Cowherd v. Million

• Decision Date: 19 August 2004
• Docket Number: No. 02-5499.,02-5499.
• Citation: 380 F.3d 909
• Parties: Johnny COWHERD, Petitioner-Appellant, v. George MILLION, Warden, Respondent-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

380 F.3d 909

Johnny COWHERD, Petitioner-Appellant, v. George MILLION, Warden, Respondent-Appellee.

No. 02-5499.

United States Court of Appeals, Sixth Circuit.

Argued: March 10, 2004.

Decided and Filed: August 19, 2004.

Appeal from the United States District Court for the Eastern District of Kentucky, Henry R. Wilhoit, Jr., J Christopher J. pagan (argued and briefed), Repper, Powers & Pagan, Middleton, OH, for Petitioner-Appellant.

David A. Smith (argued and briefed), Asst. Attorney General, Office of the Attorney General, Frankfort, KY, for Respondent-Appellee.

Before: BOGGS, Chief Judge; and MARTIN, SILER, BATCHELDER, DAUGHTREY, MOORE, COLE, CLAY, GILMAN, GIBBONS, ROGERS, SUTTON, and COOK, Circuit Judges.

OPINION

BOGGS, Chief Judge.

Petitioner Johnny Cowherd, a state prisoner in Kentucky, appeals from the denial of his petition for a writ of habeas corpus. The district court, relying on Austin v. Mitchell, 200 F.3d 391 (6th Cir.1999), found that Cowherd's claim had been time-barred under 28 U.S.C. § 2244(d)(1), which establishes a one-year statute of limitations for filing habeas petitions. The question before this court is whether one of Cowherd's state post-conviction proceedings tolled that statute of limitations pursuant to 28 U.S.C. § 2244(d)(2). This question depends entirely on whether this court chooses to adhere to Austin, which held that post-conviction proceedings toll the statute of limitations only if they include a federal claim. Because we now find that Austin was wrongly decided, we reverse the district court.

I

The relevant facts are straightforward. Cowherd was convicted in 1993 on two counts of first-degree rape, four counts of first-degree sodomy, and first-degree criminal trespass. The trial court judge sentenced Cowherd to 104 years of imprisonment, and the conviction was affirmed on direct appeal. Cowherd proceeded to file four state post-conviction motions over the next seven years. The first of these proceedings became final prior to the effective date of the Antiterrorism and Effective Death Penalty Act (AEDPA), April 24, 1996. Thus, the one-year statute of limitations under § 2244(d)(1) for filing a habeas petition began running on that date. Searcy v. Carter, 246 F.3d 515, 517 (6th Cir.2001). Cowherd filed his second post-conviction motion on January 10, 1997, and this motion was ultimately dismissed on December 9, 1998. He also filed post-conviction motions on March 10, 1999, and September 12, 2000. Although there is some question about when these actions were ultimately dismissed, both sides concede that the second post-conviction proceeding is dispositive.

Cowherd filed a petition for a writ of habeas corpus on June 11, 2001. He raised four claims for relief: ineffective assistance of trial counsel, an Eighth Amendment claim, a Double Jeopardy Clause claim, and ineffective assistance of appellate counsel. After the habeas petition was filed, the respondent ("Warden") moved to dismiss the petition as time-barred. Specifically, the Warden argued that Cowherd had not filed his petition within the one-year period, and that because the second post-conviction motion did not raise any federal claim, the second post-conviction proceeding did not toll the statute of limitations. In support of this argument, the Warden correctly cited Austin, which stated that post-conviction motions toll the statute of limitations only if they include a federal claim. Austin, 200 F.3d at 394. Cowherd responded that Austin was wrongly decided and pointed out that the Ninth Circuit had rejected Austin in Tillema v. Long, 253 F.3d 494 (9th Cir.2001). Alternatively, Cowherd argued that, even if Austin controlled, Cowherd presented a claim in his second post-conviction motion that could be construed as a federal claim.

This question was initially referred to a magistrate judge, who rejected Cowherd's arguments and concluded, in a report and recommendation, that the petition was time-barred. In subsequent objections to this report, Cowherd did not specifically raise the claim that Austin had been wrongly decided, but he did attempt to incorporate his prior arguments into his objections. He wrote, "[p]etitioner reasserts the arguments presented in his Memorandum in Opposition to Respondent's Motion to Dismiss Petition as Time-Barred, and incorporates that document in reference in its entirety."

