                           STATE OF MICHIGAN

                            COURT OF APPEALS

DEBORAH FUQUA, also known as DEBORAH                                   UNPUBLISHED
FUQUA-FREY,                                                            July 12, 2018

               Plaintiff-Appellant,

v                                                                      No. 336418
                                                                       Wayne Circuit Court
DAVID GOLDSTEIN,                                                       LC No. 15-016748-NM

               Defendant-Appellee.

Before: BORRELLO, P.J., and SHAPIRO and TUKEL, JJ.

PER CURIAM.

        In this civil matter raising claims against an attorney, plaintiff appeals as of right from the
trial court’s order that granted summary disposition of Count IV of her first amended complaint
against defendant and rejected her second amended complaint as improperly filed. The trial
court previously granted summary disposition in defendant’s favor with respect to the four other
counts of plaintiff’s amended complaint. The trial court also denied plaintiff’s motions to
reconsider both of these decisions. We affirm in part, reverse in part, and remand for further
proceedings.

                                         I. BASIC FACTS

       Plaintiff retained defendant to obtain mortgage modifications through filing for
bankruptcy. Defendant indeed filed a petition for bankruptcy on plaintiff’s behalf in the United
States Bankruptcy Court for the Eastern District of Michigan. The attorney-client relationship
devolved, however, causing defendant to seek to withdraw from the matter. At a hearing held on
December 19, 2013, plaintiff, through her then-boyfriend (now current husband), David Frey,
represented to the judge presiding over the bankruptcy proceeding that she no longer wanted
defendant to represent her. The judge stated that he would permit defendant to withdraw. An
order memorializing this decision was entered four days later, on December 23, 2013.

        Plaintiff filed the instant suit on December 22, 2015. After defendant moved for
summary disposition, plaintiff filed an amended complaint raising five counts. The trial court
ruled that four of these five counts sounded in legal malpractice. The trial court further held that
any such malpractice claim accrued on December 19, 2013, the date the bankruptcy judge held
the hearing regarding defendant’s withdrawal. Thus, the trial court dismissed these counts

                                                 -1-
(Counts I, II, III, and V)1 of the amended complaint, finding that the two-year statute of
limitations applicable to malpractice claims, MCL 600.5805(6), had expired three days before
plaintiff filed suit. The trial court directed defendant to either file an answer to Count IV of the
amended complaint or file a second dispositive motion addressing that count. Defendant then
sought summary disposition on the remaining Count IV (labeled “Collusion”), and the trial court
ultimately granted the motion. The trial court rejected plaintiff’s motions for reconsideration of
its decisions and also plaintiff’s attempt to amend her complaint a second time without leave of
the court to do so. The instant appeal followed.

                                 II. SUMMARY DISPOSITION

        Because, when the trial court granted defendant’s motion for summary disposition, it was
ruling on the validity of plaintiff’s claims contained in her first amended complaint, that is the
complaint we will address.

                           A. PLAINTIFF’S MALPRACTICE CLAIM

        Plaintiff first argues that the trial court erred when it concluded that her legal malpractice
claim (or claims) accrued on December 19, 2013, rendering her complaint, at least to the extent it
alleges legal malpractice, untimely. We conclude that any legal malpractice claims accrued on
December 19, 2013, which means that plaintiff raising any such claims on December 22, 2015
was untimely.

        “This Court reviews the grant or denial of summary disposition de novo to determine if
the moving party is entitled to judgment as a matter of law. In making this determination, the
Court reviews the entire record to determine whether defendant was entitled to summary
disposition.” Maiden v Rozwood, 461 Mich 109, 118; 597 NW2d 817 (1999). “Whether a claim
is barred by a statute of limitations is a question of law that this Court reviews de novo.” Scherer
v Hellstrom, 270 Mich App 458, 461; 716 NW2d 307 (2006). A motion for summary disposition
challenging whether a claim is barred by the applicable statute of limitations is properly brought
under MCR 2.116(C)(7). Levy v Martin, 463 Mich 478, 489 n 19; 620 NW2d 292 (2001).

              A party may support a motion under MCR 2.116(C)(7) by affidavits,
       depositions, admissions, or other documentary evidence. If such material is
       submitted, it must be considered. MCR 2.116(G)(5). Moreover, the substance or
       content of the supporting proofs must be admissible in evidence. Unlike a motion
       under subsection (C)(10), a movant under MCR 2.116(C)(7) is not required to file
       supportive material, and the opposing party need not reply with supportive
       material. The contents of the complaint are accepted as true unless contradicted
       by documentation submitted by the movant. [Maiden, 461 Mich at 119 (citation
       omitted).]

