                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 07a0585n.06
                            Filed: August 14, 2007

                                        Case No. 03-5681

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT

 RONNIE LEE BOWLING,                                 )
                                                     )
        Petitioner-Appellant,                        )
                                                     )       ON APPEAL FROM THE
                v.                                   )       UNITED STATES DISTRICT
                                                     )       COURT FOR THE EASTERN
 GLENN HAEBERLINE, Warden,                           )       DISTRICT OF KENTUCKY
                                                     )
        Respondent-Appellee.                         )
                                                     )
 _______________________________________             )

BEFORE: MERRITT, BATCHELDER, and COOK, Circuit Judges.

       ALICE M. BATCHELDER, Circuit Judge. Ronnie Lee Bowling appeals from the District

Court for the Eastern District of Kentucky, which dismissed his petition for writ of habeas corpus.

We reverse.

                                                I.

       On March 17, 1989, the Laurel County, Kentucky, grand jury returned a six-count indictment

against Bowling, charging him with the murder of Ronald Smith, burglary and robbery of the Jones

Chevron Station, the murder of Marvin Hensley, and burglary and robbery of the Hensely Spur

Station. A Laurel County jury convicted Bowling on all six counts, and the court sentenced him to

death on the two counts of murder and to twenty-year terms on each count of robbery and burglary.

       On April 24, 1997, the Kentucky Supreme Court affirmed the convictions on direct appeal.

Bowling v. Kentucky, 942 S.W.2d 293 (Ky. 1997) (rehearing denied June 19, 1997), cert. denied 522
U.S. 986 (November 17, 1997). The AEDPA statute of limitations began running on November 18,

1997. Bowling had raised 44 assignments of error and 27 sub-issues. The court concluded: “In this

opinion we have reviewed each of the issues presented by the appellant and conclude that there was

no error of sufficient gravity to warrant reversal of his convictions.” Id. at 308.

        Bowling filed a motion for post conviction relief pursuant to Ky. R. Cr. 11.42, on June 22,

1998. This motion tolled the AEDPA statute of limitations with 216 days of that limitations period

having already expired. On March 21, 2002, the Kentucky Supreme Court affirmed the Laurel

County Circuit Court’s denial of Bowling’s motion. Bowling v. Kentucky, 80 S.W.3d 405 (Ky.

2002) (rehearing denied August 22, 2002), cert. denied 538 U.S. 931 (March 24, 2003). The United

States Supreme Court denied certiorari on March 25, 2003, and on that date, the AEDPA statute of

limitations period began to run again.

        On November 20, 2002, while the AEDPA statute of limitations was still tolled, Bowling

filed a motion for a new trial under Ky. R. Cr. 10.02 and a motion for relief from judgment under

Ky. Civ. R. 60.02.1 Meanwhile, while that motion was pending in state court, Bowling filed a first

petition for writ of habeas corpus in the Eastern District of Kentucky on January 13, 2003. The

district court dismissed the petition without prejudice on February 14, 2003. Bowling filed a motion

to alter or amend judgment pursuant to Fed. R. Civ. Pro. 59(e), which the court construed as a

motion to reconsider. The district court denied the motion on April 23, 2003.

        Bowling appealed to this court on May 23, 2003, from both the February 14, 2003, and the



        1
         On November 18, 2004, the Kentucky Supreme Court affirmed the Laurel County Circuit Court’s denial of
Bowling’s R. Cr. 10.02 and Civ. R. 60.02 motions. Bowling v. Kentucky, 168 S.W .3d 2 (Ky. 2004) (rehearing denied
August 25, 2005), cert. denied 126 S.Ct. 1171 (January 23, 2006). The court concluded that Bowling failed to show
good cause for filing untimely. Id. Because it was untimely, this motion did not toll the AEDPA limitations period.

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April 23, 2003, orders. On June 12, 2003, the district court issued a certificate of appealability,

stating: “The issue that is so certified is whether this Court properly dismissed, without prejudice,

the Appellant’s petition.” Bowling’s AEDPA limitations period expired on August 20, 2003.

                                                  II.

       The district court dismissed Bowling’s habeas petition sua sponte and without notice because

Bowling had pending a state court action against the same judgment of conviction he challenged in

his federal habeas petition. Believing that “judgment” and “claim” are the same thing, the court

surmised that Bowling’s state court action rendered his federal claims unexhausted and his habeas

petition therefore premature, and left Bowling with a choice between either the state or the federal

claims, i.e., Bowling must dismiss the federal petition and pursue the state claims, or else, pursue

the federal petition by forfeiting any other state claims. The district court also concluded that the

state court action would toll the AEDPA statute of limitations because, in its view, Austin was no

longer the law. The district court erred in several respects.

                                                  A.