The district court accepted the magistrate judge's report and dismissed the petition on March 22, 2002. On May 14, 2002, however, the district court issued a certificate of appealability ("COA"). The court explained that Cowherd had met the requirements of Slack v. McDaniel, 529 U.S. 473, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000), because reasonable jurists could find it debatable whether his petition was time-barred (in light of the other circuits' rejection of Austin).¹ The COA order also noted that, although the court had not considered the constitutional claims in the habeas petition, "jurists of reason may find it debatable as to whether the Petitioner has set forth a valid constitutional claim."

Cowherd's subsequent appeal was dismissed without argument by this court pursuant to Fed. R.App. P. 34(a) on September 10, 2003. In that order, the panel upheld the district court's finding and dismissed Cowherd's arguments that Austin was wrongly decided, adding that it had no power to overturn a published opinion of a previous panel. It also dismissed Cowherd's claims that the second post-conviction motion presented a federal claim. The panel's decision was subsequently vacated when this court granted the motion for rehearing en banc.

II

Before reaching the question of Austin's continued viability, we should briefly address threshold arguments raised by the Warden that, if correct, would prevent us from reaching the question regarding Austin. First, the Warden claims that if this court upholds Austin, it cannot consider whether Cowherd's second post-conviction motion included a federal claim because this issue was not included in the COA. The Warden, however, reads the COA too narrowly. The COA certified the issue of whether Cowherd's claims were properly dismissed because they had been time-barred. Therefore, all arguments relevant to this question, including whether the post-conviction motion raised a federal claim, are properly before this court.

Second, the Warden argues that Cowherd waived the argument that Austin was decided incorrectly because he failed to raise the argument in his objections to the magistrate judge's report. Generally, the failure to file specific objections to a magistrate's report constitutes a waiver of those objections. Miller v. Currie, 50 F.3d 373, 380 (6th Cir.1995). We note that the district court did state, in its order granting the COA, that "[w]hile the Petitioner did not raise this argument before the Court in its objections to the Report and Recommendation, the Petitioner is nonetheless correct in his statement that Tillema reached a conclusion contrary to the holding in Austin." This statement is not entirely accurate. As explained above, Cowherd noted explicitly in his objections that he was incorporating arguments raised in his prior motion in opposition to the motion to dismiss. And there is no dispute that he did in fact raise this argument in his earlier motion. Thus, the question is whether Cowherd should have been allowed to incorporate older arguments into his objections to the magistrate judge's report.

This court has allowed parties to incorporate prior arguments into their objections to a magistrate judge's report, but we disfavor such practices. In this particular case, because Cowherd's arguments before both the district court and this court are clear, we will allow Cowherd to rely on earlier arguments that he incorporated into his objections.

The requirement for specific objections to a magistrate judge's report is not jurisdictional and a failure to comply may be excused in the interest of justice. In the present case, unlike in [a prior case], the objections directed the district judge's attention to specific issues decided by the magistrate contrary to Kelly's position. The district judge apparently had no problem in focusing on the specific areas of disagreement between the parties. Thus, the objections served the purposes of the requirement that objections be specific.

Kelly v. Withrow, 25 F.3d 363, 366 (6th Cir.1994). But see Neuman v. Rivers, 125 F.3d 315, 323 (6th Cir.1997) (rejecting reference to prior arguments because "reference was not sufficiently specific to satisfy the standards announced by this court in ... Kelly"). We warn, however, that parties who fail to make specific objections do so at their own peril. Having disposed of the preliminary issues, we now turn to Austin and its interpretation of 28 U.S.C. § 2244(d)(2).

III

The text of § 2244(d)(2) reads:

(2) The time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward any period of limitation under this subsection (emphasis added).

In Austin, this court interpreted § 2244(d)(2) to mean that, in order to toll the statute of limitations, the state post-conviction petition "must raise a federal constitutional issue." Austin, 200 F.3d at 394. The court's interpretation relied heavily on policy and its reading of the Supreme Court's discussion of the exhaustion requirement in 28 U.S.C. § 2254(c) in O'Sullivan v. Boerckel, 526 U.S. 838, 844, 119 S.Ct. 1728, 144 L.Ed.2d 1 (1999).

[T]he federal habeas exhaustion doctrine is not meant to apply to purely state law or state constitutional claims, such as technical defects in indictments. This rule is sound for another reason, as well. Federal courts do not necessarily know the intricacies of state law and the possible claims the latter may make available to a petitioner; it would, therefore, be inappropriate...