Johnson v. Bauman

Decision Date22 February 2022
Docket NumberNo. 20-2181,20-2181
Citation27 F.4th 384
Parties Andrew Dean JOHNSON, Petitioner-Appellant, v. Catherine S. BAUMAN, Warden, Respondent-Appellee.
CourtU.S. Court of Appeals — Sixth Circuit

ON BRIEF: David L. Moffitt, LAW OFFICES OF DAVID L. MOFFITT & ASSOCIATES, PLLC, Bingham Farms, Michigan, for Appellant. Scott R. Shimkus, OFFICE OF THE MICHIGAN ATTORNEY GENERAL, Lansing, Michigan, for Appellee.

Before: GIBBONS, READLER, and MURPHY, Circuit Judges.

READLER, J., delivered the opinion of the court in which MURPHY, J., joined in full, and GIBBONS, J., joined in the judgment. GIBBONS, J. (pg. 397–98), delivered a separate opinion concurring in the judgment.

CHAD A. READLER, Circuit Judge.

Andrew Johnson, a Michigan prisoner, filed a petition for a writ of habeas corpus in federal district court. In his petition, Johnson alleged that his plea and sentencing proceedings in state trial court violated the federal Constitution. Pending before that same state trial court, however, is a postconviction motion for relief, one that raises the same issues Johnson asks the federal courts to resolve in a habeas posture. The district court dismissed Johnson's petition due to his failure to exhaust the remedies available to him in state court. We now affirm.


Andrew Johnson pleaded no contest in state court to three state criminal offenses: one count of delivering 50 to 449 grams of cocaine, one count of delivering less than 50 grams of heroin, and one count of possessing marijuana. He was sentenced as a habitual offender pursuant to Mich. Comp. Laws § 769.12 and, per his plea agreement, received a sentence at the bottom of his guidelines range: 99 months to 30 years’ imprisonment for his cocaine conviction and 46 months to 30 years for his heroin conviction, to be served concurrently, and time served for his marijuana conviction.

In December 2015, Johnson, represented by new counsel, filed a motion for postconviction relief with the state trial court. The motion requested two forms of relief. One, to withdraw Johnson's no-contest plea because his trial counsel was ineffective. And two, a resentencing because the trial judge violated Johnson's Sixth and Fourteenth Amendment rights by basing his sentence on a fact not admitted or proved beyond a reasonable doubt. A hearing on Johnson's motion was set for June 2016. When the prosecution disputed many of the factual claims made in Johnson's motion, however, the hearing was cancelled. In March 2017, Johnson filed a discovery motion (and not long thereafter, an amended motion) seeking to compel his trial counsel to produce his case files and sit for an interview with Johnson's new counsel. Following a hearing, the trial court granted the discovery motion, ordering Johnson's trial counsel to provide the case files, sit for an interview, and appear in person with his files at any future evidentiary hearing. That interview apparently never took place, but Johnson did eventually secure an affidavit from his trial counsel.

Johnson, however, did not file his trial counsel's affidavit (or any other evidence) with the state court. And while the trial court clerk, at Johnson's request, filed Johnson's sentencing and plea transcripts with the trial court, Johnson did not ask the trial court to allow him additional discovery, to set a date for an evidentiary hearing, or to rule on his postconviction motion. Instead, in August 2019, just two months after the filing of his plea and sentencing transcripts, Johnson filed a petition for a writ of habeas corpus in the United States District Court for the Eastern District of Michigan. In his petition, Johnson acknowledged that the state trial court had not yet ruled on his postconviction motion, a fact that ordinarily would mean he had failed to satisfy 28 U.S.C. § 2254(b)(1)(A) ’s state exhaustion requirement, a threshold obligation for a petitioner seeking federal habeas relief. But he asserted that special circumstances existed due to "the inordinate delay on behalf of the state courts in addressing [his] claims," making resolution of his petition appropriate under § 2254(b)(1)(B).

The district court dismissed the petition without prejudice. To the district court's eye, there was no inordinate delay in state court because any delay was attributable to Johnson, in particular his failure to request an evidentiary hearing in state court. Because it dismissed Johnson's petition for failure to exhaust, the district court did not reach the merits of Johnson's constitutional arguments.


On appeal, Johnson asks us to grant his petition for a writ of habeas corpus to remedy the state court's purported constitutional violations in entering his sentence. The district court did not reach those issues, however, because it believed Johnson had not exhausted the remedies available to him in state court. Because exhaustion "is a threshold question that must be resolved before" a court may grant habeas relief, Wagner v. Smith , 581 F.3d 410, 415 (6th Cir. 2009), that is where we begin, reviewing de novo the district court's holding that Johnson failed to satisfy the exhaustion requirement, Pirkel v. Burton , 970 F.3d 684, 691–92 (6th Cir. 2020).


