                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 10a0506n.06

                                                                                           FILED
                                            No. 08-1580                                Aug 13, 2010
                                                                                  LEONARD GREEN, Clerk
                           UNITED STATES COURT OF APPEALS
                                FOR THE SIXTH CIRCUIT

                                                           )
In re: FELIX ERNESTO SOSA                                  )
                                                           )
       Movant.                                             )
                                                           )

BEFORE: SILER and ROGERS, Circuit Judges, and BELL, District Judge.*

       ROGERS, Circuit Judge. State prisoner Felix Ernesto Sosa has applied for leave to file a

second or successive federal habeas petition alleging that his guilty plea was involuntary, his counsel

was ineffective, and his sentence violates the U.S. Constitution. These claims were unexhausted

when Sosa filed his first federal habeas petition based on an exhausted entrapment claim. Sosa’s

current claims are not “second or successive” for purposes of the Antiterrorism and Effective Death

Penalty Act (AEDPA), however, under In re Bowen, 436 F.3d 699 (6th Cir. 2006). Bowen stands

for the proposition that, where an earlier federal habeas petition had been brought during the limited

period when Austin v. Mitchell, 200 F.3d 391, 395 (6th Cir. 1999), was the governing law of the

circuit, a later federal habeas petition bringing claims exhausted in the interim might not be second

or successive under 28 U.S.C. § 2244(b). Under Bowen, Sosa’s motion for permission to file a

second or successive petition is not necessary.

       Sosa pled guilty in a Michigan trial court to conspiracy to deliver more than 650 grams of

cocaine. He received a mandatory sentence of life imprisonment without parole. In his two direct

       *
       The Honorable Robert Holmes Bell, United States District Judge for the Western District
of Michigan, sitting by designation.
No. 08-1580
In re: Sosa

appeals, Sosa requested an entrapment hearing, alleged that his counsel rendered ineffective

assistance by failing to discuss possible defenses with Sosa, moved to withdraw his guilty plea, and

argued that his life sentence was cruel and unusual. The state appellate court granted Sosa an

entrapment hearing, but affirmed the trial court’s refusal to permit Sosa to withdraw his guilty plea,

declined to rule on his ineffective assistance claim, and held that his Eighth Amendment claim had

no merit. People v. Sosa, No. 169934, 1997 WL 33344605 (Mich. Ct. App. Aug. 15, 1997). On

remand, the state trial court concluded that Sosa had not been entrapped. The state appellate court

affirmed this conclusion, and Sosa’s subsequent appeals failed. No. 213737, 1999 WL 33326782

(Mich. Ct. App. Dec. 28, 1999), leave to appeal denied 363 N.W.2d 127 (Mich. 2001).

       In his first federal habeas petition, Sosa claimed entrapment and a related due process

violation. This petition also failed. Sosa v. Jones, No. 02cv71797 (E.D. Mich. Jan. 30, 2003), aff’d

by 389 F.3d 644 (6th Cir. 2004), en banc denied, No. 03-1195, 2005 U.S. App. LEXIS 1751 (6th Cir.

Feb. 1, 2005), cert. denied 546 U.S. 883 (2005).

       Sosa then moved for relief from judgment in state court and argued that his counsel rendered

ineffective assistance and that his sentence was invalid. The state court denied Sosa’s motion as to

the ineffective assistance claim because Sosa did not raise that claim in his first direct appeal and

because Sosa had failed to demonstrate cause and prejudice for this failure. People v. Sosa, No. 90-

43068-FH, at ¶¶ 10-14 (Genesee County Circuit Court June 28, 2006). The state court also stated

that Sosa “failed to demonstrate ineffective assistance of counsel.” Id. at ¶ 15. The state court

denied Sosa’s motion as to the sentencing challenge because “[t]his court exercised its discretion

when imposing [the] sentence,” and it held that “[t]he sentence imposed was valid and contained no

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In re: Sosa

tangible legal or procedural errors.” Id. at ¶¶ 16-17. Sosa’s motion for rehearing and subsequent

state appeals were unsuccessful. No. 90-43068-FH (Genesee County Circuit Court Sept. 19, 2006),

delayed application for leave to file appeal denied, No. 90-43068-FH (Mich. Ct. App. June 19,

2007), application for leave to appeal denied, 741 N.W.2d 314 (Mich. 2007).

