Marvin L. Carter v. Chris S. Buesgen

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 20-3140
MARVIN L. CARTER,
Petitioner-Appellant,
v.
CHRIS S. B UESGEN,
Respondent-Appellee.
____________________
Appeal from the United States District Court for the
Western District of Wisconsin.
No. 3:19-cv-00949 — James D. Peterson, Chief Judge.
____________________
A RGUED MAY 18, 2021 — D ECIDED A UGUST 18, 2021
____________________
Before E ASTERBROOK, B RENNAN, and SCUDDER , Circuit
Judges.
SCUDDER, Circuit Judge. Wisconsin inmate Marvin Carter
has waited four years and counting to challenge his 2017 sen-
tence on direct appeal in state court. Over these four years
Carter has weathered a ten-month transcript delay, three dif-
ferent public defenders, and fourteen extension requests by
counsel and the trial court itself. At no point during these four
years has a single court in Wisconsin ruled on the merits of

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2 No. 20-3140
Carter’s colorable challenge to his sentence. None of this is
Carter’s fault.
Carter responded to the delay by seeking relief in federal
court under 28 U.S.C. § 2254. Although recognizing the inor-
dinate delay Carter has endured in Wisconsin, the district
court concluded that Carter had failed to exhaust his state
court remedies and dismissed his petition without prejudice.
At the very least, the district court added, Carter needed to
lodge one final plea for relief with the state court before re-
turning to federal court.
Carter appeals from that dismissal. We confront two is-
sues: whether we have appellate jurisdiction to review the
district court’s dismissal order and, if so, whether the delay
experienced by Carter excuses him from the otherwise appli-
cable statutory exhaustion requirement. We answer both
questions in the affirmative, for what Carter has experi-
enced—and, by every indication, will continue to experi-
ence—in the Wisconsin trial and appellate courts is extreme
and tragic. The intractable delay shows that Wisconsin’s ap-
pellate process, at least as far as Carter is concerned, is inef-
fective to protect rights secured by the United States Consti-
tution. So we reverse and remand to allow the district court to
rule on the merits of Carter’s § 2254 petition without delay.
I
A
Everything began in 2016 when Wisconsin charged
Marvin Carter with possessing heroin, cocaine, and other nar-
cotics with intent to deliver and, separately, with possessing
a firearm as a convicted felon. Carter proceeded to trial in Mil-
waukee in 2017, but agreed midtrial to strike a deal with the

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No. 20-3140 3
state. In exchange for dismissal of the cocaine and narcotic
drugs charges, Carter pleaded guilty to the heroin and firearm
charges. As part of the deal, the state agreed to recommend a
six-year sentence.
But the prosecutor backtracked at sentencing, telling the
trial court that “in hindsight, I so wish we would have al-
lowed this to proceed through to the end of the trial and let
the jury make their verdict because then I would have had
four counts on the table today.” The prosecutor’s expression
of regret seemed to strike a chord, as the court sentenced
Carter to nine years’ imprisonment—three more than the par-
ties agreed to recommend in the plea agreement. The court
entered judgment in July 2017.
Carter then sought to appeal his sentence, contending not
only that the prosecutor breached the plea agreement at sen-
tencing, but also that the trial court imposed the nine-year
sentence based on inaccurate information—both in violation
of his rights under the Fourteenth Amendment’s Due Process
Clause. Carter’s first claim is akin to the one recognized in
Santobello v. New York, 404 U.S. 257 (1971), where the Supreme
Court held that a criminal defendant is entitled to relief—in
the form of resentencing or an opportunity to withdraw his
guilty plea—if the state commits a material breach of a plea
agreement in connection with the original sentencing. See id.
at 262–63.
As we have recognized in prior cases, the criminal appeal
process in Wisconsin is unusual. See Huusko v. Jenkins, 556
F.3d 633, 634–35 (7th Cir. 2009). The first avenue of relief avail-
able to a convicted prisoner is the so-called “postconviction
motion” filed under Wisconsin Statute § 974.02. See, e.g., Page
v. Frank, 343 F.3d 901, 905–06 (7th Cir. 2003) (describing in

