Lamone Lauderdale-El v. Indiana Parole Board

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 21-1242
LAMONE LAUDERDALE-EL,
Petitioner-Appellant,
v.
I NDIANA PAROLE BOARD,
Respondent-Appellee.
____________________
Appeal from the United States District Court for the
Southern District of Indiana, Terre Haute Division.
No. 2:20-cv-00444-JPH-DLP — James Patrick Hanlon, Judge.
____________________
S UBMITTED DECEMBER 22, 2021* — DECIDED M AY 23, 2022
____________________
Before K ANNE, R OVNER , and HAMILTON , Circuit Judges.
* We have agreed to decide this case without oral argument because
the briefs and record adequately present the facts and legal arguments,
and oral argument would not significantly aid the court. Fed. R. App. P.
34(a)(2)(C). We have also substituted the Indiana Parole Board as the
proper respondent because petitioner Lauderdale-El is currently on parole
under the board’s supervision.

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2 No. 21-1242
HAMILTON , Circuit Judge. While imprisoned in Indiana, La-
mone Lauderdale-El petitioned for a writ of habeas corpus
challenging the loss of good-time credits resulting from a
prison disciplinary conviction. His petition asserts primarily
that prison officials violated his due process rights in apply-
ing an Indiana Department of Correction policy rescinding
previously restored good-time credits. The district court con-
cluded that petitioner could challenge the restoration policy
in state court, so it dismissed the case without prejudice for
failure to exhaust state-court remedies. See 28 U.S.C.
§ 2254(b)(1)(A). Petitioner Lauderdale-El has appealed. We
agree with the district court that petitioner failed to exhaust
available remedies, but first we must address two issues af-
fecting our jurisdiction on appeal. In doing so, we follow a
long line of cases holding that dismissal of a habeas corpus
petition without prejudice for failure to exhaust state-court
remedies is a final and appealable judgment, but we also need
to overrule contrary holdings in two of our cases, Gacho v. But-
ler, 792 F.3d 732 (7th Cir. 2015), and Moore v. Mote, 368 F.3d
754 (7th Cir. 2004).
I. Appellate Jurisdiction
The two questions affecting our jurisdiction to decide this
appeal are whether petitioner’s release from prison during
this appeal makes the case moot and whether a dismissal of a
habeas corpus petition without prejudice for failure to ex-
haust available state remedies is an appealable final judg-
ment.
A. Mootness
Respondent contends that petitioner’s release from prison
requires dismissal of the case as moot. We disagree because

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No. 21-1242 3
petitioner is still on parole. A case becomes moot when a court
can no longer grant any redress for the alleged wrong.
Eichwedel v. Curry, 700 F.3d 275, 278 (7th Cir. 2012). A chal-
lenge to a petitioner’s custody becomes moot when custody
ends and no collateral consequences remain. Id. Because pa-
role is a form of custody, a case that could shorten a former
prisoner’s term of parole is not moot. White v. Indiana Pa-
role Board, 266 F.3d 759, 762–63 (7th Cir. 2001).
This case is nearly identical to White, in which we held that
a court could order the parole board to revise the end date of
the petitioner’s parole based on when he should have been
released from prison with proper application of good-time
credit. Under Indiana law, petitioner Lauderdale-El’s parole
will last two years or until his sentence expires, whichever is
shorter. Ind. Code § 35-50-6-1(b). Currently, those times are
the same; petitioner was released in March 2021 and is sched-
uled to remain on parole until March 2023. Petitioner con-
tends that if his good-time credits had not been wrongly re-
voked, his earliest possible release date would have been at
least three months sooner, in December 2020. If that were cor-
rect, his parole should end two years from that earlier release
date. If petitioner prevailed in this case, the district court
could order the parole board to release him from parole in
December 2022, removing a legally meaningful form of cus-
tody. See White, 266 F.3d at 762–63. Three fewer months of pa-
role would be meaningful relief, so the case is not moot.
B. A Final Judgment
The second jurisdictional issue is whether the district
court’s judgment dismissing the petition without prejudice
for failure to exhaust state-court remedies is a final, appeala-
ble judgment under 28 U.S.C. § 1291. The district court’s

