In re Bowen

Decision Date20 January 2006
Docket NumberNo. 04-1286.,04-1286.
Citation436 F.3d 699
PartiesIn re: Edward O'Neal BOWEN, Movant-Petitioner.
CourtU.S. Court of Appeals — Sixth Circuit

ARGUED: Andrew N. Wise, Federal Public Defenders Office, Detroit, Michigan, for Petitioner.

ON BRIEF: Andrew N. Wise, Federal Public Defenders Office, Detroit, Michigan, for Petitioner. Laura Graves Moody, Office of the Attorney General, Lansing, Michigan, for Respondent.

Before: DAUGHTREY and COLE, Circuit Judges; HEYBURN, Chief District Judge.*

R. GUY COLE, Circuit Judge.

Petitioner Edward O'Neal Bowen timely filed a petition for the issuance of a writ of habeas corpus in 1999 after exhausting his state remedies on the majority of his claims. Following consideration on the merits, his petition was denied first by the district court, and then by this court. Bowen then returned to state court to pursue post-conviction relief based on, inter alia, ineffective assistance of trial and appellate counsel, which were not exhausted at the time of his original habeas petition. He subsequently filed another petition for habeas relief on those two issues in federal district court in 2004, after our decision in Austin v. Mitchell, 200 F.3d 391 (6th Cir.2000), but before our decision in Cowherd v. Million, 380 F.3d 909 (6th Cir.2004) (en banc). Finding that Bowen's petition was either second or successive, the district court transferred the petition to this court pursuant to 28 U.S.C. § 1631. For the reasons that follow, we deny Bowen's motion to file a petition for writ of habeas corpus in the district court as unnecessary, because his petition is not "second or successive," and transfer his petition to the district court.

I.

On June 28, 1989, Bowen allegedly committed armed robbery and assault with intent to murder, for which he was arrested in 1991. His trial resulted in a hung jury. After entering a plea of no contest to the assault charge on September 6, 1994, Bowen was sentenced to one year in the Genessee County Jail, to be followed by four years probation.

In February 1996, two bench warrants were issued alleging that Bowen had violated his probation. At a hearing held on October 30, 1996, it was determined that Bowen violated the terms of his probation. As a result, his probation was revoked, and he was sentenced to 22-35 years in prison. The length of the sentence imposed for the violation of probation appears to take into account Bowen's previous conviction of assault with intent to kill.

Bowen appealed to the Michigan Court of Appeals, which affirmed the revocation of his probation and his sentence. The Michigan Supreme Court denied Bowen's direct appeal, and his conviction became final on March 30, 1998. Bowen filed a petition for the issuance of a writ of habeas corpus in the Eastern District of Michigan on March 10, 1999, alleging deprivation of due process based on: (1) insufficient opportunity to cross examine witnesses regarding the validity of the urine samples admitted into evidence at the hearing on revocation of probation, (2) the lack of reasonably diligent notice of the elements alleged to violate his probation, and (3) the lack of evidence in the revocation hearing supporting an inference that a violation had occurred and the lack of support for the court's factual determinations. The district court denied Bowen's application, and this court thereafter denied Bowen's application for a certificate of appealability.

Unsuccessful in federal district court, Bowen filed a motion for relief from judgment in the state trial court, alleging that: (1) counsel at the revocation hearing was ineffective, (2) the trial judge used Bowen's right not to testify against him, (3) the revocation hearing was fundamentally unfair, and (4) appellate counsel was ineffective. The trial court denied relief, and both the Michigan Court of Appeals and Supreme Court denied leave to appeal.

Bowen then filed another petition for writ of habeas corpus, this time with the Western District of Michigan, alleging, inter alia, ineffective assistance of counsel. Finding Bowen's petition to be either second or successive, the district court filed an Order of Transfer to the Sixth Circuit, pursuant to 28 U.S.C. § 1631.1

II.

In order to determine whether Bowen's petition is second or successive, we must determine whether Bowen's application is controlled by our decision in Austin v. Mitchell, 200 F.3d 391 (6th Cir.2000), overruled by Cowherd v. Million, 380 F.3d 909 (6th Cir.2004) (en banc).