Dubbed the "great and efficacious writ" by Sir William Blackstone, a writ of habeas corpus is in essence an order requiring a detainee's appearance before a tribunal to determine whether his detainment is lawful. 3 William Blackstone, Commentaries *131; see also Rumsfeld v. Padilla , 542 U.S. 426, 435, 124 S.Ct. 2711, 159 L.Ed.2d 513 (2004) (explaining that a writ of habeas corpus directs the recipient to "produce the body of [the petitioner] before the court or judge, that he may be liberated if no sufficient reason is shown to the contrary" (quoting Wales v. Whitney , 114 U.S. 564, 574, 5 S.Ct. 1050, 29 L.Ed. 277 (1885) )). In view of the writ's remarkable force—in particular, "its ability to cut through barriers of form and procedural mazes," Harris v. Nelson , 394 U.S. 286, 291, 89 S.Ct. 1082, 22 L.Ed.2d 281 (1969)Congress has limited the authority of federal courts to entertain petitions for a writ of habeas corpus, see Dep't of Homeland Sec. v. Thuraissigiam , ––– U.S. ––––, 140 S. Ct. 1959, 1974 n.20, 207 L.Ed.2d 427 (2020) ("[T]he scope of habeas has been tightly regulated by statute, from the Judiciary Act of 1789 to the present day.").

One such limitation is set forth in 28 U.S.C. § 2254(b). There, Congress provided that "[a]n application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted unless it appears that ... the applicant has exhausted the remedies available in the courts of the State." § 2254(b)(1)(A) ; see also Act of June 25, 1948, ch. 646, 62 Stat. 869, 967 (enacting exhaustion requirement); Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), Pub. L. No. 104-132, § 104, 110 Stat. 1214, 1218–19 (reenacting in substantially the same form). Section 2254(b)(1)(A) ’s exhaustion requirement is grounded in the familiar principle of comity. In practice, it affords due respect to the operations of state courts by ensuring that a federal court will "not seek to upset a state court conviction on the basis of an alleged constitutional violation that the state court never had an opportunity to correct." Allen v. Mitchell , 953 F.3d 858, 866 (6th Cir. 2020) ; see also Ex parte Royall , 117 U.S. 241, 251, 6 S.Ct. 734, 29 L.Ed. 868 (1886).


Like many rules, however, § 2254 ’s exhaustion requirement has its exceptions. Congress codified two in § 2254(b)(1)(B). One is relevant here: a petitioner's failure to exhaust may be excused where "circumstances exist that render [the state's corrective] process ineffective to protect the rights of the applicant." § 2254(b)(1)(B)(ii).

1. In interpreting Congress's command in § 2254(b)(1)(B)(ii), we begin, as always, with the statute's text, "giving the words used their ordinary meaning." Artis v. District of Columbia , ––– U.S. ––––, 138 S. Ct. 594, 603, 199 L.Ed.2d 473 (2018). Two terms stand out. First, the statute permits excusing failure to exhaust only when the petitioner shows "circumstances" that warrant excusal. "Circumstances," both at the statute's enactment in 1948 and today, are background events that occur independent of one's volitional conduct. See Circumstance , Webster's New International Dictionary 489 (2d ed. 1949) (A "condition[ ] under which an event takes place or with respect to which a fact is determined."); see also Circumstance , The American Heritage Dictionary 338 (5th ed. 2018) ("[F]actors beyond willful control."). Second, a petitioner's failure to exhaust may be excused only if the state court process is "ineffective." As that term has generally been understood, a process is considered "ineffective" if it is "incapable of producing" the intended effect. Ineffective , Webster's New International Dictionary 1271 (2d ed. 1944); see also Ineffective , Webster's New World College Dictionary 743 (5th ed. 2020) ("Not capable of performing satisfactorily."). Putting these terms together, the text of § 2254(b)(1)(B)(ii) indicates that exhaustion is required unless an event beyond the petitioner's control makes the state court process incapable of resolving the petitioner's claim. This demanding standard is echoed in § 2254(c), where Congress instructed that a petitioner has not exhausted his state remedies if "he has the right under the law of the State to raise, by any available procedure , the question presented." 28 U.S.C. § 2254(c) (emphasis added).

2. Our reading of the text is further informed by background principles of federal habeas jurisprudence that predate the exhaustion requirement's codification in 1948. "Existing law," the Supreme Court has explained, "was made a part of [ § 2254 ]." Young v. Ragen , 337 U.S. 235, 238 n.1, 69 S.Ct. 1073, 93 L.Ed. 1333 (1949) ; see also Sekhar v. United States , 570 U.S. 729, 732, ...

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