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4 No. 21-1242
dismissal of this petition for failure to exhaust state-court
remedies certainly seems final as a practical matter: the dis-
trict court is done with the case. Respondent argues, however,
that the dismissal is not final because the petition was dis-
missed without prejudice, so petitioner can file a new petition
asserting the same claim after exhausting state remedies (as-
suming he does not win relief from the state courts).
Respondent’s position finds direct support in two cases,
Gacho v. Butler, 792 F.3d 732 (7th Cir. 2015), and Moore v. Mote,
368 F.3d 754 (7th Cir. 2004). Both dismissed for lack of appel-
late jurisdiction appeals from district court decisions dismiss-
ing habeas corpus petitions without prejudice for failure to
exhaust state remedies. A closer look at the issue shows, how-
ever, that Gacho and Moore are outliers. They are out of step
with our practice in other habeas appeals, the practice of other
circuits, and more general principles of appellate jurisdiction.
As Judge 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 ap-
pellate jurisdiction.
To explain how the issue arises, the phrase “without prej-
udice” makes jurisdictional antennae twitch for appellate
judges and other mavens of appellate jurisdiction. In a civil
case, a dismissal “without prejudice” can often signal that the
district court is not actually done with the case but is instead
leaving an opportunity for a plaintiff or petitioner to cure a
problem and to continue or revive the case in the district
court. The most obvious example: a district court dismisses a
complaint for failure to state a claim but allows the plaintiff to
amend the complaint. In most cases, such an order is not a

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No. 21-1242 5
final judgment even if the district court enters a Rule 58 judg-
ment announcing dismissal without prejudice. See, e.g., Fur-
nace v. Board of Trustees of Southern Illinois University, 218 F.3d
666, 669 (7th Cir. 2000) (recognizing that an order dismissing
a complaint without prejudice generally “is not appealable
because the plaintiff may file an amended complaint” (cita-
tion omitted)); see also Reed v. Columbia St. Mary’s Hospital, 782
F.3d 331, 336 (7th Cir. 2015) (“We have emphasized that liti-
gants may and should rely on the specific wording of a Rule
58 judgment to determine whether a judgment is final and ap-
pealable.”).
Another scenario shows why appellate courts try to be
vigilant about their jurisdiction when a dismissal says “with-
out prejudice.” Suppose a district court resolves the more im-
portant claim in a civil case on a motion to dismiss or for sum-
mary judgment, but leaves a less important claim pending for
trial. Parties will sometimes try to manufacture an appealable
final judgment by asking the district court to dismiss the re-
maining claim “without prejudice” and to enter a supposedly
final judgment dismissing the more important claim with
prejudice and the less important one without prejudice. We
have held repeatedly that this tactic does not work to create
an appealable final judgment. E.g., West v. Louisville Gas &
Electric Co., 920 F.3d 499, 504–05 (7th Cir. 2019) (collecting
cases); Hill v. Potter, 352 F.3d 1142, 1145 (7th Cir. 2003) (“What
is true is that a litigant is not permitted to obtain an immediate
appeal of an interlocutory order by the facile expedient of dis-
missing one of his claims without prejudice so that he can con-
tinue with the case after the appeal is decided.”) (collecting
more cases from this and other circuits).

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6 No. 21-1242
Other kinds of dismissals without prejudice, however, sig-
nal clearly that the district court has finished with the case but
is leaving open the possibility that the parties may pursue the
dispute in another forum. Such judgments, typically based on
a lack of subject-matter or personal jurisdiction or improper
venue, are final for purposes of appeal. The rule in such cases
is so well established that we rarely even comment on appel-
late jurisdiction. E.g., Deb v. SIRVA, Inc., 832 F.3d 800, 803–04
(7th Cir. 2016) (vacating dismissal without prejudice for im-
proper venue); Milwaukee Concrete Studios, Ltd. v. Fjeld Manu-
facturing Co., 8 F.3d 441, 448 (7th Cir. 1993) (affirming dismis-
sal without prejudice for improper venue). Dismissals for lack
of subject-matter jurisdiction are necessarily without preju-
dice, Page v. Democratic Nat’l Committee, 2 F.4th 630, 639 (7th
Cir. 2021), and we routinely exercise jurisdiction over appeals
from such dismissals. E.g., Lewert v. P.F. Chang’s China Bistro,
Inc., 819 F.3d 963, 966 (7th Cir. 2016). The same is true of dis-
missals for lack of personal jurisdiction. E.g., Rogers v. City of
Hobart, 996 F.3d 812, 817 (7th Cir. 2021).
Similarly, the Prison Litigation Reform Act includes a rig-
orous requirement for exhaustion of administrative remedies,
42 U.S.C. § 1997e(a), and we have exercised jurisdiction over
dismissals of such cases for failure to exhaust. E.g., Hernandez
v. Dart, 814 F.3d 836, 841 (7th Cir. 2016) (dismissal without
prejudice for failure to exhaust was final as practical matter
and was reversed on merits of that defense); Maddox v. Love,
655 F.3d 709, 716 (7th Cir. 2011); accord, e.g., Ray v. Kertes, 285
F.3d 287, 291 (3d Cir. 2002).
Returning from general principles and practices to the
specific realm of habeas corpus and dismissals for failure to
exhaust state-court remedies, the majority and concurring