1
  Count I was for professional malpractice, Count II was for breach of contract, Count III was for
fraud and misrepresentation, and Count V was for breach of fiduciary duty.

                                                 -2-
        A claim alleging legal malpractice must be brought either within two years after the claim
first accrued or within six months after the plaintiff discovered or should have discovered the
existence of the claim. MCL 600.5805(6); MCL 600.5838(1) and (2); Kloian v Schwartz, 272
Mich App 232, 235; 725 NW2d 671 (2006). In this matter, plaintiff’s suit was filed on
December 22, 2015. Defendant argues that the suit alleges only legal malpractice, and that the
claim accrued on December 19, 2013, thus making her suit three days too late.2 Plaintiff
contends that to the extent her suit alleges legal malpractice, any such claim accrued on
December 23, 2013, making her complaint timely.3 The trial court agreed with defendant, and
was correct to do so.

       Pursuant to MCL 600.5838(1):

       Except as otherwise provided in [MCL 600.]5838a or [MCL 600.]5838b, a claim
       based on the malpractice of a person who is, or holds himself or herself out to be,
       a member of a state licensed profession accrues at the time that person
       discontinues serving the plaintiff in a professional or pseudoprofessional capacity
       as to the matters out of which the claim for malpractice arose, regardless of the
       time the plaintiff discovers or otherwise has knowledge of the claim.

        “Special rules have been developed in an effort to determine exactly when an attorney
‘discontinues serving the plaintiff in a professional . . . capacity’ for purposes of the accrual
statute.” Kloian, 272 Mich App at 237. “For example, this Court has stated that an attorney’s
representation of a client generally continues until the attorney is relieved of that obligation by
the client or the court.” Id, citing Mitchell v Dougherty, 249 Mich App 668, 683; 644 NW2d 391
(2002) (emphasis added). In Hooper v Lewis, 191 Mich App 312; 477 NW2d 114 (1991), the
plaintiff, Joseph C. Hooper, Jr., had retained an attorney to represent him in an estate matter. Id.
at 313. A settlement was reached, but a dispute arose between Hooper, his attorneys, and the
bank responsible for preparing final accountings. Id. On June 17, 1986, Hooper wrote his
attorneys and explained that they were no longer authorized to act on his behalf. Id. at 313-314.
The attorneys then moved to withdraw from the matter, and on October 9, 1986, the trial court
entered an order permitting the withdrawal. Id. at 314. Hooper filed suit for malpractice on
October 6, 1988. Id.

         Hooper contended, as does plaintiff here, that the claim accrued “when the [trial] court
entered the order allowing withdrawal.” Id. Hooper’s former attorneys contended that any
malpractice claim accrued months earlier, “no later than June 17, 1986, when [Hooper] wrote the
letter effectively discharging the firm.” Id. The trial court agreed that the suit was untimely, and

2
  No party contends that the six-month “discovery rule,” see Kloian, 272 Mich App at 235, is
applicable in this case.
3
  The nature of plaintiff’s various claims is a separate question discussed later in this opinion.
But as will be discussed, only Count I of plaintiff’s amended complaint states a claim of legal
malpractice. Thus, the discussion of the date plaintiff’s legal malpractice claim accrued is
relevant only to Count I of plaintiff’s amended complaint.

                                                -3-
this Court affirmed. Id. at 314-315. This Court held that “[a]n attorney discontinues serving a
client, for purposes of the statute of limitations, when then attorney is relieved of the obligation
to serve by either the client or the court.” Id. at 315 (emphasis added). This rule governed
notwithstanding the parties’ retainer agreement, which provided that “ ‘termination by Client
pursuant to this paragraph shall not be effective until Client has approved a Stipulation and an
Order allowing Attorney to withdraw as counsel of record in any legal proceedings within the
scope of this Agreement.’ ” Id. As a result, even in light of the parties’ contract, the attorneys
were discharged in June 1986 for purposes of the statute of limitations, when Hooper terminated
their authority to represent him. Id. at 315-316. Importantly, “[n]o additional court action was
necessary to effectuate that discharge.” Id. at 316.