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4 No. 20-3140
detail the Wisconsin statutory scheme); State ex rel. Rothering
v. McCaughtry, 556 N.W.2d 136, 137–38 (Wis. Ct. App. 1996).
The defendant must alert the trial court that a postconviction
motion is coming by filing, within twenty days of sentencing,
a notice of intent to pursue postconviction relief. See Wis. Stat.
§ 809.30(2)(b).
In practice, this notice should trigger a series of obligations
on the part of the clerk’s office—and, if the defendant requests
counsel, the public defender’s office—to prepare for the post-
conviction motion. Operating as intended, the process should
go like this: the clerk shares basic information about the case
with the public defender’s office, and that office, in turn, as-
signs a lawyer to request the record and to draft the postcon-
viction motion. See Wis. Stat. § 809.30(2). Each step comes
with a short and explicit statutory deadline, and the § 974.02
postconviction motion should be filed about five months after
the filing of the notice of intent. The motion, like the original
notice of intent, must be filed in the trial court. This require-
ment affords the trial court (and, indeed, the original trial
judge) an opportunity to consider any appellate challenge in
the first instance. An argument not raised in a § 974.02 post-
conviction motion is waived on appeal, save for two excep-
tions not relevant here. See Wis. Stat. § 974.02(2); State v.
Hayes, 481 N.W.2d 699, 700 (Wis. Ct. App. 1992).
The Wisconsin Court of Appeals plays an important role
in the postconviction motion process too, as any request for
an extension beyond these statutory deadlines must be filed
with and granted by that court. See Wis. Stat. § 809.82(2)(a).
This is so even though the trial court rules on the postconvic-
tion motion in the first instance.

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No. 20-3140 5
Our point with all of this is to say that Wisconsin’s post-
conviction review process under § 974.02 is itself complex and
likely unfamiliar and counterintuitive to many readers. See
Huusko, 556 F.3d at 634–35 (“Wisconsin combines some as-
pects of direct and collateral review.”). For our purposes,
though, what matters is that the § 974.02 postconviction mo-
tion operates as a prerequisite to accessing the state’s direct
appeal process. See Morales v. Boatwright, 580 F.3d 653, 656
(7th Cir. 2009); see also Page, 343 F.3d at 906 (“If an issue is
raised in the § 974.02 motion but relief is denied by the trial
court, the defendant then may appeal to the Court of Appeals
of Wisconsin.”). Down the road, after “the time for appeal or
postconviction remedy provided in § 974.02 has expired,” the
defendant may collaterally attack his sentence. Wis. Stat.
§ 974.06(1). Of course, if the state process does not result in
relief, the defendant may then seek collateral review in fed-
eral court under 28 U.S.C. § 2254.
Marvin Carter filed a notice of intent to pursue postcon-
viction relief with the trial court on July 25, 2017—five days
after sentencing. In line with the Wisconsin statute, the public
defender’s office promptly assigned him counsel. So far, so
good.
But stagnation soon followed. The clerk and court reporter
took ten months to locate and share the trial transcripts that
Carter’s counsel requested—a step that should have been
completed within 60 days. See Wis. Stat. § 809.30(2)(g).
Things only got worse from there. On the day of the dead-
line to file the § 974.02 postconviction motion, Carter’s coun-
sel sought more time. He explained that his heavy caseload
prevented him from meeting with Carter or reviewing the
case materials. So too did Carter’s counsel file a separate

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6 No. 20-3140
motion asking the court to retroactively extend the time to re-
quest certain transcripts, as some slipped through the cracks
during the initial request process. The Wisconsin Court of Ap-
peals granted both motions in September 2018. By then, over
one year had passed since Carter’s July 2017 conviction and
sentence.
With the benefit of hindsight, we now know that the delay
for Carter was just beginning. Carter’s counsel followed his
first request to extend the deadline to file the postconviction
motion with a second. And a third. And a fourth. This pattern
continued for months, with Carter’s counsel filing a new ex-
tension request on each day the prior request was due to ex-
pire. By late 2019—more than two years after Carter’s July
2017 conviction and sentence—counsel had filed seven re-
quests to extend the motion deadline. The Wisconsin Court of
Appeals granted each motion in rote fashion.
B
Trapped by his counsel’s recurring extension requests and
what he saw as the complicity of the Wisconsin courts in the
ongoing delay, Carter turned to federal court. In November
2019 he invoked 28 U.S.C. § 2254 and filed a pro se petition
for postconviction relief in the Western District of Wisconsin,
raising the same two sentencing challenges he had tried to
present to the state trial court.
Section 2254 provides that relief “shall not be granted” un-
less the petitioner has exhausted the remedies available in
state court. 28 U.S.C. § 2254(b)(1)(A). The statute qualifies that
rule, however, with exceptions. The petitioner need not ex-
haust if there is “an absence of available State corrective pro-
cess” or “circumstances exist that render such process