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No. 21-1242 7
opinions in Carter lay out the issue. 10 F.4th at 720–22 (major-
ity); id. at 724–25 (Easterbrook, J., concurring in part). In Carter
the petitioner’s efforts to obtain state-court review of his con-
viction had been delayed for years through no fault of his
own. The district court had dismissed Carter’s federal habeas
corpus petition without prejudice for failure to exhaust state
remedies. We found that the dismissal was final and appeala-
ble, vacated on the exhaustion defense, and remanded to the
district court. The majority distinguished Gacho and Moore on
the ground that Carter had shown that further efforts in the
state court would be futile. The majority held, in effect, that
because Carter had shown error on the merits of the exhaus-
tion issue, we had jurisdiction over his appeal.
Judge Easterbrook agreed with the result and portions of
the majority opinion, but proposed a simple rule:
[W]hen “without prejudice” means “I have not
resolved the merits but this case is over none-
theless,” then the decision is final; when it
means “the problem can be fixed so that litiga-
tion may continue in this court,” then the deci-
sion is not final. In our case the phrase “without
prejudice” means “go litigate some more in
Wisconsin.” The judge contemplated that an ad-
verse decision by the state’s judiciary might jus-
tify more federal litigation, but this case is over,
so Carter can appeal.
10 F.4th at 725 (Easterbrook, J., concurring in part). Judge
Easterbrook urged that Gacho and Moore be overruled rather
than distinguished, noting the awkwardness of having appel-
late jurisdiction depend on the merits of the underlying ap-
peal, the confusion engendered by Gacho and Moore, and the

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8 No. 21-1242
conflict between their rule and predominant approaches to
appellate jurisdiction.
We agree that it is time to overrule the jurisdictional hold-
ings of Gacho and Moore. In addition to the reasons laid out by
Judge Easterbrook in his Carter concurrence, we offer a prac-
tical reason and the weight of contrary authority from both
this court and other circuits.1
The practical reason becomes evident if we merely ask,
“What if the district court was wrong in dismissing for failure
to exhaust?” The defense of failure to exhaust state-court rem-
edies can present difficult questions in kaleidoscopic varia-
tions on state-court procedures. District court decisions on the
subject are not invariably correct. But if Gacho and Moore are
correct and a dismissal without prejudice is not final and ap-
pealable, the petitioner faces a dead end. If the state courts are
truly not open to him, for any reason, the district court’s error
becomes simply unreviewable. Even a blatantly unconstitu-
tional conviction or sentence could not be tested at all under
§ 2254.
On the other hand, if dismissal without prejudice is
deemed final and appealable, but only if the dismissal was
wrong, then appellate jurisdiction depends on the merits of the
appeal. That turns the logic of the appeal upside down. It also
invites a reminder about Ockham’s Razor. If the appellate
court has jurisdiction to consider the merits of the appeal for
the purpose of determining appellate jurisdiction, it is hard to
1 Because this opinion overrules two precedents of this court, we have
circulated this opinion to all active circuit judges pursuant to Circuit Rule
40(e). No active judge voted to hear this case en banc.