        Hooper controls the outcome in the present matter. At a hearing in federal bankruptcy
court held on December 19, 2013, plaintiff, through Frey, represented to the court that she no
longer wanted defendant to represent her in the bankruptcy matter. The bankruptcy judge
explained that he would “grant the motion to permit [defendant] to withdraw and that’s without
any prejudice to what other claims [plaintiff] may have against him.” Clearly, the professional
relationship was over at that point. Plaintiff discharged defendant on December 19, 2013, and
“[n]o additional court action was necessary to effectuate that discharge.” Id. The fact that a
written order granting the motion was not entered until four days later is simply not relevant. Id.

        Consequently, because plaintiff’s original complaint was filed more than two years after
any claim for malpractice accrued, those claims are barred by the statute of limitations.

                              B. PLAINTIFF’S OTHER CLAIMS

       Plaintiff next argues that the trial court erred by dismissing Counts II through V of her
amended complaint based on its conclusion that Counts II, III, and V were mislabeled claims of
legal malpractice. We agree.

       To the extent the trial court’s decisions rest on a determination that the claims were
barred because they all sounded in malpractice and were therefore time-barred, we construe the
motion as having been decided pursuant to MCR 2.116(C)(7). See Bryant v Oakpointe Villa
Nursing Centre, 471 Mich 411, 419; 684 NW2d 864 (2004). To the extent the trial court’s
decision rested on an examination of whether the complaint stated a claim upon which relief
could be granted (i.e., the legal sufficiency of the allegations of the complaint), we view the
motion as having been decided under MCR 2.116(C)(8). Maiden, 461 Mich at 119-120. As our
Supreme Court explained in Maiden:

               A motion under MCR 2.116(C)(8) tests the legal sufficiency of the
       complaint. All well-pleaded factual allegations are accepted as true and construed
       in a light most favorable to the nonmovant. A motion under MCR 2.116(C)(8)
       may be granted only where the claims alleged are so clearly unenforceable as a
       matter of law that no factual development could possibly justify recovery. When
       deciding a motion brought under this section, a court considers only the pleadings.
       [Quotation marks and citations omitted.]

                                                -4-
        “Courts are not bound by the labels that parties attach to their claims.” Buhalis v Trinity
Continuing Care Servs, 296 Mich App 685, 691; 822 NW2d 254 (2012). “[I]t is well settled that
the gravamen of an action is determined by reading the complaint as a whole, and by looking
beyond mere procedural labels to determine the exact nature of the claim.” Id. at 691-692
(quotation marks and citation omitted). Thus, while plaintiff’s amended complaint ostensibly
pleaded five different counts under five different theories, this Court must examine the substance
of each count to determine what is truly alleged. Ultimately, the question is whether plaintiff’s
complaint pleads anything other than legal malpractice. The elements of legal malpractice are
“(1) the existence of an attorney-client relationship,” “(2) negligence in the legal representation
of the plaintiff,” “(3) that the negligence was a proximate cause of an injury,” and “(4) the fact
and extent of the injury alleged.” Bowden v Gannaway, 310 Mich App 499, 503; 871 NW2d 893
(2015) (quotation marks and citation omitted; emphasis added). We conclude that the trial court
erred because it failed to recognize that Counts II, III, and V of the complaint do not simply
allege negligence but, rather, intentional and other conduct by defendant that caused harm to
plaintiff.

       Plaintiff titled her first count as alleging malpractice and breach of fiduciary duty.
However, she does not dispute that this count is truly a claim of legal malpractice. As already
discussed, the two-year statute of limitations stated in MCL 600.5805(6) applies, and the claim
accrued on December 19, 2013, making plaintiff’s complaint, which was filed on December 22,
2013, untimely. Accordingly, the trial court properly dismissed this count of the complaint.

       Count II of the amended complaint is titled as a claim for breach of contract. Plaintiff
alleged that in her retention agreement with defendant, she “specifically contracted with
Defendant to obtain mortgage modifications aka cram downs” for plaintiff. Plaintiff further
alleged that defendant breached the agreement by filing for Chapter 7 bankruptcy, despite
knowing that plaintiff could only obtain mortgage modifications by filing for Chapter 13
bankruptcy, rather than Chapter 7 bankruptcy.

