In re: Benedict Joseph Cook, Iii

4 In re Cook No. 99-6526
claims to the state courts before the time for him to do so has
expired, he procedurally defaults and is foreclosed from
federal habeas corpus review of those claims, absent a
showing of cause and prejudice or a fundamental miscarriage
of justice. See O’Sullivan v. Boerckel, 119 S. Ct. 1728, 1734
(1999); Murray v. Carrier, 477 U.S. 478, 495-96 (1986);
Wainwright v. Sykes, 433 U.S. 72, 90-91 (1977). In his first
application, Cook did not show cause and prejudice for his
procedural default or a fundamental miscarriage of justice, so
he has forfeited federal habeas review of those claims. Thus,
Cook is not making one challenge with multiple stages but
has made a second challenge to his state conviction.
Based on the foregoing, we hold that because his initial
§ 2254 application was dismissed for unexcused procedural
default and was therefore “on the merits,” Cook’s current
application is a “second or successive habeas corpus
application” under § 2254(b). Further, because his second
application does not meet the requirements of § 2244(b)(2),
he has not made a prima facie showing that he is entitled to
habeas relief. Therefore, Cook’s motion seeking permission
to file a second or successive habeas corpus application under
§ 2254 is DENIED.
ENTERED BY ORDER OF THE COURT
/s/ Leonard Green
___________________________________
Clerk
*The Honorable Richard D. Cudahy, Circuit Judge of the United
States Court of Appeals for the Seventh Circuit, sitting by designation.
1
RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2000 FED App. 0190P (6th Cir.)
File Name: 00a0190p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
In re: BENEDICT J OSEPH
C OOK, III,
Movant.
;>

1
No. 99-6526
Filed: June 6, 2000
Before: MERRITT, CLAY, and CUDAHY,* Circuit Judges.
_________________
ORDER
_________________
In 1988, a Tennessee jury convicted Benedict Joseph Cook,
III, of three counts of aggravated rape and two counts of
aggravated sexual battery. He was sentenced to 25 years of
imprisonment. In December of 1996, Cook filed an
application for a writ of habeas corpus under 28 U.S.C.
§ 2254, but the district court denied the application. Then, in
1999, Cook filed another § 2254 application in the district
court. The district court forwarded the application to this
court to treat as a motion seeking authorization to file a
second application under 28 U.S.C. § 2244(b)(2). See In re

-- 1 of 2 --

2 In re Cook No. 99-6526
Sims, 111 F.3d 45, 47 (6th Cir. 1997). For the reasons
discussed below, we deny that motion.
Under the Antiterrorism and Effective Death Penalty Act of
1996, Pub. L. No. 104-132, 110 Stat. 1214, a state prisoner
cannot file a second or successive habeas corpus petition in
the district court unless the court of appeals issues an order
authorizing the district court to consider the second petition.
We may grant an applicant such permission under § 2244(b)
only if we determine that the application makes a prima facie
showing that the applicant meets the following requirements:
• the applicant shows that the claim relies on a new
rule of constitutional law, made retroactive to cases
on collateral review by the Supreme Court, that was
previously unavailable; or
• the factual predicate for the claim could not have
been discovered previously through the exercise of
due diligence, and the facts underlying the claim, if
proven and viewed in light of the evidence as a
whole, would be sufficient to establish by clear and
convincing evidence that, but for constitutional
error, no reasonable factfinder would have found the
applicant guilty of the underlying offense.
See 28 U.S.C. §§ 2244(b)(2), 2244(b)(3)(C). However,
before we determine if the application meets the requirements
of § 2244(b), we must first determine if Cook’s current
application is, in fact, a “second or successive habeas corpus
application under section 2254.” 28 U.S.C. § 2244(b)(2).
The timing of Cook’s filings—i.e. the fact that he has
already filed one § 2254 application—is not necessarily
determinative of whether the current attempt is a “second or
successive” application. We held in Carlson v. Pitcher, 137
F.3d 416 (6th Cir. 1998), that “a habeas petition filed after a
previous petition has been dismissed [for failure to exhaust
state remedies] is not a ‘second or successive’ petition
implicating the pre-filing requirement of obtaining an order of
authority from the court of appeals.” Id. at 420. The reason
No. 99-6526 In re Cook 3
for this result is that a disposition for failure to exhaust state
remedies is not a disposition “on the merits.” Id. at 419.
Thus, if Cook’s first § 2254 application had been denied only
for failure to exhaust state remedies, he would not need to
seek our permission to file his present application because we
would not consider it a “second or successive” application
under Carlson.
In dismissing Cook’s initial habeas application in 1997, the
district court discussed at length Cook’s failure to exhaust
state remedies, but, since the statute of limitations had run on
the relevant state remedies, the district court went on to find
that Cook had committed an unexcused procedural default.
See Cook v. Mills, Civ. A. No. 3: 96-1189 (M.D. Tenn.
Sept. 3, 1997) (memorandum explaining denial of
application) (“[T]he petitioner has failed to show sufficient
cause to excuse his procedural default.”). Although other
Circuits have held that a dismissal for procedural default is a
dismissal “on the merits,” see, e.g., Carter v. United States,
150 F.3d 202, 205-06 (2d Cir. 1998) (procedural default for
failure to raise issue during trial or direct appeal); Bates v.
Whitley, 19 F.3d 1066, 1067 (5th Cir. 1994) (procedural
default for failure to comply with state’s contemporaneous
objection rule), we have yet to rule explicitly that when a
prisoner’s first habeas application is dismissed for procedural
default arising from failure to exhaust state remedies where
the statute of limitations has run on those remedies, the
dismissal is “on the merits,” and that prisoner’s second habeas
application must be authorized by this court under
§ 2244(b)(3). Today we so hold.
Unlike a procedural default, a mere failure to exhaust state
remedies does not result in a dismissal “on the merits” and
does not cause a forfeiture of access to federal habeas review.
Because the applicant could exhaust and then refile, a
dismissal for failure to exhaust state remedies can give rise to
two § 2254 applications properly thought of as “one challenge
with multiple stages.” Carlson, 137 F.3d at 419 (quoting
Benton v. Washington, 106 F.3d 162, 164 (7th Cir. 1996)).
But when the prisoner fails to fully and fairly present his

-- 2 of 2 --