Johnny Cowherd v. GEORGE MILLION, Warden

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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,
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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 post-
conviction 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

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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 time-
barred. 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 post-
conviction 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’s Motion to Dismiss Petition as Time-Barred, and
incorporates that document in reference in its entirety.”
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1At the time the district court issued the CO A, the S eventh 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.

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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
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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 post-
conviction 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

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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 non-
federal 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
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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.”).

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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
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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 state post-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.

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