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No. 20-3140 7
ineffective to protect the rights of the applicant.” Id.
§ 2254(b)(1)(B)(i)–(ii).
Carter acknowledged that he did not exhaust state court
remedies. But he was quick to explain to the district court that
he had tried to do so but found himself stuck by the endless
extensions sought by his counsel and granted by the Wiscon-
sin Court of Appeals. Upon receiving Carter’s petition, the
district court directed the parties to brief whether Carter
should be excused from further efforts to exhaust under the
exceptions Congress supplied in § 2254(b)(1)(B)(i)–(ii).
Nearly another year passed—with no forward progress
and indeed no movement of any kind in the Wisconsin
courts—before the district court issued its September 28, 2020
order dismissing Carter’s petition for failure to exhaust. In no
uncertain terms, the district court found the delay entrenched
and extraordinary:
The delay in Carter’s postconviction or appel-
late process is inordinate. It has been more than
three years after his judgment of conviction, and
his case has gone nowhere. From the docket of
Carter’s circuit court proceedings, it appears
that some of that time is attributable to a delay
in the production of transcripts. But even after
that issue was resolved, Carter’s appointed ap-
pellate counsel has received ten extensions of
time to file a notice of appeal or postconviction
motion. The case has languished even since
Carter filed this habeas petition.
Carter v. Richardson, No. 19-cv-949-jdp, 2020 WL 8613978, at *1
(W.D. Wis. Sept. 28, 2020) (citations omitted).

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8 No. 20-3140
From there, however, the district court directed Carter to
give the Wisconsin courts a final chance to act. The district
court questioned whether “the state courts are aware that
[Carter] disapproves of his counsel’s repeated requests for ex-
tension of time.” On that reasoning, the court dismissed
Carter’s petition “without prejudice,” directing the clerk of
court to send a copy of its order to Carter’s state counsel as
well as to the Wisconsin trial and appellate courts. But the dis-
trict court recognized that reasonable jurists could debate the
propriety of the dismissal and therefore granted a certificate
of appealability.
From the day Carter filed his § 2254 petition to the day the
district court entered its dismissal order, the Wisconsin Court
of Appeals extended the deadline for counsel to file a § 974.02
postconviction motion five more times. By our tally, then,
Carter’s counsel filed twelve consecutive extension requests,
collectively pushing the deadline to file the motion to Novem-
ber 24, 2020. And, as best we can tell, not once has the Wiscon-
sin Court of Appeals—or any other Wisconsin court for that
matter—recognized that Carter’s case has been stalled for
over four years.
C
There is little to report by way of progress in state court
over the last nine months. As promised, the district court sent
a copy of its September 28, 2020 order to the trial court, the
Wisconsin Court of Appeals, and Carter’s counsel. Perhaps
stirred by the district court’s order, counsel filed Carter’s post-
conviction motion with the trial court on the November 24,
2020 deadline.

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No. 20-3140 9
But the good news for Carter ends there. After filing the
postconviction motion, Carter’s public defender withdrew
from the case—as did the next assigned lawyer. We have no
reason to think that Carter shoulders any fault for these shuf-
fles of counsel. He is now represented in the postconviction
process by a third public defender as he continues to await a
decision from the trial court on the motion he filed last year.
And there is no way to know when Carter might expect that
decision. Although the trial court must issue an order on a
postconviction motion “within 60 days” of the conclusion of
briefing, see Wis. Stat. § 809.30(2)(i), the trial court itself has
requested, and the Wisconsin Court of Appeals has granted,
two extensions of that deadline to date. And on top of that,
the Wisconsin Court of Appeals on its own accord issued a
third extension of time for the trial court. The latest dead-
line—October 11, 2021—will arrive more than four years after
Carter’s July 2017 conviction and sentence.
During oral argument and in briefing, Carter emphasized
that time is of the essence: if the trial court had adopted the
sentence that the state agreed to recommend in his plea agree-
ment, he would be due for release in just six months, on Feb-
ruary 10, 2022.
II
We begin as we must with appellate jurisdiction. The state
insists that the district court’s dismissal order lacks the final-
ity required by 28 U.S.C. § 1291. Finality is absent, the state
urges, because the district court’s dismissal was “without
prejudice” and therefore, by its terms, contemplates that
Carter may return to federal court if the state proceedings do
not budge—leaving nothing for us to review today. We can-
not agree.

