Carter v. Buesgen, No. 20-3140 (7th Cir. 2021)
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In 2016, Wisconsin charged Carter with drug and firearm offenses. Mid-trial, Carter pleaded guilty to heroin and firearm charges; the state agreed to recommend a six-year sentence. The prosecutor backtracked at sentencing. The court sentenced Carter to nine years’ imprisonment in July 2017. Carter sought to appeal his sentence, contending that the prosecutor breached the plea agreement at sentencing and that the court imposed the sentence based on inaccurate information. In Wisconsin, a defendant must file, within 20 days of sentencing, a notice of intent to pursue post-conviction relief. Carter filed such a notice five days after sentencing. The public defender’s office assigned him counsel but the clerk and court reporter took 10 months to locate and share the trial transcripts, a step that should have been completed within 60 days. Carter’s counsel successfully filed a new extension request on each day the prior request was due to expire. Over four years Carter had three different public defenders and 14 extension requests by counsel and the court without a ruling on the merits.
Carter filed a pro se 28 U.S.C. 2254 petition. The Seventh Circuit reversed the dismissal of the petition. The “extreme and tragic” delay experienced by Carter excuses him from otherwise applicable statutory exhaustion requirements and shows that Wisconsin’s appellate process, at least with respect to Carter, is ineffective to protect rights secured by the U.S. Constitution.
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In the United States Court of Appeals For the Seventh Circuit ____________________ No. 20-3140 MARVIN L. CARTER, Petitioner-Appellant, v. CHRIS S. BUESGEN, Respondent-Appellee. ____________________ Appeal from the United States District Court for the Western District of Wisconsin. No. 3:19-cv-00949 — James D. Peterson, Chief Judge. ____________________ ARGUED MAY 18, 2021 — DECIDED AUGUST 18, 2021 ____________________ Before EASTERBROOK, BRENNAN, and SCUDDER, Circuit Judges. SCUDDER, Circuit Judge. Wisconsin inmate Marvin Carter has waited four years and counting to challenge his 2017 sentence on direct appeal in state court. Over these four years Carter has weathered a ten-month transcript delay, three different public defenders, and fourteen extension requests by counsel and the trial court itself. At no point during these four years has a single court in Wisconsin ruled on the merits of 2 No. 20-3140 Carter’s colorable challenge to his sentence. None of this is Carter’s fault. Carter responded to the delay by seeking relief in federal court under 28 U.S.C. § 2254. Although recognizing the inordinate delay Carter has endured in Wisconsin, the district court concluded that Carter had failed to exhaust his state court remedies and dismissed his petition without prejudice. At the very least, the district court added, Carter needed to lodge one nal plea for relief with the state court before returning to federal court. Carter appeals from that dismissal. We confront two issues: whether we have appellate jurisdiction to review the district court’s dismissal order and, if so, whether the delay experienced by Carter excuses him from the otherwise applicable statutory exhaustion requirement. We answer both questions in the a rmative, for what Carter has experienced—and, by every indication, will continue to experience—in the Wisconsin trial and appellate courts is extreme and tragic. The intractable delay shows that Wisconsin’s appellate process, at least as far as Carter is concerned, is ineffective to protect rights secured by the United States Constitution. So we reverse and remand to allow the district court to rule on the merits of Carter’s § 2254 petition without delay. I A Everything began in 2016 when Wisconsin charged Marvin Carter with possessing heroin, cocaine, and other narcotics with intent to deliver and, separately, with possessing a rearm as a convicted felon. Carter proceeded to trial in Milwaukee in 2017, but agreed midtrial to strike a deal with the No. 20-3140 3 state. In exchange for dismissal of the cocaine and narcotic drugs charges, Carter pleaded guilty to the heroin and rearm charges. As part of the deal, the state agreed to recommend a six-year sentence. But the prosecutor backtracked at sentencing, telling the trial court that “in hindsight, I so wish we would have allowed this to proceed through to the end of the trial and let the jury make their verdict because then I would have had four counts on the table today.” The prosecutor’s expression of regret seemed to strike a chord, as the court sentenced Carter to nine years’ imprisonment—three more than the parties agreed to recommend in the plea agreement. The court entered judgment in July 2017. Carter then sought to appeal his