Robert Jeffrey FARMER, Petitioner-Appellee, v. E.K. McDANIEL; Attorney General of the State of Nevada, Respondents-Appellants

This appeal requires us to consider a novel, but narrow question: whether an amended third habeas corpus petition by a prisoner in state custody may be subject to dismissal for abuse of the writ even though prior petitions were dismissed for failure to exhaust and thus were not reviewed on the merits. 1 The district court thought not, but the State of Nevada wants the opportunity to argue that Robert Jeffrey Farmer has filed a series of petitions with new, unexhausted claims to avoid (and delay for more than seven years) a review of his sentence and conviction in federal court. It has timely appealed a judgment dismissing Farmer’s amended third petition pursuant to Rose v. Lmndy, 455 U.S. 509 , 102 S.Ct. 1198 , 71 L.Ed.2d 379 (1982).

Although Farmer submits that dismissal of his amended third petition without prejudice is not a final, appealable order, and that the state lacks standing to appeal from an order in its favor, we think otherwise. As a practical matter, dismissal of Farmer’s petition put an end to this action in the district court and, despite prevailing to the extent that Farmer is required to exhaust claims that the state contends were unexhausted, Nevada did not…

concurring in part and dissenting in part:

I concur in the holding that we have jurisdiction to consider the appeal, but I respectfully dissent from the majority’s remand to the district court to consider possible abuse of the writ. The majority holds that inclusion of unexhausted claims in petitioner’s third amended petition may constitute abuse, even though Farmer has never had a determination on the merits of any of his habeas claims. In my view, the district court has skillfully negotiated the hairpin turns in prevailing habeas corpus jurisprudence over the past decade in order to bring Fanner to the point where he can bring all of his claims to resolution in one petition. I would affirm the district court’s order denying Nevada’s motion to dismiss for abuse of the writ, for two reasons.

I.

First, even assuming the majority is correct in holding that there can be an abuse of the writ pursuant to Rule 9(b) of the Federal Habeas Corpus Rules when there has never been a prior adjudication on the merits, this particular case is not one in which such a finding of abuse could be made. There is no doubt Farmer’s first two petitions containing unexhausted claims were properly…

98 F.3d 1548 96 Cal. Daily Op. Serv. 7885 , 96 Daily Journal D.A.R. 13,088 Robert Jeffrey FARMER, Petitioner-Appellee, v. E.K. McDANIEL; * Attorney General of the State of Nevada, Respondents-Appellants. No. 95-99016. United States Court of Appeals, Ninth Circuit. Argued and Submitted April 18, 1996. Decided Oct. 29, 1996. Robert E. Wieland, Deputy Attorney General, Carson City, NV, for respondents-appellants. Michael Pescetta, Assistant Federal Public Defender, Las Vegas, NV, for petitioner-appellee. Appeal from the United States District Court for the District of Nevada, Lloyd D. George, District Judge, Presiding. D.C. No. CV-S-93-0434-LDG. Before: SCHROEDER, RYMER and KLEINFELD, Circuit Judges. RYMER, Circuit Judge: 1 This appeal requires us to consider a novel, but narrow question: whether an amended third habeas corpus petition by a prisoner in state custody may be subject to dismissal for abuse of the writ even though prior petitions were dismissed for failure to exhaust and thus were not reviewed on the merits. 1 The district court thought not, but the State of Nevada wants the opportunity to argue that Robert Jeffrey Farmer has filed a series of petitions with new,…