        Generally, “claims against attorneys brought on the basis of inadequate representation
sound in tort and are governed by the malpractice statute of limitations, even though a plaintiff
may assert that the attorney’s actions breached a contract.” Aldred v O’Hara-Bruce, 184 Mich
App 488, 490; 458 NW2d 671 (1990). Attorneys may be held liable under a breach-of-contract
theory, but only when the attorney has breached a “special agreement” to perform a specific act.
Brownell v Garber, 199 Mich App 519, 524-526; 503 NW2d 81 (1993); Barnard v Dilley, 134
Mich App 375, 378; 350 NW2d 887 (1984). In Brownell, this Court explained:

       “A lawyer is not an insurer of the result in a case in which he is employed, unless
       he makes a special contract to that effect, and for that purpose. Neither is there
       any implied contract, when he is employed in a case, or any matter of legal
       business, that he will bring to bear learning, skill, or ability beyond that of the
       average of his profession. Nor can more than ordinary care and diligence be
       required of him, without a special contract is made requiring it.” [Brownell, 199
       Mich App at 525, quoting Babbitt v Bumpus, 73 Mich 331, 337-338; 41 NW 417
       (1889) (emphasis added).]

                                                -5-
        If one glosses over the specific allegations of plaintiff’s amended complaint, one would
be left with the general impression that plaintiff is alleging that defendant failed to provide
competent services in that he chose the wrong chapter under which to file bankruptcy.4 If read in
this manner, the complaint would seem to allege no more than negligent representation by
defendant—or in other words, legal malpractice. Bowden, 310 Mich App at 503; Brownell, 199
Mich App at 526.

        However, plaintiff’s complaint goes beyond simply alleging that defendant was
negligent. Instead, plaintiff alleges that she informed defendant when they first met that her sole
purpose in declaring bankruptcy was to obtain mortgage modifications. Plaintiff alleged she
“specifically contracted with Defendant to obtain mortgage modifications,” which defendant
would obtain by filing under “the proper bankruptcy” chapter. She alleged that defendant
breached this agreement when he filed under Chapter 7, which did not allow for such mortgage
modifications.

        We conclude that plaintiff has pleaded a breach of contract claim against defendant.
Taken as a whole, plaintiff did not allege that defendant simply made an error or “failed to
exercise the requisite skill” in his representation of plaintiff. Brownell, 199 Mich App at 524.
Rather, plaintiff alleges that defendant agreed to perform a specific task: “to obtain mortgage
modifications.” However, according to plaintiff’s complaint, defendant’s actions (filing Chapter
7 bankruptcy) made it impossible to obtain the desired result. Thus, plaintiff’s complaint does
not simply allege that defendant’s negligence resulted in an undesirable outcome, as would be
the case in an ordinary legal malpractice suit. Id. Rather, the complaint alleges that defendant
warrantied that plaintiff would obtain the result she desired when in reality defendant knew that
was untrue. Thus, the complaint alleges the type of promise discussed in Brownell and
Babbitt—a promise that a specific result could be obtained—that properly pleads a claim of
breach of contract against an attorney. As a properly pleaded claim of breach of contract, the
statute of limitations applicable to malpractice claims does not apply.

        The limitations period for a breach of contract claim is 6 years. MCL 600.5807(8);
Miller-Davis Co v Ahrens Const, Inc, 489 Mich 355, 357; 802 NW2d 33 (2011). Thus, because
plaintiff retained defendant in May 2012, it is clear that the six-year limitations period had not
lapsed by the time plaintiff filed her complaint in December 2015, and the trial court erred when
it dismissed this count on the basis that it was time-barred.

4
  Indeed, plaintiff in her amended complaint also alleges that defendant agreed to “file the proper
bankruptcy to obtain mortgage modifications for Plaintiff.” While this particular allegation
appears to sound in malpractice because the “agreement” merely is for defendant to do
something “proper[ly],” as opposed to agreeing to achieve a particular result, this is not fatal to
plaintiff’s claim. That is because in reviewing a motion under MCR 2.116(C)(8), we must view
the complaint in its entirety and in a light most favorable to plaintiff. Maiden, 461 Mich at 119.
In this case, plaintiff also alleged that defendant specifically agreed to obtain mortgage
modifications for her, which is a contract for a particular result.

