ANDREW DEAN JOHNSON, Petitioner-Appellant, v. CATHERINE S. BAUMAN, Warden, Respondent-Appellee.
No. 20-2181
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
Argued: January 12, 2022; Decided and Filed: February 22, 2022
File Name: 22a0032p.06
RECOMMENDED FOR PUBLICATION Pursuant to Sixth Circuit I.O.P. 32.1(b)
Appeal from the United States District Court for the Eastern District of Michigan at Detroit. No. 2:19-cv-12423—Denise Page Hood, Chief District Judge.
Before: GIBBONS, READLER, and MURPHY, Circuit Judges.
COUNSEL
ON BRIEF: David L. Moffitt, LAW OFFICES OF DAVID L. MOFFITT & ASSOCIATES, PLLC, Bingham Farms, Michigan, for Appellant. Scott R. Shimkus, OFFICE OF THE MICHIGAN ATTORNEY GENERAL, Lansing, Michigan, for Appellee.
READLER, J., delivered the opinion of the court in which MURPHY, J., joined in full, and GIBBONS, J., joined in the judgment. GIBBONS, J. (pg. 18), delivered a separate opinion concurring in the judgment.
CHAD A. READLER, Circuit Judge. Andrew Johnson, a Michigan prisoner, filed a petition for a writ of habeas corpus in federal district court. In his petition, Johnson alleged that his plea and sentencing proceedings in state trial court violated the federal Constitution. Pending before that same state trial court, however, is a postconviction motion for relief, one that raises the same issues Johnson asks the federal courts to resolve in a habeas posture. The district court dismissed Johnson‘s petition due to his failure to exhaust the remedies available to him in state court. We now affirm.
I.
Andrew Johnson pleaded no contest in state court to three state criminal offenses: one count of delivering 50 to 449 grams of cocaine, one count of delivering less than 50 grams of heroin, and one count of possessing marijuana. He was sentenced as a habitual offender pursuant to
In December 2015, Johnson, represented by new counsel, filed a motion for postconviction relief with the state trial court. The motion requested two forms of relief. One, to withdraw Johnson‘s no-contest plea because his trial counsel was ineffective. And two, a resentencing because the trial judge violated Johnson‘s Sixth and Fourteenth Amendment rights by basing his sentence on a fact not admitted or proved beyond a reasonable doubt. A hearing on Johnson‘s motion was set for June 2016. When the prosecution disputed many of the factual claims made in Johnson‘s motion, however, the hearing was cancelled. In March 2017, Johnson filed a discovery motion (and not long thereafter, an amended motion) seeking to compel his trial counsel to produce his case files and sit for an interview with Johnson‘s new counsel. Following a hearing, the trial court granted the discovery motion, ordering Johnson‘s trial counsel to provide the case files, sit for an interview, and appear in person with his files at any future evidentiary hearing. That interview apparently never took place, but Johnson did eventually secure an affidavit from his trial counsel.
Johnson, however, did not file his trial counsel‘s affidavit (or any other evidence) with the state court. And while the trial court clerk, at Johnson‘s request, filed Johnson‘s sentencing and plea transcripts with the trial court, Johnson did not ask the trial court to allow him additional discovery, to set a date for an evidentiary hearing, or to rule on his postconviction motion. Instead, in August 2019, just two months after the filing of his plea and sentencing transcripts, Johnson filed a petition for a writ of habeas corpus in the United States District Court for the Eastern District of Michigan. In his petition, Johnson acknowledged that the state trial court had not yet ruled on his postconviction motion, a fact that ordinarily would mean he had failed to satisfy
The district court dismissed the petition without prejudice. To the district court‘s eye, there was no inordinate delay in state court because any delay was attributable to Johnson, in particular his failure to request an evidentiary hearing in state court. Because it dismissed Johnson‘s petition for failure to exhaust, the district court did not reach the merits of Johnson‘s constitutional arguments.
II.
