       RECOMMENDED FOR FULL-TEXT PUBLICATION
            Pursuant to Sixth Circuit Rule 206            2    Cowherd v. Million                           No. 02-5499
    ELECTRONIC CITATION: 2004 FED App. 0271P (6th Cir.)
                File Name: 04a0271p.06                    REPPER, POWERS & PAGAN, Middletown, Ohio, for
                                                          Appellant. David A. Smith, OFFICE OF THE ATTORNEY
                                                          GENERAL, Frankfort, Kentucky, for Appellee.
UNITED STATES COURT OF APPEALS
                                                                              _________________
              FOR THE SIXTH CIRCUIT
                _________________                                                 OPINION
                                                                              _________________
 JOHNNY COWHERD ,                 X
                                                            BOGGS, Chief Judge. Petitioner Johnny Cowherd, a state
          Petitioner-Appellant, -                         prisoner in Kentucky, appeals from the denial of his petition
                                   -
                                   -   No. 02-5499        for a writ of habeas corpus. The district court, relying on
            v.                     -                      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
 GEORGE MILLION , Warden,          -
         Respondent-Appellee. -                           limitations for filing habeas petitions. The question before
                                                          this court is whether one of Cowherd’s state post-conviction
                                  N                       proceedings tolled that statute of limitations pursuant to
       Appeal from the United States District Court       28 U.S.C. § 2244(d)(2). This question depends entirely on
    for the Eastern District of Kentucky at Lexington.    whether this court chooses to adhere to Austin, which held
   No. 01-00250—Henry R. Wilhoit, Jr., District Judge.    that post-conviction proceedings toll the statute of limitations
                                                          only if they include a federal claim. Because we now find
                Argued: March 10, 2004                    that Austin was wrongly decided, we reverse the district court.

          Decided and Filed: August 19, 2004                                             I

  Before: BOGGS, Chief Judge; and MARTIN, SILER,             The relevant facts are straightforward. Cowherd was
   BATCHELDER, DAUGHTREY, MOORE, COLE,                    convicted in 1993 on two counts of first-degree rape, four
 CLAY, GILMAN, GIBBONS, ROGERS, SUTTON, and               counts of first-degree sodomy, and first-degree criminal
              COOK, Circuit Judges.                       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
                       COUNSEL                            these proceedings became final prior to the effective date of
                                                          the Antiterrorism and Effective Death Penalty Act (AEDPA),
ARGUED: Christopher J. Pagan, REPPER, POWERS &            April 24, 1996. Thus, the one-year statute of limitations
PAGAN, Middletown, Ohio, for Appellant. David A. Smith,   under § 2244(d)(1) for filing a habeas petition began running
OFFICE OF THE ATTORNEY GENERAL, Frankfort,                on that date. Searcy v. Carter, 246 F.3d 515, 517 (6th Cir.
Kentucky, for Appellee. ON BRIEF: Christopher J. Pagan,   2001). Cowherd filed his second post-conviction motion on

                            1
No. 02-5499                          Cowherd v. Million        3    4       Cowherd v. Million                                No. 02-5499

