In re Felix Sosa v. , 391 F. App'x 472 ( 2010 )

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION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.
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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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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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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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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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