Allan O. Moore , S R . v. Stephen Mote

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 03-3213
A LLAN O. M OORE , S R .,
Petitioner-Appellant,
v.
S TEPHEN M OTE ,
Respondent-Appellee.
____________
Appeal from the United States District Court
for the Central District of Illinois.
No. 03 C 1206—Joe Billy McDade, Chief Judge.
____________
S UBMITTED N OVEMBER 14, 2003—D ECIDED M AY 17, 2004
____________
Before B AUER , R IPPLE and E VANS , Circuit Judges.
E VANS , Circuit Judge. Allan Moore, Sr. filed a petition for
a writ of habeas corpus, see 28 U.S.C. § 2254, seeking
federal review of his conviction for possession with intent to
distribute cocaine. The district court concluded that Moore’s
petition presents claims that are pending before a state
post-conviction court. Rather than entering judgment
against Moore, the court dismissed the petition with leave
to refile the case once Moore exhausts his state court
remedies. Moore filed a notice of appeal from the dismissal,
which we construe as an application for a certificate of
appealability. See 28 U.S.C. § 2253(c). We dismiss the
action for lack of jurisdiction because the district court
order dismissing Moore’s case is not a final judgment.

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2 No. 03-3213
Generally, this court has jurisdiction only to review final
judgments, 28 U.S.C. § 1291. The district court’s order
dismissing the case without prejudice is not final because it
explicitly contemplates the court’s continuing involvement
in the case: “It must be emphasized that this dismissal is
without prejudice and Petitioner will be entitled to renew
his § 2254 petition upon completion of review of his claims
by the Illinois state court system.” R. 8, Or. of 8/6/03. See
Cunningham v. Hamilton Cy., Oh., 527 U.S. 198, 204 (1999)
(“[A] decision is not final, ordinarily, unless it ends the
litigation on the merits and leaves nothing for the court to
do but execute the judgment.”) (quotation omitted); see also
TDK Elecs. Corp. v. Draiman, 321 F.3d 677, 678 (7th Cir.
2003) (The “judge made it clear that he has washed his
hands of the case, the resolution is as final as it can be.
Nothing more ever will happen in the district court.”).
This court has held that there are “special circumstances”
under which the dismissal of a case without prejudice may
constitute a final appealable order. See Larkin v. Galloway,
266 F.3d 718, 721 (7th Cir. 2001). Special circumstances are
present when it is clear that it is impossible for the plaintiff
to amend the filing to remedy the problem that prompted
the dismissal. See Furnace v. Bd. of Tr. of S. Ill. Univ., 218
F.3d 666, 669 (7th Cir. 2000). No special circumstances
exist here because Moore can easily return to state court,
conclude his pending action, and then submit the state
court decision (either confirming or disproving the district
court’s belief that state remedies remain available to Moore)
to the district court. Cf. Strong v. David, 297 F.3d 646, 648
(7th Cir. 2002) (district court order is final because peti-
tioner had exhausted all administrative remedies and there
were no further state remedies available).
Additionally, the district court order dismissing Moore’s
petition is not reviewable under the collateral order doc-
trine, which provides an appellate court with jurisdiction
over non-final orders that (1) conclusively determine a

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No. 03-3213 3
disputed question, (2) resolve an issue completely separate
from the merits of the actions, and (3) are effectively
unreviewable on appeal from a final judgment. Wingerter v.
Chester Quarry Co., 185 F.3d 657, 662-63 (7th Cir. 1998). As
stated, the district court order is not conclusive; Moore can
return to state court, conclude the pending post-conviction
proceedings, and then submit the state court decision to the
district court.
Likewise, the district court’s exhaustion determination
will be reviewable on appeal from a final judgment. This
question has not previously arisen in the habeas corpus
context because, pre-AEDPA, there were no time limits on
filing petitions. Thus, when a petitioner failed to exhaust,
a district court could dismiss without prejudice without
harming the petitioner, and this court would review the
exhaustion determination. Under these circumstances the
exhaustion determination really was unreviewable on
appeal from a final judgment because the final judgment
would come in an entirely different legal action. With the
advent of AEDPA’s statute of limitations, a dismissal, even
without prejudice, can harm a petitioner and, thus, Newell
v. Hanks, 283 F.3d 827 (7thCir. 2002), instructs district
courts to stay actions rather than dismiss them. Accord-
ingly, instead of filing new law suits, petitioners simply
reopen their first federal collateral attack. From a peti-
tioner’s perspective, this procedural distinction probably
appears meaningless, but legally the distinction is signifi-
cant: the exhaustion determination now can in fact be
addressed on appeal from a final judgment because it is
part of the same legal action. See Davis v. Streestra, 227
F.3d 759, 762 (7th Cir. 2000) (Seventh Circuit lacked
jurisdiction over appeal from the district court’s exhaustion
determination under 42 U.S.C. § 1997e in prisoners’ civil
rights cases because the issue could be resolved on appeal
from final judgment). As a practical matter, AEDPA’s
Certificate of Appeal (CA) requirement may prevent many

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4 No. 03-3213
exhaustion determinations from receiving appellate review,
but that would be the case whether we address the issue
now or after final judgment. Cf. In re Carlson, 224 F.3d 716,
718 (7th Cir. 2000) (“[T]he order itself is effectively final
[because] the hypothetical chance to complain after final
judgment in the principal action does the losing party little
good.”).
Moore now has two options. His safest course of action
would be to return to state court and conclude his post-
conviction proceedings. If further state review is precluded
for any reason, Moore can return to federal court and
definitively establish exhaustion. Practically, under this
scenario, federal relief may be denied on the unexhausted
claims because he did not properly present them to the
state courts. On the other hand, if the state courts reject
those claims the district court thought unexhausted on the
ground that they were decided on direct appeal, the proce-
dure will have the beneficial effect of preventing the district
court from erroneously denying them as defaulted. Like-
wise, if the district court was correct that Moore has state
remedies available and the state court rules on his unex-
hausted claims, he can return to federal court and receive
substantive federal review.
Moore’s second, and more risky, option is to ask the
district court to enter a final judgment on its order dismiss-
ing the petition. See, e.g., First Health Group Corp. v. BCE
Emergis Corp., 269 F.3d 800, 802 (7th Cir. 2001) (appellant
rendered non-final order final for purposes of appeal by
electing to dismiss claims unconditionally); JTC Petroleum
Co. v. Piasa Motor Fuels, Inc., 190 F.3d 775, 776-77 (7th
Cir. 1999) (plaintiffs agreed to treat district court’s dis-
missal as being with prejudice, “thus winding up the
litigation and eliminating the bar to our jurisdiction”). He
should do so, however, only if he is absolutely sure he has
exhausted his state remedies because a final judgment
represents the end of this case. Even if the district court

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No. 03-3213 5
was wrong and Moore has exhausted his remedies, this
court would not grant a CA on the exhaustion issue unless
Moore could also show a substantial denial of a constitu-
tional right. Slack v. McDaniels, 529 U.S. 473, 484 (2000).
Thus, under this option, even if the district court errone-
ously dismissed the petition, Moore might not receive
substantive review of his constitutional claims.
Moore’s appeal is D ISMISSED for lack of jurisdiction.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—5-17-04

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