        In his present application for leave to file a second or successive habeas petition, Sosa alleges

that (1) his guilty plea was involuntary because the trial judge did not advise him of the minimum

sentence, (2) his counsel rendered ineffective assistance by failing to object to the trial court’s failure

to advise Sosa of the minimum sentence, and (3) his sentence violates his Eighth Amendment, Due

Process, and Equal Protection rights. Sosa argues his petition is not second or successive because

these claims were unexhausted and not ripe when he filed his first federal habeas petition, in light

of Austin which was the controlling precedent of the Sixth Circuit when Sosa filed his first petition.1

        Generally, a state prisoner may not bring a second federal habeas petition without permission

from the court of appeals, even if the second petition raises claims that had not been exhausted at

the time of the first habeas petition. 28 U.S.C. § 2244(b)(3). Instead, at the time of the first petition,

if the petition is not held in abeyance, the petitioner must either forgo unexhausted claims, or

voluntarily dismiss the then-exhausted claims so as later, once all the claims have been exhausted,

to bring all the claims together. Our court recognized this as the general rule in Bowen, 436 F.3d at




        1
         In the alternative, Sosa argues that his claims are permissible grounds for a second or
successive federal habeas petition under 28 U.S.C. § 2244(b)(3) because they are based on a new rule
of constitutional law or facts previously unknown or undiscoverable with due diligence. We do not
reach this argument.

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In re: Sosa

704-705, and more recently the Supreme Court has definitively confirmed that this is the general rule

in Burton v. Stewart, 549 U.S. 147, 154 (2007).

       In Bowen, however, we recognized an exception for the time period in which a Sixth Circuit

case on AEDPA’s statute of limitations made it questionable whether exhausted claims would

survive AEDPA’s one-year statute of limitations if a state prisoner voluntarily dismissed those

claims on federal habeas review so as to exhaust his remaining claims and return later to bring all

the claims together. Bowen, 436 F.3d. at 705. In 1999 we had held in Austin 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.” 200

F.3d at 395. In 2004 we overruled Austin in Cowherd v. Million, 380 F.3d 909, 913-14 (6th Cir.

2004) (en banc), and held that state post-conviction relief tolls AEDPA’s statute of limitations even

if that relief does not raise a federally-cognizable claim. In Bowen we read Austin to have “implied

that state post-conviction proceedings on Bowen’s ineffective assistance claims would not toll

AEDPA’s statute of limitation as it applied to his already exhausted claims,” so that “Bowen had no

recourse but to file his exhausted claims for federal habeas review before exhausting his remaining

claims.” Bowen, 436 F.3d at 703. Otherwise, the court reasoned, the petitioner “risked losing

federal review of his exhausted claims due to AEDPA’s statute of limitation.” Id. at 705. Therefore,

Bowen could file a federal habeas petition raising his ineffective assistance claim. Id. at 706.

Bowen’s logic was explicitly limited to “numerically second petitions of those petitioners who

properly presented federal habeas petitions in district courts in this circuit during the window



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In re: Sosa

between Austin and Cowherd, and had other claims that could not be exhausted concurrently with

those claims.” Id.

       Sosa filed his first federal habeas petition during the Austin-Cowherd window, and the claims

that he seeks to bring now do not appear to be ones that could have been exhausted at the time of the

first petition. Bowen thus leads to the conclusion that Sosa’s petition is not subject to the

requirements of 28 U.S.C. § 2244.

       This result is consistent with Burton, which confirmed the general rule regarding exhaustion

and federal habeas petitions, but which did not address the exception recognized in Bowen based on

circumstances peculiar to the Sixth Circuit. 549 U.S. at 147. The petitioner in Burton raised

exhausted claims challenging his conviction in his first federal habeas petition while           his

unexhausted sentencing claims were pending in state court. Id. at 151. The Court held that AEDPA

barred this petitioner from filing a second federal habeas petition based on those sentencing claims

because he had “elect[ed] to proceed to adjudication of his exhausted claims [in federal habeas

review]” without exhausting all claims, and therefore he could not “later assert that a subsequent

petition is not ‘second or successive’ precisely because his new claims were unexhausted at the time

he filed his first petition.” Id. at 154. Unlike the petitioner in Burton, Sosa did not “elect” to

proceed with only his exhausted claims in his first federal habeas petition—under Austin as

interpreted in Bowen, Sosa had no recourse but to file his exhausted claim before exhausting his

other claims, otherwise he risked losing federal review of his exhausted claims. Burton arose in the

Ninth Circuit, which explicitly rejected Austin, Tillema v. Long, 253 F.3d 494, 502 n.10 (9th Cir.



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2001), so there was no occasion in Burton for the Supreme Court to consider, much less reject, the

reasoning of this court in Bowen.

       For the foregoing reasons, we deny Sosa’s motion to file a petition for writ of habeas corpus

in the district court as unnecessary and transfer his petition to the district court for proceedings

consistent with this opinion.




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