ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA (D.C. Civil No. 96-37J)
Before: BECKER, NYGAARD and ROTH, Circuit Judges.
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.
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. Section(s) 848(q)(4)(B); 28 U.S.C. Section(s) 2251; McFarland v. Scott, 114 S. Ct. 2568 (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, 116 S. Ct. 1373 (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. Id. Due no 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 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.
28 U.S.C. Section(s) 1291 usually limits our appellate jurisdiction to reviewing final decisions of the district courts. Martin v. Brown, 63 F.3d 1252, 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, 57 F.3d 308, 311 (3d Cir. 1995); see also Isador Paiewonsky and Assoc. v. Sharp Properties Inc., 998 F.2d 145, 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, 98 F.3d 1548, 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, 40 F.3d 1454, 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. Beneficial Indus. Loan Co., 337 U.S. 541, 69 S. Ct. 1221 (1949). In Cohen, the Supreme Court held that a "small class" of collateral orders are final and appealable under 28 U.S.C. Section(s) 1291 even though they do not terminate the underlying litigation. 337 U.S. at 546, 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, 947 F.2d 49, 54 (3d Cir. 1991); see also ...