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10 No. 20-3140
We have jurisdiction over appeals from all final decisions
of the district courts. See 28 U.S.C. § 1291. As a general and
highly imperfect rule of thumb, a dismissal with prejudice is
final and thus reviewable, and a dismissal without prejudice
is not. See Kaba v. Stepp, 458 F.3d 678, 680 (7th Cir. 2006). The
thought behind this distinction is that a dismissal without
prejudice affords the plaintiff an opportunity to fix the short-
coming that led to the dismissal before returning to federal
court for another try. See Maddox v. Love, 655 F.3d 709, 716 (7th
Cir. 2011).
But we have been careful to underscore that “the label
‘without prejudice’ does not always prevent a disposition
from being a de facto final judgment.” Gleason v. Jansen, 888
F.3d 847, 852 (7th Cir. 2018); see also Hill v. Potter, 352 F.3d
1142, 1144 (7th Cir. 2003). Indeed, we often encounter “situa-
tions in which an order nominally dismissing a case without
prejudice is in fact final because an amendment would be un-
availing.” Montano v. City of Chicago, 375 F.3d 593, 597 (7th Cir.
2004); see also Maddox, 655 F.3d at 716. When it would be fu-
tile for the plaintiff or petitioner to attempt to resolve the issue
that caused the district court to dismiss the case, then, a seem-
ingly nonfinal order is “functionally final” and thus appeala-
ble under § 1291. Gacho v. Butler, 792 F.3d 732, 736 (7th Cir.
2015).
We see finality in the futility of the district court’s directing
Carter—who has experienced nothing but delay and inaction
for four years in the Wisconsin trial court—to try a final time
to bring his appeal to life. Remember what the district court
first found: that “[t]he delay in Carter’s postconviction or ap-
pellate process is inordinate,” as “[i]t has been more than
three years after his judgment of conviction, and his case has

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No. 20-3140 11
gone nowhere.” Carter, 2020 WL 8613978, at *1. Carter’s case,
the district court likewise emphasized, “has languished even
since [he] filed this habeas petition.” Id.
These findings reflect nothing other than a conclusion that
it would be futile for Carter to continue his attempts to ex-
haust in state court. Put another way, the district court recog-
nized that Wisconsin’s postconviction review process has
failed Carter as a practical matter. There is no indication that
Wisconsin will take up his postconviction motion at any time
in the foreseeable future. What all of this means is that Carter
has no more remedies to exhaust, so whatever lack-of-exhaus-
tion defect the district court recognized is functionally impos-
sible to repair. See Strong v. David, 297 F.3d 646, 648 (7th Cir.
2002). By directing Carter to return to state court for one last
try, the district court invited Carter to attempt a feat guaran-
teed to fail. In these circumstances, the district court’s order is
functionally final, and we have appellate jurisdiction to re-
view the district court’s dismissal order under § 1291.
As a descriptive matter, the state is correct that the district
court, in entering the dismissal without prejudice, contem-
plated that Carter “may refile his habeas petition” in the event
that the Wisconsin case “doesn’t budge.” Carter, 2020 WL
8613978, at *2. But that observation (or perhaps prediction)
alone does not resolve whether the district court’s judgment
is final within the meaning of § 1291. “Often it is possible that
a dismissed case will resume in one form or another, espe-
cially if the dismissal is based on a jurisdictional or procedural
defect” and “[y]et in countless cases a dismissal for failure to
exhaust state judicial remedies … has been appealed as a final
judgment.” See Hill, 352 F.3d at 1145. Rather, we judge finality
by considering the whole of the district court’s order and

