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Motion to Dismiss Appeal - Middleton execution - 8th Cir

Motion to Dismiss Appeal - Middleton execution - 8th Cir

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Published by Chris Geidner

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Published by: Chris Geidner on Jul 16, 2014
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 No. 14-2677 UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT  _________________________________________________________________ JOHN MIDDLETON, Petitioner-Appellee, v. DON ROPER Respondent-Appellant.  __________________________________________________________________ Appeal from the United States District Court for the Eastern District of Missouri The Honorable Catherine D. Perry  _________________________________________________________________ PETITIONER-APPELLEE’S MOTION TO DISMISS FOR LACK OF JURISDICTION  __________________________________________________________________
Appellate Case: 14-2677 Page: 1 Date Filed: 07/16/2014 Entry ID: 4175632
 Petitioner-Appellee John Middleton, by and through his attorneys of record and pursuant to Rule 27 of the Federal Rules of Appellate Procedure, hereby moves that theCourt dismiss this appeal for lack of jurisdiction. The Respondent -Appellant appeals thedistrict court’s order staying the capital habeas proceedings and holding them in abeyance pending Appellee John Middleton’s presenting his unexhausted
 claim to theMissouri state courts. The Court does not have jurisdiction because the order neither is afinal order nor satisfies the collateral order doctrine test.
A federal appellate court’s jurisdiction is predominantly limited to appeals from “finaldecisions of the district courts of the United States.” 28 U.S.C. § 1291.
 A decision isfinal if it “ends the litigation on the merits and leaves nothing for the court to do butexecute the judgment.”
 Bryant v. Sylvester,
57 F.3d 308, 311 (3d Cir.1995). The order atissue in the instant case is not final. It merely grants Petitioner leave to exhaust his
claim in state court. It does not end the litigation on the merits and thereforemay not be appealed as a final decision. Petitioner acknowledges that the finality rule is not absolute, since “there are someissues that are ‘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)). For the “‘small class’
28 U.S.C. § 1292 allows appeals from certain narrowly defined classes of interlocutory orders. The order at issue here belongs to none of those classes. 
Appellate Case: 14-2677 Page: 2 Date Filed: 07/16/2014 Entry ID: 4175632
of decisions excepted from the final-judgment rule,” the Supreme Court created thecollateral order doctrine.
 Papotto v. Hartford Life & Accident Ins. Corp.
731 F.3d 265,269-70 district court’s stay-and-abey order, however, does not satisfy the criteria for thecollateral order doctrine, thus it does not fit within the small class of decisions exceptedfrom the final judgment rule. Before the United States Supreme Court decision in
 Rhines v. Weber,
544 U.S. 269(2005), this Circuit held that stay-and-abey orders allowing habeas petitioners to exhaustclaims in state court satisfied the collateral order doctrine.
Carmichael v. White,
163 F.3d1044 (8th Cir. 1998). At that time, “[t]he question whether a district court may hold anunexhausted habeas petition in abeyance pending resolution in state court of certainclaims remain[ed] unsettled [and thus] present[ed] an issue that [was] important enoughin a jurisprudential sense to require an immediate interlocutory appeal.”
Christy v. Horn
115 F.3d 201, 205 (citation omitted). This was also an animating principle in
163 F.3d at 1045 (deeming “important” the unresolved question whether a districtcourt could stay habeas proceedings). However, as this Circuit has acknowledged inoverruling
the “rationale for employing the collateral order doctrine [toallow interlocutory review of stay-and-abey orders] is no longer applicable. Rather 
v. Weber,
544 U.S. 269 (2005)] conclusively decided a reasonable delay for  petitioner’s trip to state court and back, to exhaust unexhausted claims, is justified inlimited circumstances.”
 Howard v. Norris,
616 F.3d 799, 803 (8
 Cir. 2010). A year  before the Supreme Court decided
the Third Circuit held that a district court is
Appellate Case: 14-2677 Page: 3 Date Filed: 07/16/2014 Entry ID: 4175632

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