On appeal, Johnson asks us to grant his petition for a writ of habeas corpus to remedy the state court‘s purported constitutional violations in entering his sentence. The district court did not reach those issues, however, because it believed Johnson had not exhausted the remedies available to him in state court. Because exhaustion “is a threshold question that must be resolved before” a court may grant habeas relief, Wagner v. Smith, 581 F.3d 410, 415 (6th Cir. 2009), that is where we begin, reviewing de novo the district court‘s holding that Johnson failed to satisfy the exhaustion requirement, Pirkel v. Burton, 970 F.3d 684, 691–92 (6th Cir. 2020).
A.
Dubbed the “great and efficacious writ” by Sir William Blackstone, a writ of habeas corpus is in essence an order requiring
One such limitation is set forth in
B.
Like many rules, however,
1. In interpreting Congress‘s command in
2. Our reading of the text is further informed by background principles of federal habeas jurisprudence that predate the exhaustion requirement‘s codification in 1948. “Existing law,” the Supreme Court has explained, “was made a part of [§ 2254].” Young v. Ragen, 337 U.S. 235, 238 n.1 (1949); see also Sekhar v. United States, 570 U.S. 729, 732 (2013) (“‘It is a settled principle of interpretation that ... Congress intends to incorporate the well-settled meaning of the common-law terms it uses.’ (quotation omitted)); United States v. Texas, 507 U.S. 529, 534 (1993) (“[L]ongstanding is the principle that statutes ... are to be read with a presumption favoring the retention of long-established and familiar principles.” (quotation omitted)). (That point is reflected in a reviser‘s note to
Prior to
In practice, these “special circumstances” were few and far between. Prior to the enactment of
The second exception excused a petitioner‘s failure to exhaust when the state court process was “under the domination of a mob” and, as a result, provided “only the form of a court” without the substance. Ashe v. United States ex rel. Valotta, 270 U.S. 424, 426 (1926) (Holmes, J.); see also Moore v. Dempsey, 261 U.S. 86, 87, 91–92 (1923) (Holmes, J.) (remanding for an evidentiary hearing because the petitioners’ allegations that they were “convict[ed] under the pressure of a mob,” if true, made their trial “absolutely void“); Frank v. Mangum, 237 U.S. 309, 350 (1915) (Holmes, J., dissenting) (declaring it is the “duty” of a federal court to “declare lynch law as little valid when practiced by a regularly drawn jury as when administered
3. As these background principles make clear, the plain text of
C.
Despite these straightforward textual commands and a deep body of case law excusing a petitioner‘s failure to exhaust only in narrow circumstances, over time the federal appellate courts have crafted a test for excusing a failure to exhaust that in many respects is unfaithful to Congress‘s formulation in
Where did this exception come from? Not the pre-1948 era, it seems. As a historical matter, no federal court, to our knowledge, ever excused a state prisoner‘s failure to exhaust merely due to delay in state court proceedings. Cf. Markuson v. Boucher, 175 U.S. 184, 185 (1899) (declining to excuse the petitioner‘s failure to exhaust when he alleged that his one-year sentence would be completed before he could fully exhaust); Baker v. Grice, 169 U.S. 284, 293 (1898) (declining to excuse the petitioner‘s failure to exhaust even though the state had “omi[tted] to move the case for [a new] trial” and the “defendant was eager and anxious for trial” but was out on bail and had not made “such anxiety and
By all accounts, the “inordinate delay” standard is more a product of judicial decision making (and confused decision making at that) than an effort to interpret a statutory text. Consider, on this point, our own Court‘s experience with the inordinate delay exception. Our seminal case in the area, Workman v. Tate, borrowed the exception from earlier decisions of the Third and Tenth Circuits. 957 F.2d at 1344. Those courts, for their part, justified the exception on the twin considerations that the exhaustion requirement “does not limit the jurisdictional power of the court to issue a writ,” Codispoti v. Howard, 589 F.2d 135, 140 (3d Cir. 1978), and that the “delay of the post-conviction remedy may very well work a denial of due process,” Kelly v. Crouse, 352 F.2d 506 (10th Cir. 1965) (per curiam). Neither circuit, however, purported to derive those notions from the text of
Fay, as well as the cases that purportedly followed Fay, together illustrate the perils of courts not adhering to legislative commands. See The Federalist No. 51 (Alexander Hamilton) (emphasizing the separation of powers); Federalist No. 78, at 427 (Alexander Hamilton) (E.H. Scott ed., 1898) (explaining that courts interpret laws, not make them). Consider, on this point, that Fay neither interpreted the relevant statutory text nor mentioned an inordinate delay standard, let alone purported to draw that standard from the text. Instead, it employed a purposivist reading of the habeas statute to conclude that the “flexible concept” of “discretion” is the core factor in applying the habeas exhaustion rule. Fay, 372 U.S. at 438. And in the aftermath of Fay, lower federal courts leaned on this “flexible” notion of “discretion” to invent the inordinate delay exception. The first decision to suggest such an exception came 17 years after
Judicial discretion must give way to legislative command. With Congress having articulated statutory exhaustion requirements in
III.