January 10, 1997, and this motion was ultimately dismissed             The district court accepted the magistrate judge’s report and
on December 9, 1998. He also filed post-conviction motions          dismissed the petition on March 22, 2002. On May 14, 2002,
on March 10, 1999, and September 12, 2000. Although there           however, the district court issued a certificate of appealability
is some question about when these actions were ultimately           (“COA”). The court explained that Cowherd had met the
dismissed, both sides concede that the second post-conviction       requirements of Slack v. McDaniel, 529 U.S. 473 (2000),
proceeding is dispositive.                                          because reasonable jurists could find it debatable whether his
                                                                    petition was time-barred (in light of the other circuits’
   Cowherd filed a petition for a writ of habeas corpus on          rejection of Austin).1 The COA order also noted that,
June 11, 2001. He raised four claims for relief: ineffective        although the court had not considered the constitutional
assistance of trial counsel, an Eighth Amendment claim, a           claims in the habeas petition, “jurists of reason may find it
Double Jeopardy Clause claim, and ineffective assistance of         debatable as to whether the Petitioner has set forth a valid
appellate counsel. After the habeas petition was filed, the         constitutional claim.”
respondent (“Warden”) moved to dismiss the petition as time-
barred. Specifically, the Warden argued that Cowherd had              Cowherd’s subsequent appeal was dismissed without
not filed his petition within the one-year period, and that         argument by this court pursuant to Fed. R. App. P. 34(a) on
because the second post-conviction motion did not raise any         September 10, 2003. In that order, the panel upheld the
federal claim, the second post-conviction proceeding did not        district court’s finding and dismissed Cowherd’s arguments
toll the statute of limitations. In support of this argument, the   that Austin was wrongly decided, adding that it had no power
Warden correctly cited Austin, which stated that post-              to overturn a published opinion of a previous panel. It also
conviction motions toll the statute of limitations only if they     dismissed Cowherd’s claims that the second post-conviction
include a federal claim. Austin, 200 F.3d at 394. Cowherd           motion presented a federal claim. The panel’s decision was
responded that Austin was wrongly decided and pointed out           subsequently vacated when this court granted the motion for
that the Ninth Circuit had rejected Austin in Tillema v. Long,      rehearing en banc.
253 F.3d 494 (9th Cir. 2001). Alternatively, Cowherd argued
that, even if Austin controlled, Cowherd presented a claim in                                           II
his second post-conviction motion that could be construed as
a federal claim.                                                      Before reaching the question of Austin’s continued
                                                                    viability, we should briefly address threshold arguments
  This question was initially referred to a magistrate judge,       raised by the Warden that, if correct, would prevent us from
who rejected Cowherd’s arguments and concluded, in a report         reaching the question regarding Austin. First, the Warden
and recommendation, that the petition was time-barred. In           claims that if this court upholds Austin, it cannot consider
subsequent objections to this report, Cowherd did not               whether Cowherd’s second post-conviction motion included
specifically raise the claim that Austin had been wrongly           a federal claim because this issue was not included in the
decided, but he did attempt to incorporate his prior arguments      COA. The Warden, however, reads the COA too narrowly.
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             1
incorporates that document in reference in its entirety.”                 At 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).
No. 02-5499                           Cowherd v. Million         5   6      Cowherd v. Million                          No. 02-5499

The COA certified the issue of whether Cowherd’s claims                  apparently had no problem in focusing on the specific
were properly dismissed because they had been time-barred.               areas of disagreement between the parties. Thus, the
Therefore, all arguments relevant to this question, including            objections served the purposes of the requirement that
whether the post-conviction motion raised a federal claim, are           objections be specific.
properly before this court.
                                                                     Kelly v. Withrow, 25 F.3d 363, 366 (6th Cir. 1994). But see
  Second, the Warden argues that Cowherd waived the                  Neuman v. Rivers, 125 F.3d 315, 323 (6th Cir. 1997)
argument that Austin was decided incorrectly because he              (rejecting reference to prior arguments because “reference
failed to raise the argument in his objections to the magistrate     was not sufficiently specific to satisfy the standards
judge’s report. Generally, the failure to file specific              announced by this court in . . . Kelly”). We warn, however,
objections to a magistrate’s report constitutes a waiver of          that parties who fail to make specific objections do so at their
those objections. Miller v. Currie, 50 F.3d 373, 380 (6th Cir.       own peril. Having disposed of the preliminary issues, we
1995). We note that the district court did state, in its order       now turn to Austin and its interpretation of 28 U.S.C.
granting the COA, that “[w]hile the Petitioner did not raise         § 2244(d)(2).
this argument before the Court in its objections to the Report
and Recommendation, the Petitioner is nonetheless correct in                                        III
his statement that Tillema reached a conclusion contrary to
the holding in Austin.” This statement is not entirely                   The text of § 2244(d)(2) reads:
accurate. As explained above, Cowherd noted explicitly in
his objections that he was incorporating arguments raised in             (2) The time during which a properly filed application for
his prior motion in opposition to the motion to dismiss. And             State post-conviction or other collateral review with
there is no dispute that he did in fact raise this argument in his       respect to the pertinent judgment or claim is pending
earlier motion. Thus, the question is whether Cowherd                    shall not be counted toward any period of limitation
should have been allowed to incorporate older arguments into             under this subsection (emphasis added).
his objections to the magistrate judge’s report.
                                                                       In Austin, this court interpreted § 2244(d)(2) to mean that,
  This court has allowed parties to incorporate prior                in order to toll the statute of limitations, the state post-
arguments into their objections to a magistrate judge’s report,      conviction petition “must raise a federal constitutional issue.”
but we disfavor such practices. In this particular case,             Austin, 200 F.3d at 394. The court’s interpretation relied
because Cowherd’s arguments before both the district court           heavily on policy and its reading of the Supreme Court’s
and this court are clear, we will allow Cowherd to rely on           discussion of the exhaustion requirement in 28 U.S.C.
earlier arguments that he incorporated into his objections.          § 2254(c) in O’Sullivan v. Boerckel, 526 U.S. 838, 844
                                                                     (1999).
  The requirement for specific objections to a magistrate
  judge's report is not jurisdictional and a failure to comply           [T]he federal habeas exhaustion doctrine is not meant to
  may be excused in the interest of justice. In the present              apply to purely state law or state constitutional claims,
  case, unlike in [a prior case], the objections directed the            such as technical defects in indictments. This rule is
  district judge's attention to specific issues decided by the           sound for another reason, as well. Federal courts do not
  magistrate contrary to Kelly's position. The district judge            necessarily know the intricacies of state law and the
No. 02-5499                          Cowherd v. Million         7   8      Cowherd v. Million                          No. 02-5499