                                                -6-
         The trial court also failed to appreciate the true nature of plaintiff’s third count, which
alleges fraud in the form of an intentional misrepresentation. A claim of fraudulent
misrepresentation requires proof of six elements: (1) that the defendant made a material
representation, (2) that was false, (3) that the defendant knew the representation was false, or
made it “recklessly, without any knowledge of its truth, and as a positive assertion[,]” (4) that the
defendant intended the plaintiff to act in reliance on the representation, (5) that the plaintiff did,
in fact, act in reliance on the representation, and (6) that the plaintiff suffered injury as a result.
Hord v Environmental Research Institute of Mich, 463 Mich 399, 404; 617 NW2d 543 (2000).
Plaintiff’s amended complaint alleges:

       27. Defendant advised Plaintiff and placed her in a [C]hapter 7 bankruptcy with
       full knowledge that she would not be able to obtain mortgage modifications aka
       cram downs with the bank that she contracted with Defendant to do and that
       ultimately she would lose her houses.

       28. Defendant stated when Plaintiff was considering retaining him that she only
       qualified for a [C]hapter 7 and that she could obtain mortgage modifications aka
       cram downs through a [C]hapter 7 when he had fill [sic, full] knowledge that she
       could not do so.

       29. Defendant knowingly made this statement knowing that it was a material
       misrepresentation.

       30. Defendant knowingly made this statement knowing that it was a false
       representation.

       31. At the time Defendant made the statement he did so knowing it was false, or
       he made it recklessly, without knowledge of it’s [sic] truth and as a positive
       assertion.

       32. Defendant made it at the time with the intent that Plaintiff should act thereon.

       33. Plaintiff acted thereon [sic] Defendant’s representation in reliance thereon
       and was injured as a result of her detrimental reliance causing her financial and
       emotion[al] damages among other damages.

        Clearly, plaintiff’s complaint tracks the elements of fraud. Plaintiff alleges that defendant
made a misrepresentation (that she could obtain mortgage modifications by filing for Chapter 7
bankruptcy), knowing this statement was false, and intending that plaintiff rely on the statement.
Plaintiff alleges that she relied on the statement (i.e., she filed for Chapter 7 bankruptcy), and
that by doing so, she suffered injury. These are precisely the sort of allegations to plead a claim
of fraudulent misrepresentation. Hord, 463 Mich at 404.

        In Brownell, this Court explained that “the interest involved in a claim for damages
arising out of a fraudulent misrepresentation differs from the interest involved in a case alleging
that a professional breached the applicable standard of care. Simply put, fraud is distinct from
malpractice.” Brownell, 199 Mich App at 532. “Fraud is no less actionable because it is

                                                 -7-
committed by an attorney with whom the plaintiff has an attorney-client relationship.” Id.
“[W]hen a complaint alleges not only malpractice but also all the necessary elements of fraud,
the statute of limitations governing fraud actions will apply to the fraud count and, if such count
is not barred, the plaintiff may proceed on that cou[n]t to collect damages proximately caused by
the alleged fraud.” Id. at 533. In Barnard, this Court found that the plaintiff had stated an
actionable claim for fraud by contending that the defendant either knew a property settlement
would have adverse tax consequences but represented otherwise to the plaintiff, or never
investigated the tax consequences of the settlement “notwithstanding explicit representations to
the contrary.” Id. at 533-534. Similarly, in this case, plaintiff alleged that she was misled by an
attorney who, although he knew it to be false, told plaintiff that she could obtain mortgage
modifications by filing for Chapter 7 bankruptcy. Plaintiff stated a claim for fraud, and thus, the
statute of limitations for legal malpractice claims does not control Count III of the amended
complaint. Indeed, the period of limitations for a claim of fraud is six years. See Kuebler v
Equitable Life Assurance Society of the US, 219 Mich App 1, 6; 555 NW2d 496 (1996), citing
MCL 600.5813. Accordingly, the trial court erred when it dismissed this count on the basis of
the claim being time-barred.

        Before examining plaintiff’s fourth count, we address Count V of the amended
complaint, which is titled as one alleging a breach of fiduciary duty. In this count, plaintiff
alleges:

       41. Defendant had a fiduciary duty as a member of the State Bar separate from
       the attorney[-]client relationship and not to mislead and intentionally misrepresent
       Plaintiff into believing that filing a [C]hapter 7 bankruptcy would accomplish her
       goal of obtaining mortgage modifications aka cram downs on her real estate
       mortgages and allow her to restructure her financial affairs and retain ownership
       of her real estate properties.