Courts tempted to define statutory requirements using non-statutory terms often struggle to determine the meaning of those non-statutory terms. Our Court‘s invocation of the nonstatutory term “inordinate delay” is a prime example, as we have yet to explicitly define the term. Our cases, however, make two things clear with respect to the term‘s meaning. One, we have never held that a petitioner demonstrated “inordinate delay” through delay alone. See Allen v. Dutton, 41 F.3d 1506, at *2 (6th Cir. 1994) (Unpublished Table Decision) (collecting cases) (“[D]elay in a state court in and of itself is usually not sufficient to merit federal intervention.“); see also Lee v. Stickman, 357 F.3d 338, 341 (3d Cir. 2004) (“The existence of an inordinate delay does not automatically excuse the exhaustion requirement.“); Jones v. Solem, 739 F.2d 329, 331 (8th Cir. 1984) (same); Coe v. Thurman, 922 F.2d 528, 531 (9th Cir. 1990) (“We cannot definitely say how long is too long in a system where justice is supposed to be swift but deliberate.” (quoting Barker v. Wingo, 407 U.S. 514, 521 (1972))). And two, a failure to exhaust may be excused only if the state is responsible for the delay. See Workman, 957 F.2d at 1344 (finding excusal appropriate “especially where, as here, the state clearly is responsible for the delay“); see also Turner v. Bagley, 401 F.3d 718, 726 (6th Cir. 2005) (“[T]he ultimate responsibility for such circumstances ... must rest with the government rather than with the defendant.” (quoting Barker, 407 U.S. at 531)); Deters v. Collins, 985 F.2d 789, 796 (5th Cir. 1993) (“[C]ourts are to excuse noncompliance with the exhaustion doctrine only if the inordinate delay is wholly and completely the fault of the state.” (emphasis in original)).
Although the inordinate delay standard on its face appears to displace the exhaustion doctrine incorporated into
Measured against this backdrop, Johnson‘s request to excuse his failure to exhaust is meritless. Johnson believes his case presents exceptional circumstances because the state court has purportedly delayed resolution of his postconviction motion. But delay, standing alone, has never been enough. See Allen, 41 F.3d 1506, at *2. And at most, less than four years elapsed between the date Johnson filed his initial postconviction motion in state court and the date he filed his habeas petition in the district court. That span of time is one way we have measured delay in state court proceedings. See Phillips, 851 F.3d at 574, 576 (calculating “delay” as the time between the filing of a petitioner‘s motion for postconviction relief and the filing of his federal habeas petition). But within that period, the state court did not sit idle. It set a hearing date, received a response from the prosecution that disputed many of the factual claims in Johnson‘s postconviction motion, and then granted Johnson‘s motion seeking discovery to develop his ineffective assistance of counsel claim. In that sense, the relevant period in state court for purposes of measuring “delay” was roughly two years—the period between the state court‘s order granting Johnson‘s discovery motion and Johnson‘s habeas filing. See Allen, 41 F.3d 1506, at *2 (noting time since the most recent order in the case). On balance, neither time period is particularly striking when considered against the backdrops of both post-sentencing litigation, which often proceeds incrementally, and the much longer gaps we have addressed in some of our other inordinate delay cases. See, e.g., Phillips, 851 F.3d at 576 (six year delay between state court postconviction motion and federal habeas petition); Turner, 401 F.3d at 726 (eight year delay). More to the point, a gap of only a few years seems trivial when compared to the historical benchmarks for excusing a failure to exhaust—mob justice or the need to vindicate an overriding federal interest—both of which, unlike mere delay, render a state court process entirely incapable of affording adequate relief. See, e.g., Ashe, 270 U.S. at 426; Whitten, 160 U.S. at 241–42.