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12 No. 20-3140
asking whether “the district court has finished with the case.”
Id. at 1144.
Though we recognize that state court remedies exist in
theory in Wisconsin and should be available, the last four
years have demonstrated that those remedies are, at least for
Carter, inaccessible. The district court makes all of this plain
in its order. Its subsequent instruction that Carter give the
Wisconsin courts one more try is at odds with the substance
of its reasoning and insufficient to deprive the judgment of
finality.
We have held that futility reveals finality in related con-
texts too. The Prison Litigation Reform Act, for instance, man-
dates that an inmate exhaust administrative remedies before
bringing suit to challenge prison conditions in federal court.
See 42 U.S.C. § 1997e(a). Because the Act’s exhaustion require-
ment is ironclad, see Ross v. Blake, 136 S. Ct. 1850, 1856 (2016),
district courts often dismiss prisoners’ § 1983 claims without
prejudice for failure to exhaust. Time and again, we have ex-
ercised appellate jurisdiction to review those dismissal orders
on the ground that the prisoner missed the limitations period
or is no longer incarcerated and is thus unable to exhaust ad-
ministrative remedies. See, e.g., Hernandez v. Dart, 814 F.3d
836, 841 (7th Cir. 2016) (exercising jurisdiction because the re-
spective deadlines for administrative remedies “have long
since passed” so “it would be impossible at this point for [the
plaintiff] to exhaust his administrative remedies and thereaf-
ter amend his complaint”); Kaba, 458 F.3d at 680 (exercising
jurisdiction because the plaintiff “was released from prison,
and therefore the dismissal without prejudice for failure to ex-
haust is effectively a final order because no amendment could

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No. 20-3140 13
resolve the problem”); Dixon v. Page, 291 F.3d 485, 488 (7th Cir.
2002) (same).
Much the same reasoning applies here. After finding that
Carter’s case “has gone nowhere” and has “languished” year
after year, the district court directed Carter to give the state
process one final shot. No doubt the district court issued this
instruction out of respect for principles of federalism and
comity. But the undisputed record of delay in state court
leaves us unpersuaded that any future attempts by Carter to
exhaust will be anything other than a fool’s errand—entirely
futile. See Maddox, 655 F.3d at 716 (explaining where “there is
nothing to indicate that a plaintiff or petitioner can fix” his
exhaustion error, a “dismissal without prejudice does not pre-
clude our appellate jurisdiction”) (cleaned up).
Our prior decisions in Moore v. Mote, 368 F.3d 754 (7th Cir.
2004), and Gacho v. Butler, 792 F.3d 732 (7th Cir. 2015)—two
cases in which we concluded we lacked appellate jurisdiction
over § 2254 exhaustion dismissals—are not to the contrary.
For its part, Moore reinforces the proposition that, in the ordi-
nary course, exhaustion is required under § 2254(b)(1) and,
absent special circumstances, an order dismissing a petition
for a clear failure to exhaust will lack the finality requisite to
authorize appellate review. See 368 F.3d at 755 (explaining
that no “special circumstances” justified Moore’s attempt to
jump the line to federal court because he could “easily return
to state court, conclude his pending action, and then submit
the state court decision … to the district court”). But Carter’s
case is far from ordinary. He cannot “easily” return to state
court, where his case remains in an indefinite holding pattern.
We see no reason past will not be prologue in the Wisconsin
courts for Carter.

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14 No. 20-3140
Nor are we convinced that Gacho requires us to dismiss
Carter’s appeal for lack of appellate jurisdiction. Like Marvin
Carter, Robert Gacho experienced massive delays in state
court—though the reasons behind the many years Gacho
spent in state proceedings were “not entirely clear.” 792 F.3d
at 737. Gacho, too, sought relief in federal court under § 2254
and hit a roadblock when the district court dismissed his pe-
tition without prejudice for failure to exhaust. But the district
court expressly found that Gacho’s “[p]roceedings in the state
court … are currently moving at a reasonable rate and there
is no inordinate delay that must be remedied.” 792 F.3d at 735
(alterations in original). On appeal, we echoed the district
court’s finding that Gacho’s case “has crawled along slowly
but steadily and appears to be close to final resolution.” Id. at
737. Seeing no futility in allowing the state court’s proceed-
ings to reach finality, we relied on Moore and dismissed the
appeal for lack of appellate jurisdiction, emphasizing that
Gacho could return to federal court if he did not receive relief
in the Illinois courts.
The situation here is different. Carter’s case is at a stand-
still before the Wisconsin trial court and shows no sign of go-
ing anywhere anytime soon. This reality is captured by the
district court’s express findings that Carter’s case has gone no-
where and that the delay is inordinate. It is precisely these
findings that distinguish the situation here from Moore and
Gacho and that solidify our appellate jurisdiction.
III
Assured of our jurisdiction, we proceed to the merits of
the district court’s decision to dismiss Carter’s petition. The
district court interpreted 28 U.S.C. § 2254(b) and concluded
that Carter must attempt to exhaust state court remedies at