  possible claims the latter may make available to a                811, 825 (6th Cir. 2003) (quoting Lake Cumberland Trust,
  petitioner; it would, therefore, be inappropriate for a           Inc. v. EPA, 954 F.2d 1218, 1222 (6th Cir. 1992)).
  federal court to determine whether a petitioner's non-
  federal remedies have been exhausted. By the same                   The thrust of the textual argument against Austin is that it
  token, the federal habeas tolling provision should not be         reads the word “judgment” out of the statute. Under Austin’s
  invoked except when a federal claim remains                       interpretation, the post-conviction motion must, in order to
  unexhausted in state court. Tolling is the complement of          toll the statute of limitations, include a federal claim, even
  the exhaustion requirement. We hold, therefore, that a            though the statute says judgment or claim. As this court has
  state petition for post-conviction or other collateral            explained, “[i]t is a basic principle of statutory construction
  review must present a federally cognizable claim for it to        that terms joined by the disjunctive ‘or’ must have different
  toll the statute of limitations pursuant to [§ 2244(d)(2)].       meanings because otherwise the statute or provision would be
                                                                    redundant.” United States v. Hill, 79 F.3d 1477, 1482-83 (6th
Austin, 200 F.3d at 394.                                            Cir. 1996).
  Since our decision in Austin, at least four other circuits          The Ninth Circuit, in Tillema, offers persuasive textual
have wrestled with this particular issue, and all have rejected     analysis on this point.
Austin’s interpretation. See Ford v. Moore, 296 F.3d 1035,
1038-40 (11th Cir. 2002); Sweger v. Chesney, 294 F.3d 506,              The state's argument is plainly wrong. To begin with, the
516-20 (3d Cir. 2002); Carter v. Litscher, 275 F.3d 663, 665-           state's reading of section 2244(d)(2) fails on its own
66 (7th Cir. 2001); Tillema v. Long, 253 F.3d 494, 498-502 &            terms. The words “judgment” and “claim” are used in the
n.10 (9th Cir. 2001). In doing so, our sister circuits presented        disjunctive. Thus, to accept the state's argument would
both textual and policy arguments to support their                      be to render the word judgment “surplusage.” . . . The
interpretation of § 2244(d)(2). We consider each rationale in           text of section 2244(d) makes clear that, in drafting the
turn.                                                                   provision in question, Congress was aware of the
                                                                        distinction between the word “judgment” and the word
                              A                                         “claim,” and did not intend that the first word employed
                                                                        in the provision be ignored.
   In determining statutory meaning, this court looks “first to
the plain language of the statute.” The Ltd., Inc. v. Comm’r,       253 F.3d at 499-500. See also Sweger, 294 F.3d at 517
286 F.3d 324, 332 (6th Cir. 2002). “When a statute is               (“[Austin] fail[ed] to give the words ‘judgment’ and ‘claim’
unambiguous, resort to legislative history and policy               separate meanings despite the fact that the words are
considerations is improper.” Koenig Sporting Goods, Inc. v.         separated in the statute by the disjunctive term ‘or.’”); Carter,
Morse Road Co., 203 F.3d 986, 988 (6th Cir. 2000). “Under           275 F.3d at 665 (“Austin reads the word ‘judgment’ out of
accepted canons of statutory interpretation, we must interpret      § 2244(d)(2) and tolls the time only while a particular ‘claim’
statutes as a whole, giving effect to each word and making          (which Austin took to mean ‘theory of relief’) is before the
every effort not to interpret a provision in a manner that          state court.”).
renders other provisions of the same statute inconsistent,
meaningless or superfluous.” Mitchell v. Chapman, 343 F.3d
No. 02-5499                          Cowherd v. Million        9   10   Cowherd v. Million                            No. 02-5499