       42. Defendant made these intentional misrepresentations with full knowledge that
       Plaintiff could not obtain mortgage modifications aka cram downs in a [C]hapter
       7 and with full knowledge that she would ultimately lose her real estate properties
       through foreclosure, her future income stream of rental income, and that she
       would end up in a worse financial position than when she first interviewed
       defendant.

       43. Defendant breached these fiduciary duties when he lied to Plaintiff and
       induced her to retain him on the pretext that she did not qualify to file either a
       [C]hapter 11, or 13, and that she could accomplish her objectives by filing a
       [C]hapter 7.

       44. Plaintiff was injured as a result of her reliance on Defendant’s false
       representations.

        As this Court explained in Prentis Family Foundation v Barbara Ann Karmanos Cancer
Inst, 266 Mich App 39, 43-44; 698 NW2d 900 (2005):

                                                -8-
               When a fiduciary relationship exists, the fiduciary has a duty to act for the
       benefit of the principal regarding matters within the scope of the relationship.
       Whether a duty exists is a question of law for the court to decide. A fiduciary
       relationship arises from the reposing of faith, confidence, and trust and the
       reliance of one on the judgment and advice of another. However, the placement
       of trust, confidence, and reliance must be reasonable, and placement is
       unreasonable if the interests of the client and the nonclient are adverse or even
       potentially adverse. [Quotation marks, brackets, and citations omitted.]

“The conduct required to constitute a breach of fiduciary duty requires a more culpable state of
mind than the negligence required for malpractice.” Id. at 47. “Damages may be obtained for a
breach of fiduciary duty when a position of influence has been acquired and abused, or when
confidence has been reposed and betrayed.” Id. (quotation marks and citation omitted).

        In the present matter, plaintiff did not simply allege a breach of fiduciary duty claim
premised on negligence by defendant. Rather, plaintiff alleges that defendant intentionally
misled her into filing for Chapter 7 bankruptcy, in violation of a fiduciary duty owed to her
through the nature of the attorney-client relationship. The existence of an attorney-client
relationship does not preclude a claim for breach of fiduciary duty. See id. Rather, so long as
plaintiff alleges the existence of the more culpable state of mind required to state such a claim,
her claim is one for breach of fiduciary duty, and not one sounding in legal malpractice. By
alleging intentional misconduct by defendant, rather than negligence, plaintiff has pleaded a
claim for breach of fiduciary duty. Accordingly, the trial court erred when it concluded that
Count V of the complaint was a mislabeled malpractice claim. We note the statute of limitations
provides for a three-year limitations period for a claim of breach of fiduciary duty, id., citing
MCL 600.5805(10), instead of a two-year limitations period for a malpractice claim. Although
we cannot rule definitively that this claim is not time-barred, we nonetheless reverse the trial
court’s decision because the trial court relied on its belief that the count was time-barred as a
malpractice claim. 5

        Returning to Count IV of the complaint, which plaintiff titled as a count of “collusion,”
plaintiff alleged:

       36. Defendant made an agreement with [the] trustee to place her in improper
       bankruptcies, thereby depriving Plaintiff of her legal rights, in order to gain
       benefit for themselves to Plaintiff’s detriment.

5
  Because plaintiff filed her complaint on December 22, 2015, any such claim would have to
have accrued no earlier than December 22, 2012, in order to be viable. While we recognize that
plaintiff retained defendant in May 2012, because it was not argued at the trial court, we offer no
opinion on when this claim for breach of fiduciary duty actually accrued. Instead, our holding
simply is that when the trial court ruled that the claim was time-barred as a result of it sounding
in legal malpractice, the court erred.

                                                -9-
       37. The agreement to manipulate Plaintiff’s bankruptcy for their advantage was
       in and of itself a wrongful act.

       38. Plaintiff was damaged as a result of the Defendant’s collusion with [the]
       Trustee to manipulate Plaintiff’s bankruptcy for their own personal benefit.

        There seems to be no dispute that Michigan does not recognize a claim of “collusion” in
the civil context. But that fact is irrelevant. Again, courts are not bound by the label a party
places on his or her claim. Buhalis, 296 Mich App 691. And given defendant’s arguments
below, the trial court’s decision, and plaintiff’s attempt to amend her complaint a second time, it
is quite clear that all understand that this count is, in truth, a claim of civil conspiracy, which is
recognized in Michigan. See Advocacy Organization for Patients & Providers v Auto Club Ins
Ass’n, 257 Mich App 365, 384; 670 NW2d 569 (2003), aff’d 472 Mich 91 (2005). Thus,
regardless of the label placed on the claim by plaintiff, the question is whether she stated a claim
for civil conspiracy.

