1 RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Six

th Circuit Rul e 206
ELECTRO NIC CIT

ATION: 2004 FED App . 0271P (6th C ir.) File Name: 04a02 71p.06



### UNITED STATES COURT OF APPEALS

FOR THE SIXT H CIR CUIT

_________________
J OHNNY C OWHERD , Petitione r-Appell ant,

v.

G EORGE M IL LI ON , Warden, Respondent-Appellee. X

- - - -
> , - - N No. 02-5499

Appeal from the United States District Court for the Eastern District of Kentucky at Lexington. No. 01-00250—Henry

R. Wilhoit, Jr., District Judge. Argued: March 10, 2004 Decided and Filed: August 19, 2004
Befor e: BOGG S, Chief Judg e; and MA RTIN , SIL

ER, BATCHELDER, DAUGHT REY, MOORE, COLE, CLAY, GI

LMAN, GI

BBONS, ROGERS, SUTTON, and COOK, Circ

uit Judges

.

_________________ COUNSEL
ARGUED: Christophe

r J. Pagan , REPPER, POWER S & PAGAN, Middletown, Ohio, for Appellant. David A. Smith, OFFI CE OF THE ATTORNEY G ENERAL , Frank

fort, Ke nt uc ky, for Appellee. ON BRI EF: Chr isto pher J. Pagan, 2 Cowherd v. Million No. 02-5499

REPPER, POWERS & PAGAN , Middletown, Ohio, for Appellan t. David A. Smith, OFFICE OF THE ATTO RNEY GENERAL, Frankf

ort, Kentucky, f

or Appellee.

_________________ OPINION

_________________ BOGGS, Chief Judge. Petitioner Johnny Cowherd, a state prisoner in Ke nt uc ky, appeals from the denialof his petition for a writ of hab eas cor

pus. The district court, rely ing on A ustin v. Mitch ell , 200 F.3d 391 (6th Cir . 1999), f

ound th a t Cowherd’s claim had

been time- barred

under 28 U.S.C. § 2244(d)(1), which establishes a one-y ear statute of limitations for fi ling ha beas petitions. The question before this court is whether one of Cowherd’s state post-conviction p roceed ings tolled that statute of limitations pursuant t o 28 U.S.C. § 2244(d)(2). This question d epends entirely on whether this cour t choose s to ad here to Austin , which he ld that post-con viction pr oceedin gs toll the statute of limitations only if they include a f

ederal claim. Because we now f ind that Austin was wron

gly decided, we revers e the distr ict cour t.
I
The releva

nt facts a re straightforward. Cowherd wa s convi cted in 1993 on two counts of first-degree rape , four counts of first-degree sodomy, and first-degree criminal trespas s. The trial court judge sentence d Cowh erd to 104 years of imprisonment, and t he conviction was affirmed on d irect appeal. Cowherd proceeded to file four state pos t

convictionmotions over the next seven yea

rs. The first of theseprocee dings be came fin al prior t o the eff ecti ve date of the Antiterrorism and Effective Death Penalty Ac t (AEDPA), Ap ril 24, 1996. Thus, the one-ye ar statute of limitat ion s under § 2244(d)(1) for filing a habeas pe tition began

running
on that date. Searcy v. Carter , 246 F.3d 515, 517 ( 6th Cir. 2001). Cowherd filed his second post-conviction motion onNo. 02-5499 Cowherd v. Million 3

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. Alth ough there is some ques tion about

when the se acti ons w ere 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 assist an ce of trial counsel, an Eighth Amendment claim, a Double Jeopardy Clause cla im, and ineffective assistanceof appella te counsel. After th e habea s p etition was filed, the respondent

(“Warde n ”) moved to dismiss the petition as timebarred. Sp ecific ally, the Warden ar gued that Cowherd had notfiled 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 Ward encorrectly

cited Austin , which sta ted that p ostconvicti on motions to ll the statute of limitations only if they include a federal claim. Austin , 200 F. 3d at 3 94. Cowherd responded

that Austin w as wrongly decided and pointed out that the Ninth Circuit had rejected Austin in Tillema v. Long , 253 F.3d 494 (9th Cir. 2001)

