Jamal Morton v. DIRECTOR VIRGIN ISLANDS BUREAU OF CORRECTIONS On Appeal from the District Court of…

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 23-1047
_____________
JAMAL MORTON,
Appellant
v.
DIRECTOR VIRGIN ISLANDS BUREAU OF
CORRECTIONS
_______________
On Appeal from the District Court
of the Virgin Islands
(D.C. No. 3-20-cv-00031)
District Judge: Honorable Robert A. Molloy
_______________
Argued December 13, 2023
Before: HARDIMAN, KRAUSE, and RENDELL,
Circuit Judges.
(Filed: August 5, 2024)

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Joseph A. DiRuzzo, III
Daniel M. Lader [ARGUED]
Margulis Gelfand DiRuzzo & Lambson
401 E Las Olas Boulevard
Suite 1400
Ft. Lauderdale, FL 33301
Counsel for Appellant
Ian S.A. Clement [ARGUED]
Office of Attorney General of Virgin Islands
Department of Justice
34-38 Kronprindsens Gade
GERS Complex, 2nd Floor
St. Thomas, VI 00802
Counsel for Appellee
_______________
OPINION OF THE COURT
_______________
KRAUSE, Circuit Judge.
In the normal course, federal courts do not entertain
habeas petitions before a prisoner exhausts his state court
remedies.1 But there comes a point when justice delayed
1 We use “state court remedies” and “territorial court
remedies” interchangeably, as U.S. law provides that, with
respect to the Virgin Islands, “[t]he relations between the
courts established by the Constitution or laws of the United
States and the courts established by local law with respect to
. . . the issuance of writs of habeas corpus . . . shall be governed

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becomes justice denied, so when inordinate delay has stymied
a petitioner’s state case, we will excuse the exhaustion
requirement unless the government can adequately justify the
holdup.
Here, Appellant Jamal Morton sought territorial habeas
relief after being convicted in Virgin Islands Superior Court.
Six years later and despite Morton’s myriad attempts to move
the litigation along, his petition sat dormant, so he turned to the
federal courts and filed a new habeas petition in the District of
the Virgin Islands. Because the District Court dismissed
Morton’s petition for failure to exhaust territorial court
remedies without first asking the Government to explain the
territorial court’s inordinate delay, we will vacate the Court’s
order of dismissal and remand for it to consider any proffered
justifications and proceed accordingly.
I. Factual and Procedural Background
A. Morton’s Conviction and Territorial Court
Proceedings
Morton was convicted in the Virgin Islands in 2012 of
second-degree murder and various firearm offenses and was
sentenced to fifty years in prison, with a mandatory minimum
of fifteen years. On direct appeal, the Virgin Islands Supreme
Court affirmed his conviction.
by the laws of the United States pertaining to the relations
between the courts of the United States . . . and the courts of
the several States in such matters and proceedings.” 48 U.S.C.
§ 1613.

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Morton then commenced the collateral review in the
Superior Court of the Virgin Islands that remains pending and
forms the backbone of this appeal. In his 2014 territorial
habeas petition, Morton raised twenty claims, including for
violations of his Fifth Amendment right against double
jeopardy and his Sixth Amendment right to effective assistance
of counsel. Receiving no answer from the Government,
Morton asked the Court to set a briefing schedule. But the
Court also did not respond, so in early 2015, Morton moved for
the entry of default judgment, explaining that the
Government’s response was past due and that he was therefore
entitled to relief. Over two weeks later, the Government filed
an out-of-time motion to dismiss Morton’s petition.
With that motion still pending, in early March 2015,
Morton filed his initial Rule 26 disclosures and a request for
production, and he and the Government stipulated that the
Government would withdraw its motion to dismiss. Also in
early March 2015, the Government filed a response to
Morton’s July 2014 petition and a motion to file that response
out of time, on the ground that previous counsel had erred but
that a new attorney would now represent the Government.
Later that month, and still lacking guidance from the Court,
Morton served the Government with his own document
discovery. The next month, Morton moved to strike the
affirmative defenses in the Government’s response to his
petition and sought judgment on the pleadings, asserting that
the Government’s response failed to admit or deny each of his
allegations. In May, Morton served his first set of
interrogatories on the Government. Three months later, in
August, the Government moved to “deny discovery,”
contending that Morton improperly served the interrogatories
without first seeking leave from the Court.