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No. 20-3140 15
least one more time before seeking federal relief. Not so in our
view.
Recall that § 2254(b)(1) requires, as a prerequisite to fed-
eral relief, that a petitioner “exhaust[ ] the remedies available
in the courts of the State.” 28 U.S.C. § 2254(b)(1)(A). But Con-
gress took care to ensure that the exhaustion requirement—
for all of its practical virtue—would not leave state prisoners
without a remedy. To that end, the exceptions found in
§ 2254(b)(1)(B) permit federal review where state court reme-
dies are unavailable or ineffective. And of course, “[e]xcep-
tions and exemptions are no less part of Congress’s work than
its rules and standards—and all are worthy of a court’s re-
spect.” BP P.L.C. v. Mayor and City Council of Baltimore, 141 S.
Ct. 1532, 1539 (2021).
Carter contends that state court remedies in Wisconsin are
ineffective to protect his rights. We agree, for the facts in this
case afford no other reasonable conclusion. As the district
court correctly observed, the delay in Carter’s case is extreme.
More than four years have passed since Carter’s conviction
and sentence. The length of the delay should have sounded
an alarm bell within the Wisconsin courts, the public de-
fender’s office, and even the Attorney General’s office. See
Dozie v. Cady, 430 F.2d 637, 638 (7th Cir. 1970) (seventeen-
month delay is inordinate); Lowe v. Duckworth, 663 F.2d 42, 43
(7th Cir. 1981) (three-and-one-half-year delay is inordinate).
Everyone doing nothing is no longer an option.
Carter has demonstrated what Congress required to ex-
cuse exhaustion of state court remedies—Wisconsin’s post-
conviction review process has, for all practical purposes,
proved itself unavailable to him or, at the very least, “ineffec-
tive to protect [his] rights.” 28 U.S.C. § 2254(b)(1)(B)(i)–(ii).

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16 No. 20-3140
Carter has yet to move beyond the trial court and toward his
direct appeal. Not a single court has reviewed his sentencing
challenge at any level of the state judiciary. No substantive
motion has been granted or denied in these four years, and no
administrative procedure seems to be in place to detect and
end the severe stagnation. His colorable Santobello claim has
fallen upon deaf ears, and we are left with the impression that
for Carter, justice delayed has become justice denied.
Carter’s case is stuck in park. In these circumstances, then,
Carter is excused from exhausting and may bring the claims
alleged in his state motion for postconviction relief directly to
federal court. See Jackson v. Duckworth, 112 F.3d 878, 881 (7th
Cir. 1997).
What makes all of this so tragic is that the state itself is
responsible for the delays. The clerk’s office failed to transmit
the necessary record documents for ten months. Carter’s
(first) public defender filed, and the Wisconsin Court of Ap-
peals granted, twelve extension requests. The trial court itself
filed two extension requests, and the Wisconsin Court of Ap-
peals added a third extension of time too. Each entry indicates
the request is granted, followed by a new, extended date. The
record does not show any court rules or internal operating
procedures from which it can be determined who decides
these requests—does a single judge hear the motion, or a mo-
tions panel of judges? Is it court administrators or lower-level
court employees? Rather than dismiss this case as an outlier,
Wisconsin’s courts need to fix the systemic deficiency that has
resulted in how Carter’s case has been treated, and become
more transparent about how discretion is exercised, for the
benefit of the parties, their counsel, other courts, and the pub-
lic.

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No. 20-3140 17
It seems the only person without blame for the delay is
Carter himself. For this reason, we were alarmed to see the
state point its finger at Carter and, in its briefing, go so far as
to say that he is at fault because he “complained to no one
about the delays until after he came into federal court.” It is
not clear to us what else Marvin Carter could have done or,
for that matter, why the state is so intent on avoiding respon-
sibility for its own failings. And we were shocked anew by the
state’s presentation at oral argument. When asked whether
the Attorney General had filed anything with the Wisconsin
Supreme Court alerting it to the serious problems in the lower
courts, counsel insisted, “We don’t have a problem.” That
view is indefensible: a miscarriage of justice occurs when a
convicted prisoner must wait four years for appellate review.
We VACATE the judgment and REMAND to the district
court to commence review of Carter’s § 2254 petition without
delay.

