a Colorado River stay is
"inherently tentative." In Gulfstream Aerospace, the Court
explained that a district court usually will revisit and
reassess an order denying a Colorado River stay in light of
subsequent events that occur during the course of the

, 108 S. Ct. at 1137-38 (citations
omitted). If an order is not entered "with the expectation
that it will be the final word on the subject addressed," it
is not immediately appealable. 

that the order
appealed from here is more akin to type of order appealed
from in the Cone case. The reasoning of Cone and
Gulfstream Aerospace is helpful here, at least by analogy.
The determination in those cases of conclusiveness of the
stay order effectively turned on whether a "revision [of the
order] might reasonably be expected in the ordinary course
of the litigation." 

n. 14.

At all events, the issue before us on appeal is a discrete
legal question -- whether the district court may properly
hold a habeas appeal in abeyance while a petitioner
exhausts certain claims in state court. The order appealed
from herein resolves that question in the affirmative.
Christy argues that the district court's order holding his
habeas petition in abeyance and staying his execution was
"inherently tentative." Christy reasons that the district
court's order was not made with the expectation that it will
be the final word on the subject addressed. Christy
misconstrues the first prong of Cohen. Although the district
court's order may not have been the final word on the
merits of the habeas petition, it did conclusively determine
the discreet legal question that is the subject of this appeal.
See Praxis 

. Having determined
that it may exercise such authority over an unexhausted

                    7
habeas petition, we cannot perceive of any circumstances
in which the district court would revisit the question.
Because the district court undoubtedly expected that its
order would resolve the question of whether it may hold an
unexhausted habeas petition in abeyance, we conclude that
the "conclusiveness prong" of the collateral order is
satisfied.

B. Importance/Separateness

The Commonwealth maintains that the district court's
order holding Christy's habeas petition in abeyance
"resolves an important issue completely separate from the
merits of the action." Christy submits that the order
appealed from merely deferred resolution of the petition and
did not resolve any important issue. The Supreme Court
has instructed that the "importance of the right asserted
has always been a significant part of [the] collateral order
doctrine." Lauro Lines S.R.L. v. Chasser, 

, 504,

, 1980 (1989). Therefore, we must assure
ourselves that the issue presented herein is important
enough to merit immediate appeal. See Praxis 

.

We have held that the "importance/separateness prong"
of Cohen contemplates orders that are important in a
jurisprudential sense. See Praxis 

(citing Nemours Found. v. Manganaro Corp., 

,
100 (3d Cir. 1989)). The question whether a district court
may hold an unexhausted habeas petition in abeyance
pending resolution in state court of certain claims remains
unsettled. While some of our district courts have found
such authority, See Beasley v. Fulcomer, No. 90-4711, 

(E.D. Pa. Apr. 22, 1991); Edwards v.
Horn, No. 1:CV-95-1876 (M.D. Pa. Feb. 21, 1996), Szuchon
v. Lehman, No. 94-195E (W.D. Pa. Feb. 6, 1995), another
circuit has determined that district courts lack the
authority to hold such petitions in abeyance, Victor v.
Hopkins, 

(8th Cir. 1996). Given the important
nature of capital habeas cases in general, we conclude that
this appeal presents an issue that is "important enough in
a jurisprudential sense to require an immediate

                   8
interlocutory appeal." Nemours 

.

In addition to determining whether this appeal presents
an "important" issue, we also must decide whether the
order appealed from is separate from the merits of the
underlying action. This "separateness" requirement derives
from the policy against piecemeal appeals. 

n.13 (citations omitted). We
do not believe that the order appealed from here involves
"considerations that are enmeshed in the factual and legal
issues comprising the [petitioner's] cause of action."
Coopers and Lybrand v. Livesay, 

, 469, 98 S.
Ct. 2454, 2458 (1978). The order appealed from and the
precise legal issue it presents will not thrust us into the
merits of the underlying habeas petition. Here, we are
asked only to determine the propriety of a district court
order which keeps an unexhausted habeas petition in
abeyance while the petitioner returns to state court to
exhaust certain claims. Such a determination is sufficiently
ancillary to the underlying action that we need not become
"enmeshed" in the merits of the dispute. We therefore
conclude that the order appealed from satisfies the
"separateness prong" of the collateral order doctrine.

