1

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

ELECTRONIC CITATION: 2004 FED App. 0271P (6th Cir.)

File Name: 04a0271p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

_________________

JOHNNY COWHERD,

Petitioner-Appellant,

v.

GEORGE MILLION, Warden,

Respondent-Appellee.

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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 

Before: BOGGS, Chief Judge; and MARTIN, SILER,

BATCHELDER, DAUGHTREY, MOORE, COLE,

CLAY, GILMAN, GIBBONS, ROGERS, SUTTON, and

COOK, Circuit Judges.

_________________

COUNSEL

ARGUED: Christopher J. Pagan, REPPER, POWERS &

PAGAN, Middletown, Ohio, for Appellant. David A. Smith,

OFFICE OF THE ATTORNEY GENERAL, Frankfort,

Kentucky, for Appellee. ON BRIEF: Christopher J. Pagan,

2 Cowherd v. Million No. 02-5499

REPPER, POWERS & PAGAN, Middletown, Ohio, for

Appellant. David A. Smith, OFFICE OF THE ATTORNEY

GENERAL, Frankfort, Kentucky, for Appellee.

_________________

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 postconviction 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
No. 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. 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 timebarred. 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 postconviction 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’sMotion to Dismiss Petition as Time-Barred, and

incorporates that document in reference in its entirety.”

4 Cowherd v. Million No. 02-5499

1

At the time the district court issued the COA, the Seventh Circuit

had joined the Ninth Circuit in rejecting Austin. Carter v. Litscher, 275

F.3d 663 (7th Cir. 2001).

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 (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.
No. 02-5499 Cowherd v. Million 5

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

6 Cowherd v. Million No. 02-5499

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 postconviction 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

(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
No. 02-5499 Cowherd v. Million 7

possible claims the latter may make available to a

petitioner; it would, therefore, be inappropriate for a

federal court to determine whether a petitioner's nonfederal remedies have been exhausted. By the same

token, the federal habeas tolling provision should not be

invoked except when a federal claim remains

unexhausted in state court. Tolling is the complement of

the exhaustion requirement. We hold, therefore, that a

state petition for post-conviction or other collateral

review must present a federally cognizable claim for it to

toll the statute of limitations pursuant to [§ 2244(d)(2)].

Austin, 200 F.3d at 394.

Since our decision in Austin, at least four other circuits

have wrestled with this particular issue, and all have rejected

Austin’s interpretation. See Ford v. Moore, 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 circuits presented

both textual and policy arguments to support their

interpretation of § 2244(d)(2). We consider each rationale in

turn.

A

In determining statutory meaning, this court looks “first to

the plain language of the statute.” The Ltd., Inc. v. Comm’r,

286 F.3d 324, 332 (6th Cir. 2002). “When a statute is

unambiguous, resort to legislative history and policy

considerations is improper.” Koenig Sporting Goods, Inc. v.

Morse Road Co., 203 F.3d 986, 988 (6th Cir. 2000). “Under

accepted canons of statutory interpretation, we must interpret

statutes as a whole, giving effect to each word and making

every effort not to interpret a provision in a manner that

renders other provisions of the same statute inconsistent, 

meaningless or superfluous.” Mitchell v. Chapman, 343 F.3d

8 Cowherd v. Million No. 02-5499

811, 825 (6th Cir. 2003) (quoting Lake Cumberland Trust,

Inc. v. EPA, 954 F.2d 1218, 1222 (6th Cir. 1992)).

The thrust of the textual argument against Austin is that it

reads the word “judgment” out of the statute. Under Austin’s

interpretation, the post-conviction motion must, in order to

toll the statute of limitations, include a federal claim, even

though the statute says judgment or claim. As this court has

explained, “[i]t is a basic principle of statutory construction

that terms joined by the disjunctive ‘or’ must have different

meanings because otherwise the statute or provision would be

redundant.” United States v. Hill, 79 F.3d 1477, 1482-83 (6th

Cir. 1996).

The Ninth Circuit, in Tillema, offers persuasive textual

analysis on this point.

The state's argument is plainly wrong. To begin with, the

state's reading of section 2244(d)(2) fails on its own

terms. The words “judgment” and “claim” are used in the

disjunctive. Thus, to accept the state's argument would

be to render the word judgment “surplusage.” . . . The

text of section 2244(d) makes clear that, in drafting the

provision in question, Congress was aware of the

distinction between the word “judgment” and the word

“claim,” and did not intend that the first word employed

in the provision be ignored.

253 F.3d at 499-500. See also Sweger, 294 F.3d at 517

(“[Austin] fail[ed] to give the words ‘judgment’ and ‘claim’

separate meanings despite the fact that the words are

separated in the statute by the disjunctive term ‘or.’”); Carter,

275 F.3d at 665 (“Austin reads the word ‘judgment’ out of

§ 2244(d)(2) and tolls the time only while a particular ‘claim’

(which Austin took to mean ‘theory 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, but Tillema persuasively

shows why that argument fails:

This construction of section 2244(d)(2) does not, as the

state contends, read the word “claim” out of the statute.

Although it is true that in most cases a state application

that includes a pertinent claim will also, as a matter of

course, relate to the pertinent judgment, such will not

always be the case. For example, a claim that a death-row

inmate is incompetent to be executed does not challenge

the validity of the judgment, but only its execution.

Similarly, a claim challenging the unconstitutional

revocation of “good-time credits,” though cognizable

only in habeas corpus proceedings, has no bearing 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

not adequately consider the difference between “judgment”

and “claim” in § 2244(d)(2). Thus, the plain meaning of the

statutory text requires us to reject Austin’s interpretation. In

light of this decision, it is unnecessary to reach the question

of whether Cowherd’s second post-conviction motion should

be construed as including a federal claim.

B

Although we need not consider policy arguments because

the statute is unambiguous, we note that there are also sound

policy reasons for abandoning Austin. As explained above,

Austin’s interpretation relied heavily on comity and the

exhaustion requirement in 28 U.S.C. § 2254(c). The Seventh

Circuit illustrated the shortcomings of these particular policy

arguments:

[Austin] is not correct; it confuses tolling with

exhaustion. A state court must be given the first

10 Cowherd v. Million No. 02-5499

opportunity to address the federal issue, but this

exhaustion requirement can be satisfied on direct appeal

as well as on collateral attack. Usually it is preferable to

raise the federal question as soon as possible, which

means at trial and on direct appeal. This does not imply,

however, that state prisoners must proceed immediately

from their direct appeals to federal collateral attacks. A

state collateral proceeding based solely on state-law

issues may avoid the need for federal relief, and a tolling

rule permits prisoners to pursue such theories in state

court without jeopardizing their ability to raise the

federal constitutional issues later in federal court, if that

proves to be necessary.

Carter v. Litscher, 275 F.3d 663, 665 (7th Cir. 2001) (internal

citations omitted). See also Tillema, 253 F.3d at 501 (“[I]t is

clear that our holding will advance, rather than undermine, the

policies of comity and federalism upon which AEDPA was

enacted.”). Thus, Austin would encourage prisoners to file

federal collateral attacks even though the statepost-conviction

proceedings could potentially make those federal claims

unnecessary. We find this policy argument to be persuasive.

Of course, prisoners are still required to comply with all the

exhaustion requirements under AEDPA. Tillema, 253 F.3d

at 502 (“Our holding does not, of course, in any way alter or

excuse the fundamental requirement that habeas petitioners

must exhaust in state court any claims that they wish to

present in federal court.”).

IV

For the reasons stated above, we now overrule Austin v

Mitchell, 200 F.3d 391 (6th Cir. 1999). Accordingly, 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.