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Federal Habeas Procedure – Appellate: Non-Final Order (Dismissal with Leave to Re-file After Exhausting State Remedies)

Alan O. Moore, Sr. v. Mote, 368 F. 3d 754 (7th Cir. No. 03-3213, 5/17/04)

Issue/Holding: Dismissal with leave to refile following exhaustion of state court remedies doesn’t support a notice of appeal:

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 ….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 petitioner had exhausted all administrative remedies and there were no further state remedies available).

Moore now has two options. His safest course of action would be to return to state court and conclude his postconviction proceedings….

Moore’s second, and more risky, option is to ask the district court to enter a final judgment on its order dismissing the petition….

Moore reaffirmed (re: dismissal without prejudice to permit state court exhaustion), in James P. Dolis v. Chambers, 05-3781, 7/24/06.


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