. Alternatively, Cowher d argued that, even if Austin controlle d, Cowher d presen ted a cla im in his second post-conviction motionthat could be construed as a federal claim.
This question was initially refer red to a magistrate judge, who rejected Cowherd’s argume nts and concluded, in a report and rec om men dat io n, t hat th e pe ti ti on w as t im e-b arr ed. In subsequent

objections to this repo rt, Cowherd did not specific ally

raise the claim tha

t Austin had bee

n wrong ly decided, but he did attempt to incorp orate hi s prior ar guments into his objections. He wro te, “[p]etitioner reasserts the argume nts present

ed in his Memora nd

um in Oppo

sition to Respondent’s Mo tion to Dism iss Petitio n as Time- Barre d, an d incorporates that document in reference in its entirety.” 4 Cowherd v. Million No. 02-5499

1 At the ti me the distri ct court is sue d th e CO A, the S even th Circ uit had joi n ed the Ninth Circuit in rejecting Au stin

. Carter v. Lits cher , 275 F.3d 663 (7th Cir. 2001). The district

court accepted the magistrate judg e’s report and dismissedthe petition on March 22, 2002. On May 14, 2002, however, the district court issued a certificate of

appeala bility (“COA”). The court explained that Cowherd had met the require ments of Slack v. M

cDanie l , 529 U.S. 473 (2000), because reasona ble jurist s could

find it deb atable

whether his petition was time-barred (in light of the other ci rcu its’ rejection of Austin ). 1 The COA order al so n oted that , altho ugh the court had not considered the constitutional claims in the habeas petition, “jurists of reason may find i t debatab le as to whether the Petitioner

has set f orth a va lid constitutional claim.”
Cowherd’s subseque

nt appea l was dismi ss ed without argument by this cou

rt p ursuant to Fed. R. App. P. 34(a) on September

10, 2003. I

n that order , the panel upheld the districtcourt’s

finding and dis mis sed Cowhe

rd’s ar guments that Austin was wron

gly decided, adding that it had no power to overturn a published opinion of a prev ious panel. I t also dismissedCowherd’ s claims that the second post-conviction motion presented a federal claim. T he panel’s decision was subseque ntly vacate d when thi s court

granted the motion for rehearing en banc.
II
Before reaching the question of Austin’s continued vi ab il it y, we should

briefly address threshol d argu

ments raised by the Warden

that, if correct, would prevent us from reaching the qu estio n regard ing Austin . First, th e Warden claims that if this court upholds Austin , it cannot consider whether Cowherd’s second

post-conviction motion included
a f e deral claim because this issue was not included in the COA. The Warden, however, reads the COA t oo n ar ro wl y.No. 02-5499 Cowherd v. Million 5

The COA cert ified the

issue of w

hether Cowherd’ s claims were properly

dismissedbecause they

had been time-barred. Therefore, all a

r guments relevant to this question, including whether the post-conviction motion raised a federal claim, are properly be fore this court.
Sec ond, the Warde

n argues that Cow

herd wa ived th e argument that Austin was decided incorrectly because he failed to raise the argument

in his objectio ns to the ma gistra te judge’s report. Generally , the failure to file s pecific objections to a magistrate’s repo rt c onstitutes 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 g ranting the COA, that “[w]hile the Petitioner did no t rais e this argument

before the Court in its objections to the Report and Recommendation, the Petitioner is nonethe less correct in his statemen

t that Tillema reached a conclusion c ont rary to the hold ing in A ustin .” This sta tement is n

ot entire ly
accura te

. As e xplained a

bove, Cow

herd note d explicitly

in his objections that

he was incorporating

argume nts raise d in his prior motion in

opposition to the motion to dismiss. And there is no dispute thathe did in f act rais e this arg

ument in his earlier motion. Thus, the ques tion is whether Cowherd should have been all owed to incorpor ate olde r argu ments into his objec tions to the

magistr ate judg e’s rep ort.
T his court has allowed parties to incorporate pr io r argume nts into their objections to amagistr ate judg e’s rep ort, butwe disfavor such practices. I n th is particular case, because Cowhe rd’s arguments before both the district court and this cour t are cle ar, we w

ill allow Cowherd to

re ly on earlier argume nts that he

incorpor ated into his objec tions.
The requ iremen t for spe cific ob jections t o a magi strate judge's report is

not jurisdictional and

a failur e to compl

y may be excuse d in

th e in ter est of j ust ice . In the present case, unlike in [a prior

case], the objections directed the districtjudge' s attention to speci fic issues decided by the magistr ate contrary

to Kel ly's posi tion . The d istr ict j udge 6 Cowherd v. Million No. 02-5499

appare ntly had no probl em in f

ocusi ng on the spe cific
areas of disagreement betwee n the parties. Thus, the obj ecti ons 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. Ri ver

s , 125 F.3d 315, 323 (6th Cir. 1997) (rejecting reference to prior arg

uments because “re f

erence was not sufficie

ntly specific to satisfy

the sta nd ards announced

by t h i s court in . . . Kelly ”