A. Austin and Cowherd

The Anti-Terrorism and Effective Death Penalty Act (AEDPA) of 1996, 28 U.S.C. § 2244, dramatically altered the power of the federal courts to issue writs of habeas corpus. Specifically relevant here, AEDPA imposes two distinct requirements on petitioners seeking writs of habeas corpus before federal courts: (1) a petition must be filed within one year of the finality of the underlying conviction; and (2) petitioners may not bring claims in a numerically second petition that could have been brought in an earlier petition. 28 U.S.C. § 2244. Furthermore, petitioners must fully exhaust all of their claims in the state courts before seeking federal review. Rose v. Lundy, 455 U.S. 509, 510, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982).

In order for petitioners to file petitions that are both timely and have been fully exhausted, the period during which a petitioner's claims are before the state courts is tolled:

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.

28 U.S.C. § 2244(d)(2). As long as petitioners are seeking review in a state court, the one-year statute of limitations does not run. Thus, § 2244(d)(2) allows petitioners to both completely exhaust all habeas claims before the state courts, and file habeas claims within one year of the date upon which a conviction becomes final.

In Austin v. Mitchell, 200 F.3d 391 (6th Cir.2000), we held that AEDPA's statute of limitation is not tolled by state post-conviction proceedings that do not involve the federally cognizable claims later made in a habeas petition. In that case, we considered a petitioner's federal habeas petition. Id. at 392. The petitioner's conviction became final in 1992. Before filing his federal habeas claim in 1998, the petitioner pursued state post-conviction relief on state procedural grounds and on the basis that his counsel was constitutionally ineffective. Id. at 392-93. The state court dismissed his ineffective assistance of counsel claim, finding that it did not have jurisdiction to consider the claim because it was filed in the wrong state court. Id. at 393. Thus, his state procedural claim was the only claim pending in state post-conviction proceedings. Upon federal review, we held that the petitioner's state procedural claim could not toll the statute of limitation under 28 U.S.C. § 2244(d)(2), because it was not a federally cognizable claim. Id. at 394.

We further held that the petitioner's application for state post-conviction relief on his claim of ineffective assistance of counsel did not toll the AEDPA statute of limitation. Although there was some question as to whether that claim was "properly filed" before the state court, id. at 395, we did not reach that question. Instead, we relied on the fact that the petitioner did not bring his ineffective assistance of counsel claim before the federal habeas court. Id. Answering whether the state post-conviction proceeding must concern at least one of the claims being made in the federal habeas petition in order to toll the statute of limitation, we held:

Just as such state review must concern a federally cognizable claim to toll the AEDPA period of limitation, so also the rule should be that such review must concern a federally cognizable claim that is being made in the instant habeas petition.

Id. Because the purpose of tolling is to allow the state the first opportunity to resolve a habeas petitioner's federal claims, we concluded that the purpose of tolling is not implicated unless the post-conviction proceedings involve at least one of the claims actually being made in the federal habeas petition.

The government argues that while Austin was the law in this circuit until 2004, Bowen should have remained in state court in order to exhaust his ineffective assistance of counsel claim, and then filed all of his federal claim in one petition. It argues that, under Austin, Bowen could have remained in state court to exhaust his ineffective assistance claim, because the exhaustion of any one federal ground would have tolled AEDPA's statute of limitation as it applied to all other federal habeas claims. The Government relies on the holding in Austin:

[A] state petition for post-conviction or other collateral review that does not address one or more of the grounds of the federal habeas petition in question is not a review "with respect to the pertinent judgment or claim" within the meaning of 28 U.S.C. § 2244(d)(2), therefore does not toll the one-year AEDPA statute of limitation.

Resp. Brief at 7 (citing Austin, 200 F.3d at 395) (emphasis in Resp. Brief). However, as Bowen points out, the question of whether a federally cognizable claim in state post-conviction proceedings will toll other claims, already made final, was neither before, nor decided by, the Austin court. It does not follow from the holding of Austin that any one federally cognizable claim will toll the statute of limitation for all of a petitioner's habeas claims.

Other circuit courts immediately rejected our analysis in Austin. See Ford v. Moore, 296 F.3d 1035, 1040 (11th Cir.2002); Sweger v. Chesney, 294 F.3d 506, 517 (3d Cir.2002) ("Reading this language to require that the state post-conviction proceeding raise the claims...

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