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Kell v. Benzon — F.3d —, Case No. 17-4191 (May 28, 2019)

May 28, 2019

On a habeas petition, Kell asserted two new claims after his initial petition was filed.  The district court stayed one of the new claims to allow exhaustion in state court while the remaining claims proceeded.  The Government filed a notice of appeal asserting that the collateral-order doctrine applied to the stay order.  The Tenth Circuit held, over a dissent by Judge Baldock, that the collateral-order doctrine did not apply to so-called Rhines stays in the habeas context, and dismissed the appeal for lack of jurisdiction