       “[D]istrict courts are permitted, but not obliged, to consider, sua sponte, the timeliness of a

state prisoner’s habeas petition.” Day v. McDonough, 547 U.S. 198, 126 S.Ct. 1675, 1684 (2006)

(“statute of limitations advances the same concerns as those advanced by the doctrines of exhaustion

and procedural default, and must be treated the same”). “Of course, before acting on its own

initiative, a court must accord the parties fair notice and an opportunity to present their positions.”

Id. The district court erred by dismissing the petition sua sponte and without notice.

                                                  B.

       In the context of federal habeas corpus law, a “judgment” means a judgment of conviction,


                                                  3
28 U.S.C.§2254(a) (“a person in custody pursuant to the judgment of a State court”), while a “claim”

means a “claim of constitutional error” in that judgment, Rose v. Lundy, 455 U.S. 509, 519 (1982).

As the complex web of habeas rules and court decisions demonstrates, a petitioner is often

imprisoned on a single judgment but just as often raises numerous claims of constitutional error to

challenge that judgment. A court must evaluate a habeas petition on the status of its included claims.

       Unexhausted claims. “An application for a writ of habeas corpus on behalf of a person in

custody pursuant to the judgment of a State court shall not be granted unless it appears that the

applicant has exhausted the remedies available in the courts of the State.”              28 U.S.C. §

2254(b)(1)(A). “An applicant shall not be deemed to have exhausted the remedies available in the

courts of the State, within the meaning of this section, if he has the right under the law of the State

to raise, by any available procedure, the question presented.” 28 U.S.C. § 2254(c).

       Mixed petitions - both exhausted and unexhausted claims. “[A] district court must dismiss

such ‘mixed petitions,’ leaving the prisoner with the choice of returning to state court to exhaust his

claims or of amending or resubmitting the habeas petition to present only exhausted claims to the

district court.” Lundy, 455 U.S. at 510. But see Jones v. Parke, 734 F.2d 1142, 1145 (6th Cir. 1984)

(distinguishing a plaintiff’s attempt to raise additional claims); Butler v. Rose, 686 F.2d 1163, 1167

(6th Cir. 1982) (distinguishing a court’s sua sponte assertion of additional claims).

       Exhausted claims. A “court is entitled to delay decision [] when considerations of comity

and judicial economy would be served. However, something more than related claims pending in

state court is needed before the court may dismiss a fully-exhausted petition outright. Such dismissal

has always been difficult to square with the court’s obligation to exercise the jurisdiction given it by

Congress.” Nowaczyk v. Warden, N.H. State Prison, 299 F.3d 69, 83 (1st Cir. 2002).


                                                   4
        Bowling’s federal habeas petition contained only claims that had been fully exhausted in state

court. The fact that he had an independent proceeding pending in state court did not render his

federal petition a mixed petition. Because Lundy applies to mixed petitions, not to petitions

containing only fully exhausted claims, the court’s reliance on Lundy was improper. The court erred

by dismissing the petition and refusing to accept its duly authorized jurisdiction.

                                                    C.

        Rose v. Lundy, 455 U.S. at 510, requires a petitioner who has filed a mixed petition — i.e.,

a petition containing both exhausted and unexhausted claims — to choose between delaying the

federal petition until he has exhausted the unexhausted claims in state court, and pursuing only the

exhausted claims in the first federal petition (i.e., dismissing the unexhausted claims from that

petition); it does not require that the petitioner forfeit pursuit of any unexhausted claims in state court

in order to proceed on a first federal petition containing only distinct and fully exhausted claims.

        In fact, Lundy anticipates that a petitioner might dismiss unexhausted claims from his first

federal petition, proceed on his first federal petition while concurrently exhausting his unexhausted

claims in state court, and then return to federal court with a subsequent petition containing the claims

that had just been exhausted in state court. The dispute among the several writing justices in Lundy

was over the treatment of such a subsequent petition. The plurality explained:

        [A petitioner] can always amend the petition to delete the unexhausted claims, rather
        than returning to state court to exhaust all of his claims. By invoking this procedure,
        however, the prisoner would risk forfeiting consideration of his unexhausted claims
        in federal court [because] a district court may dismiss subsequent petitions if it finds
        that the failure of the petitioner to assert those new grounds in a prior petition
        constituted an abuse of the writ.
        ...
        Thus a prisoner who decides to proceed only with his exhausted claims and


                                                    5
        deliberately sets aside his unexhausted claims risks dismissal of subsequent federal
        petitions.

Id. at 520-21 (plurality) (citations, quotation marks, and edits omitted; emphasis added). To “set

aside” is not to “forfeit,” and “subsequent federal petitions” could only arise after the petitioner has

finally exhausted those other claims in state court. It is evident from any perspective in the Lundy

opinion that the Court expected petitioners to pursue the unexhausted claims in state court and

eventually return to federal court in an attempt to pursue those claims. Another example:

        [In the first instance, the] trial judge cannot rule on the unexhausted issues and
        should dismiss them. But he should rule on the exhausted claims unless they are
        intertwined with those he must dismiss or unless the habeas petitioner prefers to have
        his entire petition dismissed. In any event, if the judge rules on those issues that are
        ripe and dismisses those that are not, I would not tax the petitioner with abuse of the
        writ if he returns with the latter claims after seeking state relief.