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No. 21-1242 9
see what the extra layer of appellate jurisdiction analysis
adds, other than confusion and extra work.
As for the weight of precedent in this and other circuits,
we routinely treat dismissals of habeas corpus petitions for
failure to exhaust state-court remedies as final and appeala-
ble, often without even mentioning the issue of appellate ju-
risdiction. The most compelling cases are those reversing such
dismissals as erroneous. See Harrison v. McBride, 151 F.3d
1032, 1998 WL 516792 (7th Cir. 1998) (summarily reversing er-
roneous dismissal for failure to exhaust); Gregory-Bey v.
Hanks, 91 F.3d 146, 1996 WL 394011 (7th Cir. 1996) (reversing
erroneous dismissal without prejudice for failure to exhaust);
Handley v. Welborn, 9 F.3d 112, 1993 WL 393127 (7th Cir. 1993)
(reversing erroneous dismissal for failure to exhaust state-
court remedies on one claim); United States ex rel. Gray v. Di-
rector, Department of Corrections, 721 F.2d 586 (7th Cir. 1983)
(reversing erroneous dismissal for failure to exhaust and or-
dering that petition be granted); United States ex rel. Burbank v.
Warden, Illinois State Penitentiary, 535 F.2d 361, 363 (7th Cir.
1976) (noting earlier appeal in case had reversed dismissal for
failure to exhaust); United States ex rel. Williams v. Brantley, 502
F.2d 1383 (7th Cir. 1974) (reversing dismissal for failure to ex-
haust); see also Copus v. City of Edgerton, 96 F.3d 1038 (7th Cir.
1996) (reversing dismissal for failure to exhaust after district
court had erred by converting § 1983 case to habeas case). If
Gacho and Moore were correct on appellate jurisdiction, then
all of these cases would have to be deemed wrongly decided.
Also highly relevant, and far more numerous, are our rou-
tine affirmances on the merits of district court dismissals of
habeas corpus petitions for failure to exhaust. E.g., Monegain
v. Carlton, 576 F. App’x 598 (7th Cir. 2014); Dupree v. Jones, 281

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10 No. 21-1242
F. App’x 559 (7th Cir. 2008); Reid v. Sternes, 59 F. App’x 880
(7th Cir. 2003); Sceifers v. Trigg, 46 F.3d 701 (7th Cir. 1995);
Wickstrom v. Schardt, 798 F.2d 268 (7th Cir. 1986); Williams v.
Duckworth, 724 F.2d 1439 (7th Cir. 1984) (district court erred
in dismissing for failure to exhaust, but dismissal affirmed on
the basis of waiver); United States ex rel. Stewart v. Ragen, 231
F.2d 312 (7th Cir. 1956) (district court denied petition for fail-
ure to exhaust; appeal dismissed on that ground). Again, if
Gacho and Moore were correct, all such cases should have been
dismissed for lack of appellate jurisdiction rather than de-
cided on the merits.
Other circuits follow the course that we have, apart from
Gacho and Moore, routinely treating dismissals of habeas cor-
pus petitions for failure to exhaust as final, appealable judg-
ments. See Nowaczyk v. Warden, New Hampshire State Prison,
299 F.3d 69 (1st Cir. 2002) (reversing dismissal without preju-
dice where state court claim was still pending); Layne v. Gun-
ter, 559 F.2d 850 (1st Cir. 1977) (affirming dismissal without
prejudice for failure to exhaust); Wilbur v. Maine, 421 F.2d 1327
(1st Cir. 1970) (reversing dismissal for failure to exhaust and
ordering relief on merits); Roberites v. Colly, 546 F. App’x 17
(2d Cir. 2013) (affirming in part dismissal without prejudice
for failure to exhaust); Gerber v. Varano, 512 F. App’x 131 (3d
Cir. 2013) (vacating dismissal without prejudice for failure to
exhaust); Wright v. Cuyler, 624 F.2d 455 (3d Cir. 1980) (where
district court had erroneously treated prisoner’s challenge to
conditions of confinement as habeas petition and dismissed
without prejudice for failure to exhaust, appellate court exer-
cised jurisdiction, converted action to § 1983 action, and re-
versed and remanded); Watson v. Lassiter, No. 21-6351, 2022
WL 822168 (4th Cir. 2022) (denying certificate of appealability
where habeas petition was dismissed without prejudice for