sentence, contending not only that the prosecutor breached the plea agreement at sentencing, but also that the trial court imposed the nine-year sentence based on inaccurate information—both in violation of his rights under the Fourteenth Amendment’s Due Process Clause. Carter’s rst claim is akin to the one recognized in Santobello v. New York, 404 U.S. 257 (1971), where the Supreme Court held that a criminal defendant is entitled to relief—in the form of resentencing or an opportunity to withdraw his guilty plea—if the state commits a material breach of a plea agreement in connection with the original sentencing. See id. at 262–63. As we have recognized in prior cases, the criminal appeal process in Wisconsin is unusual. See Huusko v. Jenkins, 556 F.3d 633, 634–35 (7th Cir. 2009). The rst avenue of relief available to a convicted prisoner is the so-called “postconviction motion” led under Wisconsin Statute § 974.02. See, e.g., Page v. Frank, 343 F.3d 901, 905–06 (7th Cir. 2003) (describing in 4 No. 20-3140 detail the Wisconsin statutory scheme); State ex rel. Rothering v. McCaughtry, 556 N.W.2d 136, 137–38 (Wis. Ct. App. 1996). The defendant must alert the trial court that a postconviction motion is coming by ling, within twenty days of sentencing, a notice of intent to pursue postconviction relief. See Wis. Stat. § 809.30(2)(b). In practice, this notice should trigger a series of obligations on the part of the clerk’s o ce—and, if the defendant requests counsel, the public defender’s o ce—to prepare for the postconviction motion. Operating as intended, the process should go like this: the clerk shares basic information about the case with the public defender’s o ce, and that o ce, in turn, assigns a lawyer to request the record and to draft the postconviction motion. See Wis. Stat. § 809.30(2). Each step comes with a short and explicit statutory deadline, and the § 974.02 postconviction motion should be led about ve months after the ling of the notice of intent. The motion, like the original notice of intent, must be led in the trial court. This requirement a ords the trial court (and, indeed, the original trial judge) an opportunity to consider any appellate challenge in the rst instance. An argument not raised in a § 974.02 postconviction motion is waived on appeal, save for two exceptions not relevant here. See Wis. Stat. § 974.02(2); State v. Hayes, 481 N.W.2d 699, 700 (Wis. Ct. App. 1992). The Wisconsin Court of Appeals plays an important role in the postconviction motion process too, as any request for an extension beyond these statutory deadlines must be led with and granted by that court. See Wis. Stat. § 809.82(2)(a). This is so even though the trial court rules on the postconviction motion in the rst instance. No. 20-3140 5 Our point with all of this is to say that Wisconsin’s postconviction review process under § 974.02 is itself complex and likely unfamiliar and counterintuitive to many readers. See Huusko, 556 F.3d at 634–35 (“Wisconsin combines some aspects of direct and collateral review.”). For our purposes, though, what matters is that the § 974.02 postconviction motion operates as a prerequisite to accessing the state’s direct appeal process. See Morales v. Boatwright, 580 F.3d 653, 656 (7th Cir. 2009); see also Page, 343 F.3d at 906 (“If an issue is raised in the § 974.02 motion but relief is denied by the trial court, the defendant then may appeal to the Court of Appeals of Wisconsin.”). Down the road, after “the time for appeal or postconviction remedy provided in § 974.02 has expired,” the defendant may collaterally attack his sentence. Wis. Stat. § 974.06(1). Of course, if the state process does not result in relief, the defendant may then seek collateral review in federal court under 28 U.S.C. § 2254. Marvin Carter led a notice of intent to pursue postconviction relief with the trial court on July 25, 2017— ve days after sentencing. In line with the Wisconsin statute, the public defender’s o ce promptly assigned him counsel. So far, so good. But stagnation soon followed. The clerk and court reporter took ten months to locate and share the trial transcripts that Carter’s counsel requested—a step that should have been completed within 60 days. See Wis. Stat. § 809.30(2)(g). Things only got worse from there. On the day of the deadline to le the § 974.02 postconviction motion, Carter’s counsel sought more time. He explained that his heavy caseload prevented him from meeting with Carter or reviewing the case materials. So too did Carter’s counsel le a separate 6 No. 20-3140 motion asking the court to retroactively extend the time to request certain transcripts, as some slipped through the cracks during the initial request process. The Wisconsin Court of Appeals granted both motions in September 2018. By then, over one year had passed since Carter’s July 2017 conviction and sentence. With the bene