        “A civil conspiracy is a combination of two or more persons, by some concerted action,
to accomplish a criminal or unlawful purpose, or to accomplish a lawful purpose by criminal or
unlawful means.” Id. (quotation marks and citation omitted). “A claim for civil conspiracy may
not exist in the air; rather, it is necessary to prove a separate, actionable tort.” Id. (quotation
marks and citation omitted). The trial court concluded, in part, that because all of plaintiff’s
other counts were time-barred legal malpractice claims, there did not exist an underlying tort on
which to premise the civil conspiracy claim. However, for the reasons discussed above, plaintiff
has stated several claims that are not legal malpractice claims. Thus, this basis for the trial
court’s ruling no longer exists, and we reverse the grant of summary disposition on this civil
conspiracy count.

        On appeal, defendant looks to plaintiff’s second amended complaint (i.e., the complaint
that was rejected by the trial court) and argues that it fails to state a claim. Defendant explains
that “[t]here’s a lot that’s wrong with [plaintiff’s] conspiracy allegations. For one thing, they’re
false.” Given that the trial court did not accept plaintiff’s second amended complaint, the factual
allegations of that complaint are simply not at issue, at least at this point in time. Perhaps
plaintiff will be granted leave to file her second amended complaint pursuant to MCR
2.118(A)(2) when the matter returns to the trial court. In any event, we decline to address the
viability of any of the claims as presented in plaintiff’s second amended complaint.

        In sum, while Count I of plaintiff’s complaint is a legal malpractice claim that the trial
court correctly concluded was time-barred, the remaining counts are not claims of legal
malpractice. Accordingly, while we affirm the dismissal of Count I of the complaint, we reverse
the trial court’s decision to dismiss the remaining counts and remand for further proceedings
consistent our decision.

       III. PLAINTIFF’S ATTEMPT TO FILE A SECOND AMENDED COMPLAINT

        Finally, plaintiff contends that the trial court abused its discretion by refusing to allow her
to file a second amended complaint as a matter of course pursuant to MCR 2.118(A)(1). We
disagree. This Court reviews a trial court’s decision whether to permit a party to amend a

                                                 -10-
pleading for an abuse of discretion. In re Kostin, 278 Mich App 47, 51; 748 NW2d 583 (2008).
“[A]n abuse of discretion occurs only when the trial court’s decision is outside the range of
reasonable and principled outcomes.” Id. To the extent consideration of this issue requires this
Court to interpret a court rule, this Court’s review is de novo. AFP Specialties, Inc v Vereyken,
303 Mich App 497, 504; 844 NW2d 470 (2014).

        On October 13, 2016, the same day she filed a response to defendant’s second motion for
summary disposition, plaintiff without leave of the court, filed a second amended complaint.
The second amended complaint purported to incorporate by reference the first amended
complaint and listed only a single count, “Count IV,” which was now titled, “Collusion/Civil
Conspiracy.”6 Plaintiff contends that she was entitled to file a second amended complaint as a
matter of course pursuant to MCR 2.118(A)(1). This court rule states, “A party may amend a
pleading once as a matter of course within 14 days after being served with a responsive pleading
by an adverse party, or within 14 days after serving the pleading if it does not require a
responsive pleading.” MCR 2.118(A)(1) (emphasis added). “Except as provided in subrule
(A)(1), a party may amend a pleading only by leave of the court or by written consent of the
adverse party.” MCR 2.118(A)(2).

         Plaintiff fails to understand that the right to file an amended complaint under MCR
2.118(A)(1) ends after one amendment. After a plaintiff has filed one amended complaint, there
is no longer any right to file further amendments; rather, all further amendments must be by
leave of the court. MCR 2.118(A)(1) and (2). Plaintiff’s first amended complaint was the single
amendment she was permitted to file as a matter of course under MCR 2.118(A)(1). Therefore,
the trial court properly rejected plaintiff’s attempt to file a second amended complaint as a matter
of course, and it did not abuse its discretion.