C. Unreviewability

Last, to be appealable under the collateral order doctrine,
an order must be such that review postponed will
ultimately be review denied. See Praxis Properties, 

at 58; Zosky v. Boyer, 

, 561 (3d Cir. 1988).
An order is effectively unreviewable if the order involves "an
asserted right the legal and practical value of which would
be destroyed if it were not vindicated before trial." Lauro

, 109 S. Ct. at 1978 (citations
omitted). The Commonwealth argues that by permitting the
petitioner to return to state court and exhaust particular
issues, the order effectively destroys any appellate review of
its appropriateness. We agree. If we do not review the
matter at this juncture, the Petitioner will have returned to
state court and exhausted his claims, thereby presenting
the district court with an exhausted habeas petition and
rendering the appropriateness of the district court's stay

                     9
and abeyance ruling unreviewable. We therefore find that
the district court's order holding the habeas petition in
abeyance is "effectively unreviewable" on appeal from a final
judgment in this case.

In summary, we find that the district court's order
holding Christy's habeas petition in abeyance pending
exhaustion of state court remedies satisfies all the
requirements of the collateral order doctrine and, as such,
is an appealable order within the meaning of 28 U.S.C.
§ 1291. Having determined that we have the requisite
jurisdiction, we now turn to the merits of this appeal. Our
review is plenary. Toulson v. Beyer, 

, 986 (3d
Cir. 1993).

III.

28 U.S.C. § 2254 instructs a federal court to refuse a
state prisoner's habeas petition unless "it appears that the
applicant has exhausted the remedies available in the
courts of the State." 28 U.S.C. § 2254(b) (1988). This
"exhaustion requirement" is primarily grounded in the
"respect which federal courts have for the state judicial
processes and upon the administrative necessities of the
federal judiciary." Wade v. Mayo, 

, 679, 68 S.
Ct. 1270, 1274 (1948). In Rose v. Lundy, 

, 

(1982), the Supreme Court applied these
principles to a case which involved a "mixed" habeas
petition -- a petition which contained both exhausted and
unexhausted claims. The Court held that "because the rule
requiring exhaustion of all claims furthers the purposes
underlying the habeas statute . . . a district court must
dismiss such `mixed petitions.' " 

102 S. Ct. at
1199. The Court clearly warned habeas litigants: "[B]efore
bringing any claims to federal court, be sure to first take
each issue to the state court." 

102 S. Ct. at
1204. However, this "total exhaustion" rule is not an
inflexible barrier to federal court jurisdiction, but a rule of
comity. Strickland v. Washington, 

, 684, 104 S.
Ct. 2052, 2063 (1984). The Supreme Court has indicated
that, although there is a strong presumption in favor of
exhaustion, there are also "limited circumstances under
which the failure [to exhaust] will not act as a complete bar

                    10
to federal habeas review." Pillette v. Foltz, 

,
496 (6th Cir. 1987) (citing Granberry v. Greer, 

, 

(1987)). We recognize that in rare
cases exceptional circumstances of peculiar urgency may
exist which permit a federal court to entertain an
unexhausted claim. See Victor v. Hopkins, 

, 279
(8th Cir. 1996) (quoting Ex parte Royall, 

, 252,

, 740-41 (1886)); Ex parte Hawk, 

,
117, 

, 451 (1944). The Supreme Court has
instructed that federal courts are to "exercise discretion in
each [habeas] case to decide whether the administration of
justice would be better served by insisting on exhaustion or
by reaching the merits of the petition forthwith." 

, 107 S. Ct. at 1673. Such circumstances
exist when, for example, state remedies are inadequate or
fail to afford a full and fair adjudication of the federal
contentions raised, or where exhaustion in state court
would be "futile." Id.; see also Slayton v. Smith, 

, 

(1971) (absent special circumstances,
federal courts should dismiss habeas petitions which
contain unexhausted claims).

Christy and Amici argue that such "unusual
circumstances" exist where the dismissal of a mixed
petition creates a risk that the petitioner will be executed
before his or her federal claims can be litigated in federal
court. They submit that should his petition be dismissed,
Christy will be without the protection of a federal stay and
available to the Commonwealth for execution. We partly
agree and would never knowingly permit Christy's
execution while his federal constitutional claims are still
being litigated. We caution, however, that the mere risk
that Pennsylvania courts will not stay the execution cannot
amount to an "unusual circumstance." The appropriate
inquiry must be whether an execution is "imminent." In
this case, Christy's original execution was scheduled for
March 12, 1996. On February 21, 1996, the district court
granted Christy a stay and gave newly appointed counsel
ninety days to prepare and file a habeas petition. When
Christy filed his habeas petition on April 18, 1996, his
execution date had lapsed. His execution was no longer
imminent because the original execution warrant had
expired and no new warrant was ever issued. Pennsylvania

                    11
law requires the reissuance of the warrant upon vacation of
the federal stay and also permits the Pennsylvania courts to
grant another stay for post-conviction purposes upon a
finding that "the petitioner makes a strong showing of
likelihood of success on the merits." 42 Pa.C.S.A.
§ 9545(c)(2). Moreover, in this case, the Office of the
General Counsel to the Governor of Pennsylvania has
assured us via letter submitted March 19, 1997, that
Christy will not be executed during the pendency of this
new round of post-conviction proceedings. Syndi L. Guido,
Deputy General Counsel to the Governor, indicated that
"warrants are not signed while litigation is pending or
during any unexpired appeal period."