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18 No. 20-3140
E ASTERBROOK, Circuit Judge, concurring. I join parts I and
III of the court’s opinion. I agree with the outcome of part II,
but it does not go far enough. Moore v. Mote, 368 F.3d 754
(7th Cir. 2004), and Gacho v. Butler, 792 F.3d 732 (7th Cir.
2015), should be overruled rather than distinguished.
Moore and Gacho are among decisions that take the
phrase “without prejudice” as a talisman meaning “no ap-
pellate jurisdiction.” My colleagues observe that other deci-
sions look in another direction. One example is litigation
dismissed for failure to exhaust administrative remedies
(slip op. 12–13). Often “without prejudice” means “there’s
more to do in this court”; that’s so, for example, when a
complaint is dismissed without prejudice but could be
amended, so the suit itself remains pending. Then the deci-
sion is not final. But more often “without prejudice” means
“you should be in some other tribunal.” Then the decision in
the district court is final and appealable, and all “without
prejudice” means is that the law of preclusion (res judicata)
will not block the next step in a different court.
Consider a dismissal for lack of venue, personal jurisdic-
tion, or subject-matter jurisdiction. Such a dismissal always
is without prejudice, because the federal court has not de-
cided the merits. The litigants may be able to go to a state
court, or an administrative tribunal, or an arbitrator, or even
file a new federal suit after some condition has been satis-
fied. But the current suit is over, and we routinely hear ap-
peals in which the loser argues that it is unnecessary to go
elsewhere and that the current suit should continue. This is
so obvious that appellate jurisdiction is mentioned only rare-
ly. But when appellate jurisdiction is contested, this sort of
decision is held to be final. See, e.g., Green Tree Financial

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No. 20-3140 19
Corp. v. Randolph, 531 U.S. 79 (2000) (order dismissing suit
without prejudice and directing the parties to arbitrate is fi-
nal and appealable).
Appellate jurisdiction is supposed to be determined us-
ing simple, bright-line rules. See, e.g., Budinich v. Becton Dick-
inson & Co., 486 U.S. 196, 201–03 (1988); Ray Haluch Gravel Co.
v. Central Pension Fund, 571 U.S. 177, 185–86 (2014). A deci-
sion is final when the district court has disposed of all pend-
ing issues, and the next step (if there is one) must occur
elsewhere. See, e.g., Catlin v. United States, 324 U.S. 229, 233
(1945); Hill v. Potter, 352 F.3d 1142, 1144 (7th Cir. 2003) (“The
test for finality is not whether the suit is dismissed with
prejudice or without prejudice, on the merits or on a jurisdic-
tional ground or on a procedural ground such as failure to
exhaust administrative remedies … . The test is whether the
district court has finished with the case.”). See also 15A
Charles Alan Wright, Arthur R. Miller & Edward H. Cooper,
Federal Practice & Procedure §3914.6 (2d ed. 1992 & Supp.
2021). Other kinds of decisions may be final—if, say, they
reject a claim of a “right not to be tried”—but a decision clos-
ing the case always is final.
Here is a simple rule: when “without prejudice” means “I
have not resolved the merits but this case is over nonethe-
less,” then the decision is final; when it means “the problem
can be fixed so that litigation may continue in this court,”
then the decision is not final. In our case the phrase “without
prejudice” means “go litigate some more in Wisconsin.” The
judge contemplated that an adverse decision by the state’s
judiciary might justify more federal litigation, but this case is
over, so Carter can appeal.

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20 No. 20-3140
Moore and Gacho should not be allowed to mess up juris-
dictional analysis, sending bench and bar on hunts for novel
ways to appeal from dismissals without prejudice. The law-
yers in this case devoted tens if not hundreds of hours, and
reams of paper, to analyzing the collateral-order doctrine
and the treatment of stays in Moses H. Cone Memorial Hospital
v. Mercury Construction Corp., 460 U.S. 1 (1983), when the on-
ly important question is whether the judgment is final under
traditional principles. Or consider my colleagues’ statement
(slip op. 11) that the district court’s order is “functionally fi-
nal” because further litigation in Wisconsin is “guaranteed
to fail.” That should not matter—nor should it be necessary
to insult the state judiciary (by predicting that it will reject a
meritorious request) in order to see that a federal judgment
is appealable. What makes this judgment final is the fact that
the district judge told Carter to litigate in a different court.
Finality depends on what the district judge did, not on what
that other court may do tomorrow.

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