In Re Bowen

Petitioner Edward ONeal Bowen timely filed a petition for the issuance of a writ of habeas corpus in 1999 after exhausting his state remedies on the majority of his claims. Following consideration on the merits, his petition was denied first by the district court, and then by this court. Bowen then returned to state court to pursue post-conviction relief based on, inter alia, ineffective assistance of trial and appellate counsel, which were not exhausted at the time of his original habeas petition. He subsequently filed another petition for habeas relief on those two issues in federal district court in 2004, after our decision in Austin v. Mitchell, 200 F.3d 391 (6th Cir. 2000), but before our decision in Cowherd v. Million, 380 F.3d 909 (6th Cir. 2004) (en banc). Finding that Bowens petition was either second or successive, the district court transferred the petition to this court pursuant to 28 U.S.C. § 1631. For the reasons that follow, we deny Bowens motion to file a petition for writ of habeas corpus in the district court as unnecessary, because his petition is not "second or successive," and transfer his petition to the district court.