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No. 21-1242 11
failure to exhaust); Gilstrap v. Godwin, 517 F.2d 52 (4th Cir.
1975) (affirming dismissal for failure to exhaust); Mendoza v.
Thaler, 485 F. App’x 721 (5th Cir. 2012) (vacating dismissal
without prejudice for failure to exhaust); Scott v. Johnson, 227
F.3d 260 (5th Cir. 2000) (reviewing dismissal of petition with-
out prejudice for failure to exhaust, but ordering dismissal
with prejudice as time-barred); Whitehead v. Johnson, 157 F.3d
384 (5th Cir. 1998) (vacating in part dismissal without preju-
dice for failure to exhaust); Resendez v. McKaskle, 722 F.2d 227
(5th Cir. 1984) (reversing dismissal for failure to exhaust);
Manning v. Macauley, No. 20-1567, 2020 WL 7346021 (6th Cir.
2020) (denying certificate of appealability where habeas peti-
tion was dismissed without prejudice for failure to exhaust);
Coleman v. Gidley, No. 17-1130, 2017 WL 7370569 (6th Cir.
2017) (denying certificate of appealability where habeas peti-
tion was dismissed without prejudice for failure to exhaust);
Williams v. Marshall, 770 F.2d 168, 1985 WL 13497 (6th Cir.
1985) (vacating dismissal for failure to exhaust); Allen v. Perini,
424 F.2d 134 (6th Cir. 1970) (reversing dismissal for failure to
exhaust); Kolocotronis v. Holcomb, 925 F.2d 278 (8th Cir. 1991)
(reversing dismissal without prejudice for failure to exhaust,
and specifically rejecting challenge to finality for appellate ju-
risdiction); Williams v. Lockhart, 893 F.2d 191 (8th Cir. 1990)
(reversing dismissal for failure to exhaust); Farmer v. McDan-
iel, 98 F.3d 1548, 1552–53 (9th Cir. 1996) (dismissal without
prejudice for failure to exhaust was final judgment that state
could appeal), abrogated on other grounds by Slack v. McDan-
iel, 529 U.S. 473 (2000); Jackson v. Borg, 992 F.2d 1219, 1993 WL
140594 (9th Cir. 1993) (vacating dismissal for failure to ex-
haust); Harmon v. Ryan, 959 F.2d 1457 (9th Cir. 1992) (vacating
sua sponte dismissal for failure to exhaust); Gray v. Gray, 645
F. App’x 624 (10th Cir. 2016) (dismissal in part of some claims

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12 No. 21-1242
without prejudice for failure to exhaust was final judgment
that could be appealed); Lamar v. Zavaras, 430 F. App’x 718
(10th Cir. 2011) (denying certificate of appealability where ha-
beas petition was dismissed without prejudice for failure to
exhaust); Doshier v. Oklahoma, 67 F. App’x 499 (10th Cir. 2003)
(denying certificate of appealability where habeas petition
was dismissed without prejudice for failure to exhaust); Clau-
dio v. Secretary, Florida Department of Corrections, 578 F. App’x
797 (11th Cir. 2014) (vacating sua sponte dismissal without
prejudice for failure to exhaust); Hafez v. Frazier, 440 F. App’x
751 (11th Cir. 2011) (vacating dismissal for failure to exhaust);
Henry v. Department of Corrections, 197 F.3d 1361 (11th Cir.
1999) (vacating dismissal for failure to exhaust); Thomas v.
Georgia State Board of Pardons & Paroles, 881 F.2d 1032 (11th Cir.
1989) (reversing in part dismissal for failure to exhaust where
district court had erroneously converted § 1983 action to ha-
beas petition); Davis v. Dugger, 829 F.2d 1513, 1521 (11th Cir.
1987) (in relevant part, reversing dismissal for failure to ex-
haust); Streater v. Jackson, 691 F.2d 1026 (D.C. Cir. 1982) (va-
cating dismissal of habeas petition for failure to exhaust).2
This long string-cite is just a sample. “[I]n countless cases
a dismissal for failure to exhaust state judicial remedies (for
2 We ordinarily would not cite non-precedential orders for such pur-
poses, but in this area of the law, the proportion of non-precedential or-
ders is high. The many orders add evidence to the view that Gacho and
Moore’s approach to appellate jurisdiction is contrary to the overwhelming
weight of decisions in the federal courts of appeals, including routine non-
precedential decisions. One contrary case appears to be a recent non-prec-
edential order from the Tenth Circuit, which followed Gacho and Moore to
dismiss an appeal from a dismissal without prejudice for failure to exhaust
state-court remedies. St. George v. Roark, No. 21-1391, 2022 WL 1132368
(10th Cir. 2022).