). We warn, however, that parties w ho fail to make spec ific obje ctions do s o at their
ownperil. Having disposed of the p reliminary issues, we
now turn to Austin and its interpretation of 28 U.S.C

. § 2244(d)(2).
III
The text of

§ 2244(d) (2) rea

ds: (2) The time during whicha properly filed application for State post-co nv iction or o ther col lateral review w

ith respect to the pertine

nt judg ment or c laim is pending shallnot be counted toward an y period of limitation under this subsection (emphasis added).
In Austin , this court interpreted § 2244(d)(2) to mean th at, inorder t o tol l the statu te of limita

tions, the state pos tconvictionpetition “

must raisea federal constitutional issue.” Austin , 200 F.3d at 394. The court ’s interpretation relied h eavil y on policy and its reading of the Supreme Court’s discussion of the

exh a ustion re quireme

nt in 28 U.S. C. § 2254(c) in O’Sullivan v. Boerckel , 526 U.S. 838, 844 (1999). [T]he federal habeas exhaustion doctrineis not mean t to apply to purely state law or state c onstit

utional claims, suchas techn

ical def ects in ind ictments. This rule is sound for another reason, as well. F ederal

courts do not
necessar ily

kn ow the intricacies of state law and theNo. 02-5499 Cowherd v. Million 7

possibl e cla ims the latter may make a vailable to a petitioner; it would, therefore, be inappropriate for a federal court to d

etermine whether a petitioner's n on
federal remedie s have be en exhaust ed. By the same token, the federal habeas tolling provision should not be invoke d exc ept when a federal claim remains unexhausted

instate court. Tolling is the complement of the exhaustion r equire ment. We ho ld, there fore, th at a state pet itio n for post-conviction or other collateral review must present

a feder ally cogniza ble claim for it to toll the statute of

limitations pursuant to [§ 22 44(d )(2) ].
Austin , 200 F.3d at 394.
S ince our decision in Austin , at leas t four oth er circ uits have wrestle d with

this particular issue, and all have rejected Austin’s interpretation. See Ford v. M oore , 296 F.3d 1035, 1038-40 (11th Cir. 2002); Sweger v. Chesney , 294 F.3d 506, 516-20 (3d

Cir. 2002); Carter v. Litscher , 275 F.3d 663, 665- 66 (7th Cir. 2001); Tillema v. Long , 253 F.3d 494, 498-502 & n.10 (9th Cir. 2001). In doing so, our sister circ uits presented both textual and p olicy

argume nts to support their interpretation

of § 2244(d)(2). We consider each rationa le in turn.
A
Indetermining statutory

meaning, this court looks “first to the plain langua ge of the statute.” The Ltd., Inc. v. Comm’r , 2 86 F.3d 324, 332 (6th Cir. 2002) . “When a s tatute is unambig uous, resort to legislative history and policy considerations is improper.” Koenig Spo rting Good s, Inc. v. Morse Road Co. , 203 F.3d 9 86, 988 (6 thCir. 2000). “Under accepted canons of statutory inter

pretation, we must interpret statutes as a whole, giving effec t to each word and making every effort not to interpret a provision in a manner that renders other pr

ovisions of

the same

statute in

consis tent, meaning less or

superfluous.” Mitchell v. Chapman , 343 F.3d 8 Cowherd v. Million No. 02-5499

811, 825 (6th

Cir. 2003) (quot ing Lak e Cumberlan d Trust, Inc. v. EPA , 954 F.2d 1218, 1222 (6th Cir. 1992)).
The thrus t of the textual arg ument ag ainst Austin is that it reads the word “judgment” out of the statute. Under Austin ’s interpretation, the post- convic tion m otion must, i n order t o toll the statut

e of limita

tions, inc lude a fe deral claim , even though the statute

say s judgment or

claim . As this court has explained, “[i]t is a basic principle of statutory c onstruction that terms joined by

the disjunctive ‘or’ must ha ve different meani ngs because

otherwis e the sta

tute or provision would be redundant.” United Sta tes v. Hil l , 79 F.3d 1477, 1482 -83 (6th Cir. 1996).
The Ninth Circuit, in Tillema , o ffers persuasive textual analy sis on this po int.
The state 's argument is plainly wrong. To begin with, the state 's reading

of se ct ion 2244(d)(2) fails on its own terms. The word s “judgment” and “claim” are used in the disjunctive. Thus, to a

