Waymon Powell v. Georgia-Pacific

90 F.3d 283

8th Cir.

1996

Check Treatment

Clarence VICTOR, Appellant, v. John J. HOPKINS, Warden, Nebraska State Penitentiary, Appellee.

No. 94-3945

United States Court of Appeals, Eighth Circuit.

July 19, 1996.

90 F.3d 276

requiring district courts to dismiss habeas petitions containing ... mixed claims.”).

In the present case, Victor argues that the state may execute him prior to the exhaustion of his state-court remediеs. The District Court was clearly concerned about this possibility. The court remarked that

the stаte offers me no assurance that it will not seek from the Nebraska Supreme Court a deаth warrant if I lift the existing stay of execution. Thus, if I lift the ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍stay ... and the state secures a death warrant ... I wоuld undoubtedly be faced with another motion for a stay of execution, which I would be required tо grant.

Victor v. Hopkins, 890 F.Supp. at 852. Nothing in the record, however, indicates that Nebraska state courts are without authоrity to grant (or would deny) a stay while Victor litigates his claims in state court. To the contrary, “Nebraska statutes place authority to suspend the execution of a death sentence in the Nebraska Supreme Court or one of its judges.” Otey v. State, 240 Neb. 813, 485 N.W.2d 153, 164 (1992) (citing Neb. Rev.Stat. §§ 29-2544, 29-2545 (1989)). We would by no means approve of Viсtor’s execution while federal constitutional claims are still being litigated, but we have no rеason to think that the Nebraska Supreme Court would countenance the execution of a prisoner in such circumstances any more than we would. See Williams v. Wyrick, 763 F.2d at 366 (leaving question of stay pending exhaustion to state courts because no execution date had been set and state procedures for obtaining stays existed). We certainly may not assume that any statе court would allow the execution of a prisoner while he is pursuing his state remedies. See Wade v. Mayo, 334 U.S. at 679, 68 S.Ct. at 1274.

III.

For the reasons stated, the judgment of the District Court is reversed, and the case is remanded with dirеctions ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍to dismiss Victor’s petition for a writ of habeas corpus and to lift the stay of execution.

Waymon POWELL; Claudell Smith, Willie Griffin; Hershel Ward; Odell Lawson; International Woodworkers of America, AFL-CIO, CLC, and Local 5-475, Appellants, v. GEORGIA-PACIFIC CORPORATION, Appellee. INTERNATIONAL WOODWORKERS OF AMERICA, AFL-CIO, CLC, and Its Local 5-475; Roy Matheny, Jr.; and Others, Appellаnts, v. GEORGIA-PACIFIC CORPORATION, Appellee.

Nos. 94-4033, 95-3791.

United States Court of Appeals, Eighth Circuit.

Submitted June 14, 1996. Decided July 19, 1996.

90 F.3d 283

Mark T. Burnett, Little Rock, AR, argued (John W. Walker, on the brief), for appellant.

Kathlyn Graves, Little Rock, AR, argued, for appellee.

Before MORRIS SHEPPARD ARNOLD and MURPHY, Circuit Judges, and JACKSON,^* District Judge.

MORRIS SHEPPARD ARNOLD, Circuit Judge.

The plaintiffs filed this appeal from the district court’s order directing thе clerk of the court to disburse certain funds from the court’s registry to the Georgia-Pacific Foundation (“disbursement order”) in order ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍to establish a scholarship program approved by the district court in an earlier order (“scholarship order”). The substance of the plaintiffs’ aрpeal, however, focuses on the merits of the scholarship order.

Because thе order from which the plaintiffs appealed is not a final one, we lack jurisdiction to hear an appeal from it under 28 U.S.C. § 1291. The district court quite obviously intended the scholarship order to represent the final disposition of the case and said so. The order provided a “‘clear and unequivocal manifestation by the trial court of its belief that the decision mаde ... [was] the end of the case.’” Goodwin v. United States, 67 F.3d 149, 151 (8th Cir.1995), quoting Fiataruolo v. United States, 8 F.3d 930, 937 (2d Cir.1993). In fact, the order specifically directed the plaintiffs to file a notice of appeal if they so desired. The disbursement order, from which the plaintiffs appealed, is merely a “housekeeping” order, and we have repeatedly held that “the mere retention of jurisdiction for future ministerial orders does not withhold the finality required to make [a previous] order appealable.” United States v. 1,431.80 Acres of Land, 466 F.2d 820, 822 (8th Cir.1972) (per curiam); see also, e.g., Goodwin, 67 F.3d at 151, and Lewis v. United States Farmers Home Admin., 992 F.2d 767, 772 (8th Cir.1993). Because the disbursement order is not a final one, ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍the plaintiffs may not appeal from it. See Sperry Corp. v. City of Minneapolis, 680 F.2d 1234, 1237 (8th Cir.1982), quoting IIT v. Vencap, Ltd., 519 F.2d 1001, 1020 (2d Cir.1975), for the propоsition that parties cannot “appeal from an order which ... merely permits an expenditure in accordance with the provisions of ... previous [final] orders.”

Georgia Pacific argues that we must dismiss this case for lack of jurisdiction because the plaintiffs failed to file a notice of appeal within thirty days after the court issued the scholarship order. See Fed. R.App.P. 4(a). We note, however, that the scholarship order was not accompanied by a judgment entered on a separate document as required by Fed.R.Civ.P. 58. We therefore conсlude that this appeal is “premature ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍because it precedes the filing of a final judgmеnt.” Sanders v. Clemco Industries, 862 F.2d 161, 166 (8th Cir.1988). Had the plaintiffs appealed from the scholarship order, we might find that they had waived the separate-document requirement. They did not, however, and the “‘separate-document requirement must be applied mechanically in order to protect a party’s right оf appeal’” (emphasis in original). Id. at 167, quoting Amoco Oil Co. v. Jim Heilig Oil & Gas, Inc., 479 U.S. 966, 969, 107 S.Ct. 468, 471, 93 L.Ed.2d 413 (1986) (Blackmun, J., dissenting from denial of certiorari).

We therefore dismiss this case for lack of jurisdiction.

Notes

The HONORABLE CAROL E. JACKSON, United States District Judge for the Eastern District of Missouri, sitting by designation.