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Although Morton filed a timely response, no ruling was
forthcoming. Instead, months of silence passed. So again,
Morton took the initiative. In November 2015, Morton asked
the Court to hold a status conference “to address the timely
resolution of this case.” D. Ct. ECF No. 11-1, at 135. The
Court did not respond. Many months later, in September 2016,
he again sought a status conference, but again, his request was
met with silence.
Finally, in April 2017—nearly three years after Morton
filed his petition—the Superior Court scheduled a status
conference, which was held in July 2017. The Court’s record
of the proceeding indicates only that the Court said it would
issue a “Writ” and file a “Scheduling Order for the Traverse
and Return,” in addition to “an order on the respondents’
Motion for Discovery.” Id. at 163–64. Yet none of those
things happened. Instead, the case continued to lie dormant for
months that turned into years.
B. The Proceedings Below
Exasperated with the inaction of the territorial court,
Morton turned to the federal system. In April 2020, Morton
filed his federal habeas petition in the U.S. District Court of the
Virgin Islands, where he raised the same twenty claims as in
his territorial petition. As it turned out, however, the
Government never had occasion to respond because before it
was properly served, the District Court sua sponte dismissed
the petition without prejudice, holding that Morton had failed
to exhaust his territorial court remedies. It reasoned that,
regardless of the Government’s role in or the Superior Court’s
reasons for allowing the case to languish, Morton had

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“contributed to the delay” in the adjudication of his claims by
not moving to enforce the Superior Court’s “oral order”2 or
filing a writ of mandamus with the Virgin Islands Supreme
Court, and Morton’s failure to take those affirmative steps
rendered it “inappropriate” for a federal court “to take the
extraordinary step of deeming state court remedies exhausted.”
Morton v. Testamark, No. 20-cv-0031, 2022 WL 17669172, at
*8 (D.V.I. Dec. 14, 2022). This appeal followed.
II. Jurisdiction and Standard of Review
The Virgin Islands District Court had jurisdiction under
28 U.S.C. § 2254(a) and 48 U.S.C. § 1612(a). See Walker v.
Gov’t of the V.I., 230 F.3d 82, 86 (3d Cir. 2000). We have
jurisdiction under 28 U.S.C. §§ 1291 and 2253(a).3 See id. at
2 As the Superior Court indicated only an intent to issue
an order, but not the content, it is unclear what order could be
enforced.
3 The Government contends that we lack jurisdiction to
hear this case because the District Court’s dismissal of
Morton’s habeas petition is not an appealable “final decision”
or “final order” under 28 U.S.C. §§ 1291 and 2253. In its view,
because a dismissal without prejudice does not necessarily end
a petitioner’s habeas litigation but theoretically sends it back
to territorial court, such a dismissal does not “end[] the
litigation on the merits.” Hagan v. Rogers, 570 F.3d 146, 151
(3d Cir. 2009) (quoting Welch v. Folsom, 925 F.2d 666, 668
(3d Cir. 1991)).
The Government cites no cases that support this
proposition, and we reject it. This Court regularly treats such
dismissals as final and appealable, see, e.g., Crews v. Horn,

