Jerry Stanley v. Kevin Chappell

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.