t of hindsight, we now know that the delay for Carter was just beginning. Carter’s counsel followed his rst request to extend the deadline to le the postconviction motion with a second. And a third. And a fourth. This pattern continued for months, with Carter’s counsel ling a new extension request on each day the prior request was due to expire. By late 2019—more than two years after Carter’s July 2017 conviction and sentence—counsel had led seven requests to extend the motion deadline. The Wisconsin Court of Appeals granted each motion in rote fashion. B Trapped by his counsel’s recurring extension requests and what he saw as the complicity of the Wisconsin courts in the ongoing delay, Carter turned to federal court. In November 2019 he invoked 28 U.S.C. § 2254 and led a pro se petition for postconviction relief in the Western District of Wisconsin, raising the same two sentencing challenges he had tried to present to the state trial court. Section 2254 provides that relief “shall not be granted” unless the petitioner has exhausted the remedies available in state court. 28 U.S.C. § 2254(b)(1)(A). The statute quali es that rule, however, with exceptions. The petitioner need not exhaust if there is “an absence of available State corrective process” or “circumstances exist that render such process No. 20-3140 7 ine ective to protect the rights of the applicant.” Id. § 2254(b)(1)(B)(i)–(ii). Carter acknowledged that he did not exhaust state court remedies. But he was quick to explain to the district court that he had tried to do so but found himself stuck by the endless extensions sought by his counsel and granted by the Wisconsin Court of Appeals. Upon receiving Carter’s petition, the district court directed the parties to brief whether Carter should be excused from further e orts to exhaust under the exceptions Congress supplied in § 2254(b)(1)(B)(i)–(ii). Nearly another year passed—with no forward progress and indeed no movement of any kind in the Wisconsin courts—before the district court issued its September 28, 2020 order dismissing Carter’s petition for failure to exhaust. In no uncertain terms, the district court found the delay entrenched and extraordinary: The delay in Carter’s postconviction or appellate process is inordinate. It has been more than three years after his judgment of conviction, and his case has gone nowhere. From the docket of Carter’s circuit court proceedings, it appears that some of that time is attributable to a delay in the production of transcripts. But even after that issue was resolved, Carter’s appointed appellate counsel has received ten extensions of time to le a notice of appeal or postconviction motion. The case has languished even since Carter led this habeas petition. Carter v. Richardson, No. 19-cv-949-jdp, 2020 WL 8613978, at *1 (W.D. Wis. Sept. 28, 2020) (citations omitted). 8 No. 20-3140 From there, however, the district court directed Carter to give the Wisconsin courts a nal chance to act. The district court questioned whether “the state courts are aware that [Carter] disapproves of his counsel’s repeated requests for extension of time.” On that reasoning, the court dismissed Carter’s petition “without prejudice,” directing the clerk of court to send a copy of its order to Carter’s state counsel as well as to the Wisconsin trial and appellate courts. But the district court recognized that reasonable jurists could debate the propriety of the dismissal and therefore granted a certi cate of appealability. From the day Carter led his § 2254 petition to the day the district court entered its dismissal order, the Wisconsin Court of Appeals extended the deadline for counsel to le a § 974.02 postconviction motion ve more times. By our tally, then, Carter’s counsel led twelve consecutive extension requests, collectively pushing the deadline to le the motion to November 24, 2020. And, as best we can tell, not once has the Wisconsin Court of Appeals—or any other Wisconsin court for that matter—recognized that Carter’s case has been stalled for over four years. C There is little to report by way of progress in state court over the last nine months. As promised, the district court sent a copy of its September 28, 2020 order to the trial court, the Wisconsin Court of Appeals, and Carter’s counsel. Perhaps stirred by the district court’s order, counsel led Carter’s postconviction motion with the trial court on the November 24, 2020 deadline. No. 20-3140 9 But the good news for Carter ends there. After ling the postconviction motion, Carter’s public defender withdrew from the case—as did the next assigned lawyer. We have no reason to think that Carter shoulders any fault for these shuf es of counsel. He is now represented in the postconviction process by a third public defender as he continues to await a decision from the trial court on the motion he led last year. And there is