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89. Because the District Court dismissed the petition without
conducting an evidentiary hearing, we exercise plenary review.
McMullen v. Tennis, 562 F.3d 231, 236 (3d Cir. 2009).
III. Discussion
A. The Exhaustion Requirement
Usually, “a federal court may not entertain a petition for
a writ of habeas corpus unless the petitioner has first presented
each of his claims to the state’s highest tribunal.” Lee v.
Stickman, 357 F.3d 338, 341 (3d Cir. 2004); see also Rose v.
Lundy, 455 U.S. 509, 515–16 (1982). This exhaustion
requirement, which is codified at 28 U.S.C. § 2254(b)(1),
forbids the federal courts from granting a writ of habeas corpus
unless it appears that (1) the petitioner has “exhausted the
remedies available in the courts of the State,” (2) “there is an
absence of available State corrective process,” or (3)
“circumstances exist that render such process ineffective to
360 F.3d 146, 147, 149 (3d Cir. 2004); Lines v. Larkins, 208
F.3d 153, 155, 159 n.6 (3d Cir. 2000), as do all of our sister
circuits, see Lauderdale-El v. Ind. Parole Bd., 35 F.4th 572,
578–80 (7th Cir. 2022) (listing cases). And with good reason.
As Judge Easterbrook explains, although a dismissal “without
prejudice” sometimes means “there’s more to do in this court,”
it more typically means “you should be in some other tribunal.”
Carter v. Buesgen, 10 F.4th 715, 724 (7th Cir. 2021)
(Easterbrook, J., concurring). This latter statement is what a
district court means when it dismisses a habeas petition for
failure to exhaust state remedies, and thus, like a dismissal for
lack of venue, personal jurisdiction, or subject matter
jurisdiction, such a dismissal is final and appealable. Id.

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protect” the petitioner’s rights. The petitioner “carries the
burden of proving exhaustion of all available state remedies.”
Parker v. Kelchner, 429 F.3d 58, 62 (3d Cir. 2005) (quoting
Lambert v. Blackwell, 134 F.3d 506, 513 (3d Cir. 1997)).
This exhaustion requirement is not jurisdictional, but
rather “a matter of comity.” Lee, 357 F.3d at 341. Thus, when
“inexcusable or inordinate delay by the state in processing
claims for relief . . . has rendered the State remedy ineffective
to protect the rights of the petitioner, we have excused
exhaustion.” Wojtczak v. Fulcomer, 800 F.2d 353, 354 (3d Cir.
1986); see also Hankins v. Fulcomer, 941 F.2d 246, 250 (3d
Cir. 1991) (explaining that “the principle of comity weighs less
heavily” when a state court “has had ample opportunity to pass
upon [a] matter and has failed to sufficiently explain its . . .
delay”). But while inordinate delay is a threshold requirement
for excusing exhaustion, it “does not automatically excuse the
exhaustion requirement”; instead, it “shift[s] the burden to the
state to demonstrate why exhaustion should still be required.”
Lee, 357 F.3d at 341. That burden is “difficult to meet.” Story
v. Kindt, 26 F.3d 402, 405 (3d Cir. 1994).
We consider all relevant factors in evaluating whether
delay has been inordinate, but three are of particular
importance. The first is the length of delay. In the past, we
have held that delays as “short” as 33 months were so long that
they supported excusing exhaustion. See Wojtczak, 800 F.2d
at 354 (33 months); see also United States ex rel. Geisler v.
Walters, 510 F.2d 887, 891 (3d Cir. 1975) (40 months); United
States ex rel. Senk v. Brierly, 471 F.2d 657, 660 (3d Cir. 1973)
(44 months).

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Second, we consider “the degree of progress made in
state court.” Lee, 357 F.3d at 342. Ongoing progress may
counsel against excusing exhaustion, even when there has been
substantial delay. Compare, e.g., Cristin v. Brennan, 281 F.3d
404, 411 (3d Cir. 2002) (holding that a 27-month delay did not
render relief “effectively unavailable” where the state court
had held oral argument and scheduled an evidentiary hearing
over the months), with Story, 26 F.3d at 406 (excusing
exhaustion where the state court “neglected [the petitioner]’s
case for almost eight years” even though the court had taken
some action after it received notice of the federal petition).
And as a general matter, district courts are expected to “stay
their consideration of habeas petitions when previously stalled
state proceedings resume.” Cristin, 281 F.3d at 411; see also
Walker v. Vaughn, 53 F.3d 609, 615 (3d Cir. 1995) (“As a
matter of general practice, we assume that a district court
which has excused exhaustion but has not yet embarked upon
proceedings of substance will stay its hand once there is
reliable evidence that the state action has been reactivated.”).
Third, we consider whether “the petitioner himself is
responsible for the delay.” Hankins, 941 F.2d at 252. We will
not excuse exhaustion when, for example, it results from
petitioner’s “inability to cooperate with his lawyers.”
Wojtczak, 800 F.2d at 354–55. But while a petitioner must take
at least some initiative to push his case forward, he need not
file motion after motion in the face of enduring judicial inertia.
See, e.g., Story, 26 F.3d at 406 (excusing exhaustion although
petitioner did not alert the state court that it had not yet ruled
on his state petition); Hankins, 941 F.2d at 252 (excusing
exhaustion even though neither petitioner nor his attorney took
any action for three years of an eleven-year delay).