ccept th e state 's a

rgumen t would be to render the word judgment “surplusag e. ” . . . The text of section 2244 (d) makes clear that, in drafting the provision in question, Congress wa s awa re of the distinction between the word “j udgmen t” and the word “claim,” and did not intend that the first word employed in the provision be ignored.
253 F.3d at 4 99 -500. See also Sweger , 294 F.3d at 517 (“[ Austin ] fail[ed] to g ive th e words ‘ judgmen t’ and ‘c laim’ separa te meanings despite the fa ct th at the words are separated inthe statut

e by the disjunctive term ‘or.’ ”); Carter , 275 F.3d at 665 (“

Austin reads the word ‘judgment’ out of § 2244(d)(2) and tol ls the time only while a pa

rticular ‘claim’ (which Austin took to mea n ‘theor y of relief’ ) is before the state court.”).No. 02-5499 Cowherd v. Million 9

The Warden responds that the opposite approach reads the word “claim” out of the

statute, b

ut Tillema persuas ively shows why

that arg ument fa ils:
This construction of section 2244(d)(2) do e s not, as the state co ntends, read the word “claim” out of the statute. Alth ough it is true that in most c ases a st ate application that inc ludes a p ertinent claim will also, as a matter of course, relate

t o the pertinent judgment, such will not al wa ys be the case. For example, a claim that a death-row inmateis in compe tent t o be ex ecuted does n ot cha llenge the validity of the judgment, but only its execution. Similarly , a claim challenging the unconstitutional
revoca tio n o f “goo d-time cr

edits,” th ough co gnizable only in habeas corpus proceedings, has no be aring on the underlying

judgment of conviction and sentence. 253 F.3d at 500 n.7 (internal citation omitted).
We find these textual arguments persuasive. Austin does notadequatel y c onsider t he diffe rence b etween

“judgme nt” and “claim” in § 2244(d)(2). Thus, the plain meaning of the statutory text requires us to reject Austin’s in ter pre tat io n. In light of this decision, it is unnecessary to r each the question of whether Cowherd’ s second p ost-conv iction moti on should be constr ued as inc luding a

federa l claim.
B
Alth ough we need

not consid

er policy a

rgume nts because the statute is unambiguous, we note that there are also sound pol icy r eason s for ab andon ing Austin . As explained above, Austin ’s interpre

tation re li ed h eavily on comity and the exhaustion requirement in 28 U.S.C. § 2254(c). The Seve nth Circuit illustrated

the shortcomings of these particular policy argume nts: [ Austin ] is not cor

rect; it c onfuses t

olling wi

th exhaustion. A state c ourt must be g iven the f irst 10 Cowherd v. Million No. 02-5499
opportuni ty to addre ss the fe deral iss ue, but thi s exhaustion requirement can be satisfied on direct appeal
as well as on

collater al attack. Usually

it is pref erable to raisethe federal question as soon as pos sible, which
means at tr ia l a nd on di re ct ap pe al . T hi s d oe s n ot im pl y, however, that state

prisoners must

procee d immediat

ely fromtheir dir

ect appe als to fed

eral co llatera

l att ac ks. A state collater a l proceeding based solely on state-law issues may

avoid the need for

federal relief, and a tolling rule permits pri soners to pursue such theories in sta

te court without je opardizin

g their ability to raise t

h e federal constitutional issues later in f ederal court, if that pr ov es to be ne ce ss ar y. Carter v. Litscher , 275 F.3d 663, 665 (7th Cir. 2001) (internal citations omitted). See alsoTillema , 253 F.3d at 501 (“[I ]t is clear that o ur holding will advance, rather than under mine, the policies of c om ity and feder alism upon which AEDPA was enacted.”). Thu s, Austin would enc ourag e prisone rs to file federal collateral attack s even thou gh the state po st-conviction procee dings could potentially make t ho se fede

ral clai ms un ne ce ss ar y. We find

this policy

argument to be persuasive. Of course, prisoners are stil l r equir ed to comply with all the exhaustio n r equirements under AEDPA. Tillema, 253 F.3d at 502 (“Our holding does not, of course, in any

way alter or excusethe fund amental requirement that habeas petitioners must exhaust in stat e cou rt any claims tha

t they wish to present in federal court.”).
IV
Fo r the reasons stated above, we now overrule Austin v Mitchell , 200 F.3d 391 (6th Cir. 1999). Acco rdi ngly, we REVERSE

the district court’s holding that Cowherd’s claim
was time-barred under the rule of Austin , and REMAND for further proceedings in conformity with this opinion.