To excuse exhaustion and grant a stay and abeyance
motion, the proper inquiry must be whether an execution is
"imminent." In deciding whether to grant a "stay and
abeyance" motion or whether to review a mixed petition,
district courts must focus not on the risk but on the
actuality that state courts will refuse to stay an execution
while federal claims are pending. If a state court has
refused to grant a stay pending its adjudication of a
prisoner's federal constitutional claims, such action by the
district court would be appropriate.

We do not think Christy has demonstrated the
"imminent" nature of his execution. Neither side has
presented us with any evidence that the Commonwealth
would countenance the execution of a prisoner in Christy's
circumstances. Therefore, Christy has not demonstrated
"one of those rare cases where exceptional circumstances of
peculiar urgency are shown to exist," permitting us to
disregard the exhaustion requirement. See United States ex
rel. Kennedy v. Tyler, 

, 17 (1925).3
_________________________________________________________________

3. We point out that the Commonwealth may waive exhaustion of the
Cooper claim, thereby permitting the district court to review the petition
as filed. The district court is not required, however, to accept a waiver
and may require state court exhaustion. See Thompson v. Wainwright,

, 1500-01 (11th Cir. 1983); Graham v. Johnson, 

, 970 (5th Cir. 1990).

                    12
IV.

Because execution is no longer imminent in this case, we
will remand to the district court with instructions to
dismiss. The district court's dismissal raises a question of
whether any subsequent habeas filings on Christy's behalf
will be considered "successive" and whether, pursuant to
the dictates of the Antiterrorism and Effective Death
Penalty Act of 1996, Pub.L. No. 104-132, Title I, § 106, 110
Stat. 1214, 1220-21 (1996) [hereinafter "AEDPA"], Christy
would be required to seek authorization from the court to
file a petition for habeas corpus. We hold that when a prior
petition has been dismissed without prejudice for failure to
exhaust state remedies, no such authorization is necessary
and the petitioner may file his petition in the district court
as if it were the first such filing.

Section 6 of the AEDPA amends 28 U.S.C. § 2244 to
forbid any "second or successive" petition for collateral
relief without the consent of the court of appeals. 28 U.S.C.
§ 2244(b)(3)(E). The AEDPA instructs courts of appeals to
grant this authorization only if the applicant makes a prima
facie showing that the application satisfies the
requirements for second or successive applications. 28
U.S.C. § 2244(b)(3)(C). While the AEDPA requires this
procedure for second or successive application, it does not
define what is meant by "second" or "successive."

Before the AEDPA amendments took effect, a petition
filed after a previously submitted petition was dismissed
without prejudice was not considered an abuse of the writ.
See e.g. Woods v. Whitley, 

, 322 n.1 (5th Cir.
1991); Hamilton v. Vasquez, 

, 1473 (9th Cir.
1989); Jones v. Estelle, 

, 168 (5th Cir. 1983);
Camarano v. Irvin, 

, 46 (2d Cir. 1996). The abuse
of the writ doctrine is deeply rooted in the need for finality
and the concerns of comity. See McCleskey v. Zant, 

, 491-92, 

, 1469 (1991). The
problems that the abuse of the writ doctrine seeks to avoid
are not implicated when a petition is filed after a prior
petition is dismissed for lack of exhaustion. See Sanders v.
United States, 

, 17, 

, 1078 (1963)
(holding that the doctrine of writ abuse is not implicated if
"the same ground was earlier presented but not adjudicated

                    13
on the merits"). Moreover, as one court has observed,
"dismissal without prejudice of an entire petition --
including exhausted claims -- for failure to exhaust certain
claims promotes the policies underlying the doctrine."

. Such a dismissal serves the
interests of finality by discouraging piecemeal litigation. 

exhaustion promotes harmony
between the federal and state judicial systems by giving the
state courts the first opportunity to review state convictions
and to correct constitutional errors.

V.

We will vacate and remanded to the district court with
instructions for it to dismiss the petition.

A True Copy:
Teste:

Clerk of the United States Court of Appeals
for the Third Circuit

                    14