7th Circuit affirms dismissal of habeas petition, but overturns 2 cases on jurisdiction

The 7th Circuit Court of Appeals has affirmed the dismissal of a parolee’s habeas petition for failure to exhaust state remedies, but not for lack of jurisdiction. In reaching its decision, the appellate court overturned two precedents described as causing “mischief.”

During his imprisonment in Indiana, Lamone Lauderdale-El petitioned for a writ of habeas corpus challenging the loss of good-time credits resulting from his prison disciplinary conviction. Lauderdale-El’s petition asserted that prison officials violated his due process rights in applying an Indiana Department of Correction policy rescinding his previously restored good-time credits.

The U.S. District Court for the Southern District of Indiana concluded that he could challenge the restoration policy in state court, so it dismissed the case without prejudice for failure to exhaust state-court remedies.

Lauderdale-El appealed. Meanwhile, he was released from prison.

That put two questions to 7th Circuit: whether a petitioner’s release from prison during appeal makes the case moot, and whether a dismissal of a habeas petition without prejudice for failure to exhaust available state remedies is an appealable final judgment.

First, the 7th Circuit found that Lauderdale-El was still on parole at the time of his release from prison, so the case could not be dismissed as moot.

“Because parole is a form of custody, a case that could shorten a former prisoner’s term of parole is not moot,” Circuit Judge David Hamilton wrote.

Second, it found that the dismissal of Lauderdale-El’s petition for failure to exhaust state-court remedies was final as a practical matter.

As such, it overruled two cases described as “outliers”: Gacho v. Butler, 792 F.3d 732 (7th Cir. 2015), and Moore v. Mote, 368 F.3d 754 (7th Cir. 2004). Gacho and Moore “dismissed for lack of appellate jurisdiction appeals from district court decisions dismissing habeas corpus petitions without prejudice for failure to exhaust state remedies.”

“They are out of step with our practice in other habeas appeals, the practice of other circuits, and more general principles of appellate jurisdiction,” Hamilton wrote. “As Judge (Frank) Easterbrook pointed out in his concurrence in Carter v. Buesgen, 10 F.4th 715, 725 (7th Cir. 2021), Gacho and Moore continue to cause confusion and mischief, wasting the time of lawyers and judges. It’s time to overrule their holdings on appellate jurisdiction.

“… Judge Easterbrook urged that Gacho and Moore be overruled rather than distinguished, noting the awkwardness of having appellate jurisdiction depend on the merits of the underlying appeal, the confusion engendered by Gacho and Moore, and the conflict between their rule and predominant approaches to appellate jurisdiction,” the judge continued.

Additionally, the appellate court noted that the Federal Reporters, Federal Appendix and online databases “are full of hundreds if not thousands of appeals challenging dismissals of habeas petitions for failure to exhaust state-court remedies.”

“If Gacho and Moore were correct,” Hamilton wrote, “virtually all of those appeals should have been dismissed for lack of appellate jurisdiction, and the many erroneous dismissals for failure to exhaust and occasional erroneous conversions of civil rights cases into habeas petitions would have defied appellate review.”

Thus, the 7th Circuit determined it had jurisdiction over Lauderdale-El’s appeal. But it also noted he could have pursued his good-time credit restoration claim in state court, but did not do so.

As a result, it affirmed the judgment dismissing his petition without prejudice in Lamone Lauderdale-El v. Indiana Parole Board, 21-1242.

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