no way to know when Carter might expect that decision. Although the trial court must issue an order on a postconviction motion “within 60 days” of the conclusion of brie ng, see Wis. Stat. § 809.30(2)(i), the trial court itself has requested, and the Wisconsin Court of Appeals has granted, two extensions of that deadline to date. And on top of that, the Wisconsin Court of Appeals on its own accord issued a third extension of time for the trial court. The latest deadline—October 11, 2021—will arrive more than four years after Carter’s July 2017 conviction and sentence. During oral argument and in brie ng, Carter emphasized that time is of the essence: if the trial court had adopted the sentence that the state agreed to recommend in his plea agreement, he would be due for release in just six months, on February 10, 2022. II We begin as we must with appellate jurisdiction. The state insists that the district court’s dismissal order lacks the nality required by 28 U.S.C. § 1291. Finality is absent, the state urges, because the district court’s dismissal was “without prejudice” and therefore, by its terms, contemplates that Carter may return to federal court if the state proceedings do not budge—leaving nothing for us to review today. We cannot agree. 10 No. 20-3140 We have jurisdiction over appeals from all nal decisions of the district courts. See 28 U.S.C. § 1291. As a general and highly imperfect rule of thumb, a dismissal with prejudice is nal and thus reviewable, and a dismissal without prejudice is not. See Kaba v. Stepp, 458 F.3d 678, 680 (7th Cir. 2006). The thought behind this distinction is that a dismissal without prejudice a ords the plainti an opportunity to x the shortcoming that led to the dismissal before returning to federal court for another try. See Maddox v. Love, 655 F.3d 709, 716 (7th Cir. 2011). But we have been careful to underscore that “the label ‘without prejudice’ does not always prevent a disposition from being a de facto nal judgment.” Gleason v. Jansen, 888 F.3d 847, 852 (7th Cir. 2018); see also Hill v. Potter, 352 F.3d 1142, 1144 (7th Cir. 2003). Indeed, we often encounter “situations in which an order nominally dismissing a case without prejudice is in fact nal because an amendment would be unavailing.” Montano v. City of Chicago, 375 F.3d 593, 597 (7th Cir. 2004); see also Maddox, 655 F.3d at 716. When it would be futile for the plainti or petitioner to attempt to resolve the issue that caused the district court to dismiss the case, then, a seemingly non nal order is “functionally nal” and thus appealable under § 1291. Gacho v. Butler, 792 F.3d 732, 736 (7th Cir. 2015). We see nality in the futility of the district court’s directing Carter—who has experienced nothing but delay and inaction for four years in the Wisconsin trial court—to try a nal time to bring his appeal to life. Remember what the district court rst found: that “[t]he delay in Carter’s postconviction or appellate process is inordinate,” as “[i]t has been more than three years after his judgment of conviction, and his case has No. 20-3140 11 gone nowhere.” Carter, 2020 WL 8613978, at *1. Carter’s case, the district court likewise emphasized, “has languished even since [he] led this habeas petition.” Id. These ndings re ect nothing other than a conclusion that it would be futile for Carter to continue his attempts to exhaust in state court. Put another way, the district court recognized that Wisconsin’s postconviction review process has failed Carter as a practical matter. There is no indication that Wisconsin will take up his postconviction motion at any time in the foreseeable future. What all of this means is that Carter has no more remedies to exhaust, so whatever lack-of-exhaustion defect the district court recognized is functionally impossible to repair. See Strong v. David, 297 F.3d 646, 648 (7th Cir. 2002). By directing Carter to return to state court for one last try, the district court invited Carter to attempt a feat guaranteed to fail. In these circumstances, the district court’s order is functionally nal, and we have appellate jurisdiction to review the district court’s dismissal order under § 1291. As a descriptive matter, the state is correct that the district court, in entering the dismissal without prejudice, contemplated that Carter “may re le his habeas petition” in the event that the Wisconsin case “doesn’t budge.” Carter, 2020 WL 8613978, at *2. But that observation (or perhaps prediction) alone does not resolve whether the district court’s judgment is nal within the meaning of § 1291. “Often it is possible that a dismissed case will resume in one form or another, especially if the dismissal is based on a jurisdictional or procedural defect” and “[y]et in countless cases a dismissal for failure to exhaust state judicial remedies … has been appealed as a nal judgment.” See Hill, 352 F.3d at 