Id. at 538 (White, J., concurring in part and dissenting in part) (emphasis added).

        The district court dismissed Bowling’s petition, requiring that he not seek federal habeas

relief until he had either finished every conceivable state court challenge or voluntarily forfeited any

further state court challenges. Lundy does not require a petitioner to forfeit all other claims and the

district court erred in asserting that it does. We do not opine, though, on whether Bowling would

abuse the writ if he ever does bring his current state-court claims to federal court in a successive

petition.

                                                  D.

        Beginning December 28, 1999, the Sixth Circuit rule had been that “a state petition for post-

conviction or other collateral review that does not address one or more of the grounds of the federal

habeas petition in question . . . does not toll the one-year AEDPA statute of limitations.” Austin v.

Mitchell, 200 F.3d 391, 395 (6th Cir. 1999) (overruled on Aug. 19, 2004). Bowling’s earlier state


                                                   6
collateral review (unrecognized by the district court) expired on March 25, 2003, when the Supreme

Court denied certiorari. The pending state collateral review proceeding, the one filed on November

20, 2002, did not address any of the grounds in the federal habeas petition. Based on Austin,

Bowling’s AEDPA limitations period was counting down. Therefore, Bowling had a reasonable

apprehension that the statute of limitations for federal review of these claims would expire.

       Contrary to the district court’s view, Austin was viable and remained viable until August 19,

2004, almost 16 months after the court’s ruling. See Cowherd v. Million, 380 F.3d 909, (6th Cir.

2004) (en banc) (overruling Austin). As this Court has since explained:

       Because Austin implied that state post-conviction proceedings on [a petitioner’s
       unexhausted] claims would not toll AEDPA’s statute of limitation as it applied to his
       already exhausted claims, [the petitioner] had no recourse but to file his exhausted
       claims for federal habeas review before exhausting his remaining claims, as it had
       been nearly one year since he had exhausted his state remedies with regard to those
       claims.

In re Bowen, 436 F.3d 699, 703 (6th Cir. 2006).

       Had Austin not been the law, [the petitioner] would have been required either to
       exhaust all of his claims before filing his first habeas petition in order to bring all his
       exhausted claims at once, or submit all his claims within one year of direct appeal,
       understanding that his unexhausted [] claim would result in the dismissal of his
       petition as mixed. However, given the state of the law in this circuit when [the
       petitioner]’s petition was considered, [the petitioner] was unable to pursue either
       avenue. Under Austin, he risked losing federal review of his exhausted claims due
       to AEDPA’s statute of limitation if he took either approach. Given Austin, if the
       district court had dismissed his mixed petition, the AEDPA statute of limitation
       would have tolled on his exhausted claims, potentially foreclosing review of those
       claims.

Id. at 705. “[A] court is to apply the law in effect at the time it renders its decision.” Landgraf v.

USI Film Prods., 511 U.S. 244, 264 (1994). The district court erred by refusing to follow this

Court’s holding in Austin and dismissing Bowling’s properly filed petition.



                                                   7
                                                 E.

       Younger abstention prevents a federal court from interfering (e.g., issuing an injunction or

granting declaratory relief) with an ongoing state proceeding, except in cases of bad faith or

harassment. Younger v. Harris, 401 U.S. 37, 50 (1971). The district court relied on Younger to

dismiss the petition “[b]ecause there are currently ongoing state court proceedings and because those

proceedings apparently are regarding matters that have also concurrently been brought before this

Court.” But, the matters before the district court were not directly implicated by the on-going state

court proceedings. There was no risk that the federal court would interfere with the state proceeding.

This was not a case in which “the State’s interests in the proceeding [was] so important that exercise

of the federal judicial power would disregard the comity between the States and the National

Government.” See Pennzoil Co. v. Texaco, Inc., 481 U.S. 1, 11 (1987). Therefore, the district court

erred by relying on Younger abstention in this situation.

                                                 III.

       Based on the foregoing, we REVERSE the decision of the district court, REINSTATE the

petition, and REMAND for further proceedings.




                                                  8
          MERRITT, Circuit Judge, concurring. We spend much more time now in habeas cases like

this one discussing arcane, inscrutable points than getting to the real questions that should take up

our time. This is a case in which the District Court became confused about how to apply a series of

legal devices designed to close the door to reviewing constitutional claims on the merits in habeas

cases pending partially in state court and partially in federal court. It is no wonder because the law

is a morass of inconsistent, intersecting doctrines; but I agree with Judge Batchelder’s opinion that

the District Court erred seriously in its effort to avoid deciding the constitutional questions on the

merits.




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