  The Warden responds that the opposite approach reads the           opportunity to address the federal issue, but this
word “claim” out of the statute, but Tillema persuasively            exhaustion requirement can be satisfied on direct appeal
shows why that argument fails:                                       as well as on collateral attack. Usually it is preferable to
                                                                     raise the federal question as soon as possible, which
  This construction of section 2244(d)(2) does not, as the           means at trial and on direct appeal. This does not imply,
  state contends, read the word “claim” out of the statute.          however, that state prisoners must proceed immediately
  Although it is true that in most cases a state application         from their direct appeals to federal collateral attacks. A
  that includes a pertinent claim will also, as a matter of          state collateral proceeding based solely on state-law
  course, relate to the pertinent judgment, such will not            issues may avoid the need for federal relief, and a tolling
  always be the case. For example, a claim that a death-row          rule permits prisoners to pursue such theories in state
  inmate is incompetent to be executed does not challenge            court without jeopardizing their ability to raise the
  the validity of the judgment, but only its execution.              federal constitutional issues later in federal court, if that
  Similarly, a claim challenging the unconstitutional                proves to be necessary.
  revocation of “good-time credits,” though cognizable
  only in habeas corpus proceedings, has no bearing on the         Carter v. Litscher, 275 F.3d 663, 665 (7th Cir. 2001) (internal
  underlying judgment of conviction and sentence.                  citations omitted). See also Tillema, 253 F.3d at 501 (“[I]t is
                                                                   clear that our holding will advance, rather than undermine, the
253 F.3d at 500 n.7 (internal citation omitted).                   policies of comity and federalism upon which AEDPA was
                                                                   enacted.”). Thus, Austin would encourage prisoners to file
   We find these textual arguments persuasive. Austin does         federal collateral attacks even though the state post-conviction
not adequately consider the difference between “judgment”          proceedings could potentially make those federal claims
and “claim” in § 2244(d)(2). Thus, the plain meaning of the        unnecessary. We find this policy argument to be persuasive.
statutory text requires us to reject Austin’s interpretation. In   Of course, prisoners are still required to comply with all the
light of this decision, it is unnecessary to reach the question    exhaustion requirements under AEDPA. Tillema, 253 F.3d
of whether Cowherd’s second post-conviction motion should          at 502 (“Our holding does not, of course, in any way alter or
be construed as including a federal claim.                         excuse the fundamental requirement that habeas petitioners
                                                                   must exhaust in state court any claims that they wish to
                               B                                   present in federal court.”).
  Although we need not consider policy arguments because                                          IV
the statute is unambiguous, we note that there are also sound
policy reasons for abandoning Austin. As explained above,            For the reasons stated above, we now overrule Austin v
Austin’s interpretation relied heavily on comity and the           Mitchell, 200 F.3d 391 (6th Cir. 1999). Accordingly, we
exhaustion requirement in 28 U.S.C. § 2254(c). The Seventh         REVERSE the district court’s holding that Cowherd’s claim
Circuit illustrated the shortcomings of these particular policy    was time-barred under the rule of Austin, and REMAND for
arguments:                                                         further proceedings in conformity with this opinion.
  [Austin] is not correct; it confuses tolling with
  exhaustion. A state court must be given the first