1145. Rather, we judge nality by considering the whole of the district court’s order and 12 No. 20-3140 asking whether “the district court has nished with the case.” Id. at 1144. Though we recognize that state court remedies exist in theory in Wisconsin and should be available, the last four years have demonstrated that those remedies are, at least for Carter, inaccessible. The district court makes all of this plain in its order. Its subsequent instruction that Carter give the Wisconsin courts one more try is at odds with the substance of its reasoning and insu cient to deprive the judgment of nality. We have held that futility reveals nality in related contexts too. The Prison Litigation Reform Act, for instance, mandates that an inmate exhaust administrative remedies before bringing suit to challenge prison conditions in federal court. See 42 U.S.C. § 1997e(a). Because the Act’s exhaustion requirement is ironclad, see Ross v. Blake, 136 S. Ct. 1850, 1856 (2016), district courts often dismiss prisoners’ § 1983 claims without prejudice for failure to exhaust. Time and again, we have exercised appellate jurisdiction to review those dismissal orders on the ground that the prisoner missed the limitations period or is no longer incarcerated and is thus unable to exhaust administrative remedies. See, e.g., Hernandez v. Dart, 814 F.3d 836, 841 (7th Cir. 2016) (exercising jurisdiction because the respective deadlines for administrative remedies “have long since passed” so “it would be impossible at this point for [the plainti ] to exhaust his administrative remedies and thereafter amend his complaint”); Kaba, 458 F.3d at 680 (exercising jurisdiction because the plainti “was released from prison, and therefore the dismissal without prejudice for failure to exhaust is e ectively a nal order because no amendment could No. 20-3140 13 resolve the problem”); Dixon v. Page, 291 F.3d 485, 488 (7th Cir. 2002) (same). Much the same reasoning applies here. After nding that Carter’s case “has gone nowhere” and has “languished” year after year, the district court directed Carter to give the state process one nal shot. No doubt the district court issued this instruction out of respect for principles of federalism and comity. But the undisputed record of delay in state court leaves us unpersuaded that any future attempts by Carter to exhaust will be anything other than a fool’s errand—entirely futile. See Maddox, 655 F.3d at 716 (explaining where “there is nothing to indicate that a plainti or petitioner can x” his exhaustion error, a “dismissal without prejudice does not preclude our appellate jurisdiction”) (cleaned up). Our prior decisions in Moore v. Mote, 368 F.3d 754 (7th Cir. 2004), and Gacho v. Butler, 792 F.3d 732 (7th Cir. 2015)—two cases in which we concluded we lacked appellate jurisdiction over § 2254 exhaustion dismissals—are not to the contrary. For its part, Moore reinforces the proposition that, in the ordinary course, exhaustion is required under § 2254(b)(1) and, absent special circumstances, an order dismissing a petition for a clear failure to exhaust will lack the nality requisite to authorize appellate review. See 368 F.3d at 755 (explaining that no “special circumstances” justi ed Moore’s attempt to jump the line to federal court because he could “easily return to state court, conclude his pending action, and then submit the state court decision … to the district court”). But Carter’s case is far from ordinary. He cannot “easily” return to state court, where his case remains in an inde nite holding pattern. We see no reason past will not be prologue in the Wisconsin courts for Carter. 14 No. 20-3140 Nor are we convinced that Gacho requires us to dismiss Carter’s appeal for lack of appellate jurisdiction. Like Marvin Carter, Robert Gacho experienced massive delays in state court—though the reasons behind the many years Gacho spent in state proceedings were “not entirely clear.” 792 F.3d at 737. Gacho, too, sought relief in federal court under § 2254 and hit a roadblock when the district court dismissed his petition without prejudice for failure to exhaust. But the district court expressly found that Gacho’s “[p]roceedings in the state court … are currently moving at a reasonable rate and there is no inordinate delay that must be remedied.” 