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All three factors bear on the question of whether a
petitioner experienced inordinate delay. If he did, the burden
“shift[s] . . . to the state to demonstrate why exhaustion should
still be required,” Lee, 357 F.3d at 341, and its explanation
must be persuasive; we will not allow a habeas petition to
linger indefinitely before a dilatory state court.
B. The Superior Court’s Delay in This Case
Morton recognizes that he did not exhaust his state court
remedies, either on direct appeal or collateral review, so the
only question we face is whether to excuse exhaustion on the
basis of inordinate delay.4 The District Court here declined to
do so, focusing almost exclusively on Morton’s failure to seek
mandamus in the territorial court and discounting the years of
delay he faced and his many efforts to move the litigation
forward. This was in error: As we explain below, Morton
satisfied his obligation to demonstrate inordinate delay, so the
District Court should have required the Virgin Islands to justify
his years-long wait. We will vacate and remand to give the
Government that opportunity.
In assessing whether Morton faced inordinate delay, we
first look to the extent of the delay. Here, the delay was severe.
By the time Morton sought federal relief in April 2020, almost
six years had elapsed since he first filed in territorial court, and
4 The District Court noted that Morton may have
exhausted one of his claims for violation of his Sixth
Amendment right to effective assistance of counsel on direct
appeal. Even so, we must dismiss “mixed petitions” that
contain both exhausted and unexhausted claims, so that would
not change our analysis. Rose, 455 U.S. at 510.

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the Superior Court had done nothing but hold a status
conference three years earlier. We have excused exhaustion
when confronted with shorter periods of inaction. See
Wojtczak, 800 F.2d at 354 (33 months); Geisler, 510 F.2d at
891 (40 months); Senk, 471 F.2d at 660 (44 months). As for
progress in the territorial court, over four years have elapsed
since Morton filed his federal petition, and seven since the
Superior Court last acted, with no indication that proceedings
will resume anytime soon. Taken together, these two factors—
extreme delay and lack of progress—strongly support a
determination of inordinate delay.
But was Morton himself “responsible for the delay”?
Hankins, 941 F.2d at 252. Not on this record. Morton took
reasonable steps to prosecute his case in the Virgin Islands.
After filing his habeas petition and hearing from neither the
Court nor the Government for months, he moved to establish a
briefing schedule. When he again received no response, he
followed up with a motion for default judgment. After the
Government belatedly responded in early 2015, and still
without word from the Court, Morton attempted to initiate the
discovery process, serving the Government with his own Rule
26 disclosures and a request for production of documents, in
addition to a first set of interrogatories and document
discovery. Morton also filed motions to strike the
Government’s affirmative defenses and for judgment on the
pleadings, to no avail. In November 2015, nearly one-and-a-
half years after filing his petition, Morton moved for a status
conference. Ten months later, having heard nothing, Morton
again moved for a status conference. Seven months after that
second request, in April 2017, the Court finally scheduled a
conference, and when that conference was ultimately held in
July—three years into the case—the Court merely promised

