Mulder v. MCDANIEL et al

Filing 110

ORDERED that petitioner's # 109 Motion for permission to appeal is DENIED. Signed by Judge Philip M. Pro on 11/13/2013. (Copies have been distributed pursuant to the NEF - DRM)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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MICHAEL JOSEPH MULDER,

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Petitioner,

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vs.

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RENEE BAKER, et al.,

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Respondents.

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3:09-CV-00610-PMP-WGC
ORDER

On November 7, 2013, the petitioner in this capital habeas corpus action, Michael Mulder,

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filed a “Motion for Permission to Appeal,” with respect to this court’s orders of May 1, 2013 (ECF

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No. 92), and October 23, 2013 (ECF No. 108), which denied Mulder’s request for a temporary stay

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pursuant to Ryan v. Gonzales, 133 S.Ct. 696 (2013). According to Mulder, this court abused its

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discretion by depriving him the opportunity to demonstrate that there is a reasonable likelihood he

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can be restored to competence in the foreseeable future. Mulder asks the court to amend its order of

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October 23, 2013, to include language that would allow for either an appeal under the collateral

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order doctrine or an interlocutory appeal pursuant to 28 U.S.C. § 1292(b).

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Under 28 U.S.C. § 1292(b), the district court has the discretion to certify an order for

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interlocutory appeal when the court is of the opinion that the order “involves a controlling question

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of law, as to which there is substantial ground for difference of opinion, and that an immediate

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appeal may materially advance the ultimate termination of the litigation.” Section 1292(b)

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certification is a “narrow exception to the final judgment rule.” Couch v. Telescope Inc., 611 F.3d

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629, 633 (9th Cir. 2010). The certification “serves the dual purpose of ensuring that [appellate]

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review will be confined to appropriate cases and avoiding time-consuming jurisdictional

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determinations in the court of appeals.” U.S. v. W.R. Grace, 526 F.3d 499, 522 (9th Cir. 2008)

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(quoting Coopers & Lybrand v. Livesay, 437 U.S. 463.74-75 (1978)). Section 1292(b) “is to be

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applied sparingly and only in exceptional cases, and . . . ‘the controlling question of law’

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requirement [is to] be interpreted in such a way to implement this policy. See In re Cement Antitrust

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Litig., 673 F.2d 1020, 1027 (9th Cir. 1982).

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Here, the underlying issue – i.e., the likelihood Mulder will be restored to competence in the

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foreseeable future – is more an issue of fact subject to this court’s discretion than it is a question of

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law, much less a “controlling” question of law. Moreover, it is far from clear that there is

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“substantial ground for difference of opinion” as to the court’s interlocutory decision. See Couch,

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611 F.3d at 633 (noting that just because an issue is one of first impression does not mean there is

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such a substantial difference of opinion as will support an interlocutory appeal). Aside from those

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concerns, this court is simply not convinced that allowing an interlocutory appeal may expedite the

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disposition of this case.

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The Ninth Circuit has indicated that this requirement is met when resolution of the legal

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question “may appreciably shorten the time, effort, or expense of conducting a lawsuit.” In re

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Cement Antitrust Litig., 673 F.2d at 1027; Moore's Fed. Prac. – § 203.31[3] (noting that “[courts]

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look for a ‘controlling’ question that has the potential of substantially accelerating disposition of the

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litigation”). Mulder makes the confusing claim that an interlocutory appeal “could obviate the need

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for the parties to litigate, and the Court to adjudicate, the claims contained in the amended petition

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and the Ninth Circuit may determine such litigation to be null and void based on this Court’s failure

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to allow [him] an opportunity to attempt to restore himself to competence prior to proceeding with

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the litigation of his habeas petition.” ECF No. 106, p. 9. Presumably, what Mulder is suggesting is

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that a reversal on appeal after final judgment could require this court to re-adjudicate the claims in

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his amended petition.

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At this point, it is hard to conceive how an interlocutory appeal would materially advance the

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ultimate termination of the litigation. To begin with, the only claims implicated in the decision to

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deny Mulder a temporary stay are those that “could substantially benefit from the petitioner's

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assistance.” Gonzales, 133 S.Ct. at 709. Generally, only claims that are unexhausted and not

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procedurally defaulted fit in that category. Id. Mulder’s amended petition appears to contain

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unexhausted claims, but the determination as to whether those claims are procedurally defaulted has

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yet to be made. Moreover, an interlocutory appeal, even if successful, is likely to add litigation by

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requiring additional Gonzales inquiry. In short, the small chance that an interlocutory appeal might

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materially advance the termination of this case is insufficient to overcome the general disfavor of the

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procedure. As such, the court is not willing to amend its order of October 23, 2013, to allow for an

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interlocutory appeal pursuant to 28 U.S.C. § 1292(b).

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As for Mulder’s claim that the order denying him a temporary stay is appealable as a

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“collateral order,” the court does not find that the order would be “effectively unreviewable on

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appeal from the final judgment in the underlying action.” See Swint v. Chambers County

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Commission, 514 U.S. 35, 42 (1995) (citing Cohen v. Beneficial Industrial Loan Corp., 337 U.S.

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541, 546 (1949)). In Thompson v. Frank, 599 F.3d 1088 (9th Cir. 2010), the Ninth Circuit noted that

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an order granting a motion for stay and abeyance was reviewable on appeal after final judgment,

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599 F.3d at 1090. Accordingly, the court in Thompson held that it did not have jurisdiction to review

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the order under the collateral order doctrine. Id.

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Although the issue here is whether an order denying a motion for stay is reviewable on appeal

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after final judgment, the court in Thompson cited to Olvera v. Giurbino, 371 F.3d 569 (9th Cir. 2004),

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as one authority for its holding. In Olvera, the court of appeals reviewed, after final judgment, an

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order denying an exhaustion stay. 371 F.3d at 574. Also, while Thompson and Olvera involved

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exhaustion stays, Mulder has not demonstrated that the erroneous denial of a temporary stay under

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Gonzales cannot also be fully remedied on appeal from the final judgment. If anything, the passage

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of time will clarify for the appellate court whether Mulder’s condition is such that this court abused

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its discretion by not granting a temporary stay. Because the errors asserted by Mulder can be cured

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on appeal after final judgment, an appeal under the collateral order doctrine is not appropriate.

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IT IS THEREFORE ORDERED that petitioner’s motion for permission to appeal (ECF
No. 109) is DENIED.
DATED: November 13, 2013

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_________________________________________
UNITED STATES DISTRICT JUDGE

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