Even if we believed these rather routine developments amounted to some manner of “delay,” that delay is “inordinate” only if the state is clearly the responsible party. Workman, 957 F.2d at 1344; Turner, 401 F.3d at 726. Here, that is not the case. Yes, Johnson‘s postconviction motion was not fully resolved at the time he sought federal habeas relief. But Johnson identifies no evidence to suggest that the state court interfered with Johnson‘s ability to obtain that resolution. When Johnson filed his postconviction motion, the state court
As this record reflects, to the extent the state court proceedings were delayed, there is no indication that the state is “clearly ... responsible.” Workman, 957 F.2d at 1344. Both the prosecution and the state court were responsive to Johnson‘s requests, leaving the ball, so to speak, in Johnson‘s court. Once his plea and sentencing transcripts were filed with the court and he secured an affidavit from his trial counsel, Johnson could have either requested more discovery, requested an evidentiary hearing, or notified the court that he was ready to proceed to the merits of his postconviction motion. But rather than take any of those steps, Johnson instead brought his case to federal court, filing a habeas petition just two months after the state court clerk filed his sentencing and plea transcripts. Throughout his federal proceeding, Johnson conspicuously has failed to explain why he took the extraordinary step of seeking a federal habeas remedy without first seeking further development or resolution of his claim in state court. Suffice to say,
His unusual litigation choices notwithstanding, Johnson believes that his case is “materially indistinguishable” from three prior cases in which we have excused a petitioner‘s failure to exhaust: Phillips, 851 F.3d 567, Turner, 401 F.3d 718, and Workman, 957 F.2d 1339. But as noted earlier, these cases, consistent with the text of
The state‘s behavior was perhaps most egregious in Workman. There, a state trial
The state‘s behavior here is nothing like the obstinate and contemptible conduct in Workman. And measured against the petitioners in these earlier cases, Johnson‘s efforts have been minimal. Beyond his initial postconviction motion, he has filed only a discovery motion. The state court granted that latter motion, but Johnson did not follow up. That is a far cry, for instance, from the “frequent [and] unavailing” efforts of the petitioner in Turner, who repeatedly implored his attorneys to act on his case and, receiving no response, filed a motion to proceed pro se. 401 F.3d at 725–26. Equally true, had the state court ruled on Johnson‘s motion without allowing him to gather the discovery he requested, that ruling may well have been premature, prompting Johnson to file yet another motion for relief. Nor, for that matter, is Johnson “without recourse in state court,” id. at 726; he remains free to seek further evidentiary developments or a merits ruling from the state court.
* * * * *
All things considered, Johnson‘s case is not the extreme instance in which circumstances beyond his control have left him “incapable” of remedying the constitutional violations he alleges. That being so, excusing his failure to exhaust would be at odds with both the carefully tailored legal regime envisioned by Congress as well as the pre-statutory standards that serve as the foundation for that regime. Section 2254(b)‘s exhaustion requirement, remember, promotes comity with state courts. Allen, 953 F.3d at 866. It ensures that a federal court, sitting in a habeas posture, has the benefit of the state court‘s reasoned judgment, to which we afford great deference. See
We affirm the district court‘s dismissal of Johnson‘s petition.
CONCURRING IN THE JUDGMENT
GIBBONS, Circuit Judge, concurring in the judgment. I agree that we should affirm the district court‘s dismissal of Johnson‘s petition because Johnson failed to show the exhaustion requirement should be excused for inordinate delay. However, I disagree with the majority‘s implication that the inordinate delay doctrine is somehow inconsistent with
Ultimately, I concur in the judgment because Johnson has not shown the inordinate delay excuse applies to his case. The state court record shows progress, including granting his discovery motion. However, instead of seeking further relief in state court, Johnson turned to federal court. While the state court certainly bears blame for allowing a pending motion to languish on its docket since 2015, Johnson did not diligently pursue his claims. I agree that Johnson has not shown an inordinate delay such that he is “without recourse in state court” warranting excusal of the exhaustion. Turner, 401 F.3d at 726. Therefore, I concur in the judgment.