In re: Benedict Cook v.

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