                                                                             RECOMMENDED FOR FULL-TEXT PUBLICATION
4    In re Cook                                  No. 99-6526                      Pursuant to Sixth Circuit Rule 206
                                                                          ELECTRONIC CITATION: 2000 FED App. 0190P (6th Cir.)
                                                                                      File Name: 00a0190p.06
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       UNITED STATES COURT OF APPEALS
of justice. See O’Sullivan v. Boerckel, 119 S. Ct. 1728, 1734                       FOR THE SIXTH CIRCUIT
(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,      In re: BENEDICT JOSEPH

                                                                                       Movant. 
Cook is not making one challenge with multiple stages but          COOK, III,
                                                                                                
has made a second challenge to his state conviction.
                                                                                                
                                                                                                                 No. 99-6526
   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                                      1
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),                               Filed: June 6, 2000
he has not made a prima facie showing that he is entitled to
habeas relief. Therefore, Cook’s motion seeking permission        Before: MERRITT, CLAY, and CUDAHY,* Circuit Judges.
to file a second or successive habeas corpus application under
§ 2254 is DENIED.                                                                        _________________
                                                                                              ORDER
                                                                                         _________________
              ENTERED BY ORDER OF THE COURT
                                                                     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
                  /s/ Leonard Green                               imprisonment. In December of 1996, Cook filed an
              ___________________________________                 application for a writ of habeas corpus under 28 U.S.C.
                       Clerk                                      § 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

                                                                      *
                                                                       The Honorable Richard D. Cudahy, Circuit Judge of the United
                                                                  States Court of Appeals for the Seventh Circuit, sitting by designation.

                                                                                                     1
2      In re Cook                                 No. 99-6526     No. 99-6526                                    In re Cook       3

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