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future action on which it ultimately did not deliver. This
docket reflects that Morton rigorously pursued his case in the
Virgin Islands.
The District Court nevertheless determined that Morton
“contributed to the delay” by failing to seek mandamus from
the Virgin Islands Supreme Court.5 Morton, 2022 WL
17669172, at *8. But we have never held that seeking such a
“drastic” remedy, In re Elliot, 54 V.I. 423, 428 (2010) (per
curiam), is an absolute requirement, see Hankins, 941 F.2d at
251 (refusing to consider “whether it is necessary to pursue
mandamus” as a “pre-condition to pursuing federal habeas
corpus relief” because the “inordinate delay . . . clearly
warrant[ed] an exception to the exhaustion requirement”). But
see Coady v. Vaughn, 251 F.3d 480, 489 (3d Cir. 2001)
(declining to excuse exhaustion where a petitioner who had
never given state courts the chance to pass on his claims had
not resorted to state mandamus procedures). Other circuits to
confront the question have also not definitively concluded that
a petitioner’s failure to seek mandamus implicates him in a
state court’s delay. See Williams v. Perini, 557 F.2d 1221,
5 The District Court also observed that, under V.I.
Super. Ct. Habeas Corpus R. 2(a)(11), Morton could have filed
a request for a ruling with the Superior Court, which would
have prompted the clerk of court to notify the Presiding Judge
of the Superior Court of the delay. But the Virgin Islands
Supreme Court has held that a similar rule, V.I. Super. Ct.
R. 14, does not represent an “adequate alternate form of relief”
to remedy delay because the Presiding Judge “unquestionably
lacks the authority to suspend, remove, or otherwise discipline
one of his colleagues.” In re Fleming, 56 V.I. 460, 469 (2012)
(per curiam).

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1223 (6th Cir. 1977) (declining to excuse exhaustion when
petitioner had neither sought mandamus nor filed for habeas
corpus in the state’s highest court); id. at 1225 (Phillips, C.J.,
concurring) (“I do not construe the majority opinion to hold
that appellant must apply for a writ of mandamus in the State
courts as a part of his procedure for exhausting his State
remedies.”); United States ex rel. Johnson v. McGinnis, 734
F.2d 1193, 1200 (7th Cir. 1984) (requiring exhaustion of state
mandamus procedures, but only when petitioner could not
otherwise present his claims to a state court).
Ultimately, the question of whether a petitioner is
responsible for a state court’s delay does not hinge on whether
he follows a particular procedure, but whether he has made
reasonable efforts to push his litigation forward. Morton has
made such efforts. He has also spent a decade waiting for his
petition to be ruled upon, with no apparent progress in the past
seven years. His predicament can only be characterized as one
of inordinate delay, so before dismissing Morton’s petition, the
District Court should have obliged the Government to
“demonstrate why exhaustion should still be required.” Lee,
357 F.3d at 341.
C. Appropriate Remedy
But the District Court did not ask the Government for
that demonstration. Instead, it dismissed Morton’s petition
without ever giving the Virgin Islands a chance to justify the
Superior Court’s delay. We will therefore remand this case to
give the Government that opportunity.
On remand, the Government may explain why the
Superior Court’s delay does not warrant excusal of exhaustion.

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At oral argument, the Government suggested for the first time
that intervening events—two hurricanes and the COVID-19
pandemic—significantly disrupted the Superior Court’s
functioning. This explanation, if properly presented, might
suffice to justify inordinate delay. We note, however, that the
urgency of these disasters has ostensibly lessened, and the
Superior Court still has not acted on Morton’s petition. Any
justification that the Government provides must therefore also
account for the delay that has continued since Morton filed his
federal petition. And considering the exceptional delay at issue
here, the Government must point to something
“extraordinary.” See Codispoti v. Howard, 589 F.2d 135, 142
(3d Cir. 1978).
IV. Conclusion
Morton has waited ten years for a court to reach the
merits of his habeas petition. Such a delay erodes confidence
in the judiciary and its ability to dispense justice, and it is
unacceptable absent a compelling reason. We will therefore
vacate the District Court’s judgment and remand for
proceedings consistent with this opinion.

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