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Court of appeals had no jurisdiction to review district court’s dismissal of habeas petition without prejudice

Robert Gacho v. Kim Butler, 7th Circuit Court of Appeals No. 13-3911, 7/2/15

The dismissal of Gacho’s habeas petition without prejudice to refiling makes the dismissal order non-final; because the court of appeals’ jurisdiction extends only to final orders, his appeal is dismissed.

Gacho’s state postconviction proceedings have been ongoing since 1991. (He is challenging his murder conviction because his trial was conducted before famously corrupt Cook County Circuit Judge Thomas Maloney, who was convicted of bribery after the Operation Greylord investigation, and because his trial lawyer had a conflict of interest because he represented members of the murder victim’s family. (Slip op. at 2-4).) Gacho has filed three federal habeas petitions, one of which asked for relief from the unjustifiable delay in the state postconviction proceedings. The most recent one, filed in May 2013, asking he be excused from the state exhaustion requirement because of the inordinate delay. He appeals the district court’s denial of the 2013 petition without prejudice to refiling upon the conclusion of the state proceedings. (Slip op. at 4-5). The court of appeals concludes it has no jurisdiction because Gacho is appealing from a non-final order:

This is not the first time we have addressed this kind of jurisdictional defect in the context of an unexhausted § 2254 petition. In Moore v. Mote, the district court dismissed a state prisoner’s § 2254 petition for failure to exhaust state remedies because his claims remained “pending before a state post-conviction court.” 368 F.3d 754, 755 (7th Cir. 2004). But the court had expressly left the door open to reviving the federal case when the state proceedings concluded. The judge dismissed the petition without prejudice and “with leave to refile … once Moore exhausts his state court remedies.” Id. We held that the court’s order was nonfinal and thus not appealable under [28 U.S.C.] § 1291 “because it explicitly contemplates the court’s continuing involvement in the case.” Id. Accordingly, we dismissed the appeal for lack of appellate jurisdiction. Id. at 756.

The situation here is identical. …. (Slip op. at 7).

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