792 F.3d at 735 (alterations in original). On appeal, we echoed the district court’s nding that Gacho’s case “has crawled along slowly but steadily and appears to be close to nal resolution.” Id. at 737. Seeing no futility in allowing the state court’s proceedings to reach nality, we relied on Moore and dismissed the appeal for lack of appellate jurisdiction, emphasizing that Gacho could return to federal court if he did not receive relief in the Illinois courts. The situation here is di erent. Carter’s case is at a standstill before the Wisconsin trial court and shows no sign of going anywhere anytime soon. This reality is captured by the district court’s express ndings that Carter’s case has gone nowhere and that the delay is inordinate. It is precisely these ndings that distinguish the situation here from Moore and Gacho and that solidify our appellate jurisdiction. III Assured of our jurisdiction, we proceed to the merits of the district court’s decision to dismiss Carter’s petition. The district court interpreted 28 U.S.C. § 2254(b) and concluded that Carter must attempt to exhaust state court remedies at No. 20-3140 15 least one more time before seeking federal relief. Not so in our view. Recall that § 2254(b)(1) requires, as a prerequisite to federal relief, that a petitioner “exhaust[ ] the remedies available in the courts of the State.” 28 U.S.C. § 2254(b)(1)(A). But Congress took care to ensure that the exhaustion requirement— for all of its practical virtue—would not leave state prisoners without a remedy. To that end, the exceptions found in § 2254(b)(1)(B) permit federal review where state court remedies are unavailable or ine ective. And of course, “[e]xceptions and exemptions are no less part of Congress’s work than its rules and standards—and all are worthy of a court’s respect.” BP P.L.C. v. Mayor and City Council of Baltimore, 141 S. Ct. 1532, 1539 (2021). Carter contends that state court remedies in Wisconsin are ine ective to protect his rights. We agree, for the facts in this case a ord no other reasonable conclusion. As the district court correctly observed, the delay in Carter’s case is extreme. More than four years have passed since Carter’s conviction and sentence. The length of the delay should have sounded an alarm bell within the Wisconsin courts, the public defender’s o ce, and even the Attorney General’s o ce. See Dozie v. Cady, 430 F.2d 637, 638 (7th Cir. 1970) (seventeenmonth delay is inordinate); Lowe v. Duckworth, 663 F.2d 42, 43 (7th Cir. 1981) (three-and-one-half-year delay is inordinate). Everyone doing nothing is no longer an option. Carter has demonstrated what Congress required to excuse exhaustion of state court remedies—Wisconsin’s postconviction review process has, for all practical purposes, proved itself unavailable to him or, at the very least, “ine ective to protect [his] rights.” 28 U.S.C. § 2254(b)(1)(B)(i)–(ii). 16 No. 20-3140 Carter has yet to move beyond the trial court and toward his direct appeal. Not a single court has reviewed his sentencing challenge at any level of the state judiciary. No substantive motion has been granted or denied in these four years, and no administrative procedure seems to be in place to detect and end the severe stagnation. His colorable Santobello claim has fallen upon deaf ears, and we are left with the impression that for Carter, justice delayed has become justice denied. Carter’s case is stuck in park. In these circumstances, then, Carter is excused from exhausting and may bring the claims alleged in his state motion for postconviction relief directly to federal court. See Jackson v. Duckworth, 112 F.3d 878, 881 (7th Cir. 1997). What makes all of this so tragic is that the state itself is responsible for the delays. The clerk’s o ce failed to transmit the necessary record documents for ten months. Carter’s ( rst) public defender led, and the Wisconsin Court of Appeals granted, twelve extension requests. The trial court itself led two extension requests, and the Wisconsin Court of Appeals added a third extension of time too. Each entry indicates the request is granted, followed by a new, extended date. The record does not show any court rules or internal operating procedures from which it can be determined who decides these requests—does a single judge hear the motion, or a motions panel of judges? Is it court administrators or lower-level court employees? Rather than dismiss this case as an outlier, Wisconsin’s courts need to x the systemic de ciency that has resulted in how Carter’s case has been treated, and become more transparent about how discretion is exercised, for the bene t of the parties, their counsel, other courts, and the public. No. 20-3140 17 It seems the only person without blame for the delay is Carter himself. For this reason, we were alarmed to see the state point its nger at Carter and, in its brie ng, go so far as to say that he is at fault because he “complained to no one about the delays until after he came into federal court.” It is not clear to us what else Marvin Carter could have done or, for that matter, why the state is so intent on avoiding responsibility for its own failings. And we were shocked anew by the state’s presentation at oral argument. When asked whether the Attorney General had led anything with the Wisconsin Supreme Court alerting it to the serious problems in the lower courts, counsel insisted, “We don’t have a problem.” That view is indefensible: a miscarriage of justice occurs when a convicted prisoner must wait four years for appellate review. We VACATE the judgment and REMAND to the district court to commence review of Carter’s § 2254 petition without delay. 