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No. 21-1242 13
example, in a habeas corpus case) or administrative remedies
(for example, in a prisoner civil rights suit) has been appealed
as a final judgment.” Hill, 352 F.3d at 1145; see also id. at 1144
(“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 when exhaustion is not a ju-
risdictional requirement. The test is whether the district court
has finished with the case.”). The Federal Reporters, Federal
Appendix, and on-line databases are full of hundreds if not
thousands of appeals challenging dismissals of habeas peti-
tions for failure to exhaust state-court remedies. If Gacho and
Moore were correct, virtually all of those hundreds or thou-
sands of appeals should have been dismissed for lack of ap-
pellate jurisdiction, and the many erroneous dismissals for
failure to exhaust and occasional erroneous conversions of
civil rights cases into habeas petitions would have defied ap-
pellate review.
For these reasons, we hold that the dismissal of Lauder-
dale-El’s habeas corpus petition without prejudice for failure
to exhaust state-court remedies is a final, appealable judg-
ment. We have jurisdiction over this appeal. We overrule
Gacho and Moore on this issue of appellate jurisdiction.3
3 Gacho cited a few cases in a footnote to try to show that Moore was
“not an outlier.” 792 F.3d at 736 n.2. The only one involving failure to ex-
haust state-court remedies was Stanley v. Chappell, 764 F.3d 990 (9th Cir.
2014), but in that case, the district court had stayed and held in abeyance
a habeas petition pending exhaustion of state remedies. That ruling
showed that the district court contemplated further proceedings, meaning
that the case was not over in the district court.

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14 No. 21-1242
II. Failure to Exhaust State Remedies
We now turn to whether state-court remedies are available
for Lauderdale-El that he failed to exhaust. The parties agree
that he exhausted administrative remedies but did not pursue
relief in state court.
Indiana courts ordinarily do not have jurisdiction to con-
sider prison disciplinary cases, so prisoners must exhaust
only administrative remedies before filing a federal habeas
petition. Harris v. Duckworth, 909 F.2d 1057, 1058 (7th Cir.
1990); Blanck v. Indiana Department of Correction, 829 N.E.2d
505, 507–08 (Ind. 2005). Indiana courts have, however, heard
other cases involving good-time credits—including chal-
lenges to the restoration policy at issue here. See Young v. In-
diana Department of Correction, 22 N.E.3d 716, 718–19 (Ind.
App. 2014) (rejecting challenge to restoration policy); see also
Young v. State, 888 N.E.2d 1255, 1256–57 (Ind. 2008) (holding
that claims for educational credit time may be pursued in
post-conviction proceedings but affirming dismissal of peti-
tion on other grounds). We agree with the district court that
these precedents authorize state-court review of the decision
that petitioner challenges here.
If we had doubts on the question, they would be quieted
by the views of the Indiana Attorney General, who tells us
that state courts would hear Lauderdale-El’s claim. These are
not the words of just any litigant. They are the words of the
official responsible for responding to every such claim made
in the State of Indiana. We take the office’s position to mean
that if Lauderdale-El’s claim or a similar one is brought in
state court, the office will not challenge the court’s jurisdiction
to hear the claim. Accordingly, we agree with the district

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No. 21-1242 15
court that Lauderdale-El failed to exhaust available state rem-
edies before filing his habeas petition.
To sum up, we hold that the dismissal of Lauderdale-El’s
habeas corpus petition without prejudice for failure to ex-
haust state remedies is a final, appealable judgment, and we
overrule the contrary jurisdictional holdings of Gacho and
Moore. The appeal also is not moot. We also find, however,
that Lauderdale-El could have pursued his good-time credit
restoration claim in state court, so the judgment dismissing
his petition without prejudice is AFFIRMED.

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