18 No. 20-3140 EASTERBROOK, Circuit Judge, concurring. I join parts I and III of the court’s opinion. I agree with the outcome of part II, but it does not go far enough. Moore v. Mote, 368 F.3d 754 (7th Cir. 2004), and Gacho v. Butler, 792 F.3d 732 (7th Cir. 2015), should be overruled rather than distinguished. Moore and Gacho are among decisions that take the phrase “without prejudice” as a talisman meaning “no appellate jurisdiction.” My colleagues observe that other decisions look in another direction. One example is litigation dismissed for failure to exhaust administrative remedies (slip op. 12–13). Often “without prejudice” means “there’s more to do in this court”; that’s so, for example, when a complaint is dismissed without prejudice but could be amended, so the suit itself remains pending. Then the decision is not nal. But more often “without prejudice” means “you should be in some other tribunal.” Then the decision in the district court is nal and appealable, and all “without prejudice” means is that the law of preclusion (res judicata) will not block the next step in a di erent court. Consider a dismissal for lack of venue, personal jurisdiction, or subject-matter jurisdiction. Such a dismissal always is without prejudice, because the federal court has not decided the merits. The litigants may be able to go to a state court, or an administrative tribunal, or an arbitrator, or even le a new federal suit after some condition has been satis ed. But the current suit is over, and we routinely hear appeals in which the loser argues that it is unnecessary to go elsewhere and that the current suit should continue. This is so obvious that appellate jurisdiction is mentioned only rarely. But when appellate jurisdiction is contested, this sort of decision is held to be nal. See, e.g., Green Tree Financial No. 20-3140 19 Corp. v. Randolph, 531 U.S. 79 (2000) (order dismissing suit without prejudice and directing the parties to arbitrate is nal and appealable). Appellate jurisdiction is supposed to be determined using simple, bright-line rules. See, e.g., Budinich v. Becton Dickinson & Co., 486 U.S. 196, 201–03 (1988); Ray Haluch Gravel Co. v. Central Pension Fund, 571 U.S. 177, 185–86 (2014). A decision is nal when the district court has disposed of all pending issues, and the next step (if there is one) must occur elsewhere. See, e.g., Catlin v. United States, 324 U.S. 229, 233 (1945); Hill v. Potter, 352 F.3d 1142, 1144 (7th Cir. 2003) (“The test for nality is not whether the suit is dismissed with prejudice or without prejudice, on the merits or on a jurisdictional ground or on a procedural ground such as failure to exhaust administrative remedies … . The test is whether the district court has nished with the case.”). See also 15A Charles Alan Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice & Procedure §3914.6 (2d ed. 1992 & Supp. 2021). Other kinds of decisions may be nal—if, say, they reject a claim of a “right not to be tried”—but a decision closing the case always is nal. Here is a simple rule: when “without prejudice” means “I have not resolved the merits but this case is over nonetheless,” then the decision is nal; when it means “the problem can be xed so that litigation may continue in this court,” then the decision is not nal. In our case the phrase “without prejudice” means “go litigate some more in Wisconsin.” The judge contemplated that an adverse decision by the state’s judiciary might justify more federal litigation, but this case is over, so Carter can appeal. 20 No. 20-3140 Moore and Gacho should not be allowed to mess up jurisdictional analysis, sending bench and bar on hunts for novel ways to appeal from dismissals without prejudice. The lawyers in this case devoted tens if not hundreds of hours, and reams of paper, to analyzing the collateral-order doctrine and the treatment of stays in Moses H. Cone Memorial Hospital v. Mercury Construction Corp., 460 U.S. 1 (1983), when the only important question is whether the judgment is nal under traditional principles. Or consider my colleagues’ statement (slip op. 11) that the district court’s order is “functionally nal” because further litigation in Wisconsin is “guaranteed to fail.” That should not matter—nor should it be necessary to insult the state judiciary (by predicting that it will reject a meritorious request) in order to see that a federal judgment is appealable. What makes this judgment nal is the fact that the district judge told Carter to litigate in a di erent court. Finality depends on what the district judge did, not on what that other court may do tomorrow.
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