        Affirmed in part, reversed in part, and remanded for further proceedings consistent with
this opinion. We do not retain jurisdiction. No taxable costs, as no party prevailed in full. MCR
7.219.

                                                             /s/ Stephen L. Borrello
                                                             /s/ Douglas B. Shapiro
                                                             /s/ Jonathan Tukel

6
 Presumably, plaintiff was intending to merely replace Count IV in the first amended complaint
with this count.

                                               -11-


                       NOT RECOMMENDED FOR PUBLICATION
                               File Name: 17a0320n.06

                                          No. 15-6318

                         UNITED STATES COURT OF APPEALS
                              FOR THE SIXTH CIRCUIT                                  FILED
                                                                                Jun 08, 2017
                                                                            DEBORAH S. HUNT, Clerk
RONNIE BOWLING,                                         )
                                                        )
       Petitioner-Appellant,                            )
                                                        )
                                                               ON APPEAL FROM THE
              v.                                        )
                                                               UNITED STATES DISTRICT
                                                        )
                                                               COURT FOR THE EASTERN
RANDY WHITE, WARDEN,                                    )
                                                               DISTRICT OF KENTUCKY
                                                        )
       Respondent-Appellee.                             )
                                                        )
                                                        )
                                                        )

BEFORE: CLAY, GIBBONS, and STRANCH, Circuit Judges.

       JULIA SMITH GIBBONS, Circuit Judge. In 1989, Ronnie Lee Bowling was taken

into custody on charges of murder, attempted murder, burglary, and robbery. In 1992, he was

convicted of the murder, burglary, and robbery charges in Laurel County, Kentucky, and was

sentenced to death plus eighty years’ imprisonment. Four years later, he was convicted of the

attempted murder charge in Rockcastle County, Kentucky, and was sentenced to twenty years’

imprisonment, to run concurrently with his Laurel County sentences. In September 2012, after

exhausting available state-court relief, Bowling filed a petition for a writ of habeas corpus in

federal court under 28 U.S.C. § 2254(a), alleging numerous constitutional violations in the

Rockcastle County proceedings.       Finding that Bowling’s twenty-year Rockcastle County

sentence began in 1989, the district court held that it lacked jurisdiction to consider Bowling’s

petition because he was no longer “in custody” on this sentence when he filed his petition in
No. 15-6318, Bowling v. White

September 2012. We issued a certificate of appealability on the following question: whether

Bowling was “in custody” under § 2254(a) at the time he filed his habeas petition in 2012,

including whether the second exception under Lackawanna County District Attorney v. Coss,

532 U.S. 394, 405–06 (2001), applies to this case. For the reasons stated here, we affirm.

                                                I.

        On January 20, 1989, Ronald Smith was shot and killed while working alone at a gas

station in Laurel County, Kentucky. Approximately one month later, on February 22, Marvin

Hensley was shot and killed while working alone at a different Laurel County gas station. No

suspects emerged until a similar crime occurred three days later at a gas station in nearby

Rockcastle County, Kentucky. On February 25, 1989, Ronnie Lee Bowling entered a Rockcastle

County gas station owned by Ricky Smith and began asking Smith about possible employment.

After a short conversation, Bowling opened fire on Smith, who returned fire in self-defense,

striking Bowling twice. After Bowling fled the gas station in his vehicle, Smith notified the

police. Following a short pursuit, Bowling was arrested and taken into custody. Bowling was

indicted for the Laurel County murders on March 17, 1989, and was indicted for the attempted

murder of Smith in Rockcastle County on April 28, 1989. Bowling did not post bond in either

case.

        In late 1992, Bowling was tried and convicted on the Laurel County indictment for two

counts of capital murder, two counts of first-degree burglary, and two counts of first-degree

robbery. He was sentenced to death plus four consecutive twenty-year sentences (the “Laurel

County sentences”). He was awarded 1,378 days of pre-trial custody credit, relating back to his

February 25, 1989 arrest. Bowling’s Laurel County conviction and sentences were upheld on

direct appeal, and his attempts at state post-conviction relief were unsuccessful. He filed a

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petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 in the Eastern District of

Kentucky on January 15, 2003, which was denied. His appeal of that decision is currently

pending before a separate panel of this court.

       Bowling was tried on the Rockcastle County indictment on February 27–28, 1996. He

was convicted of attempted murder and sentenced to twenty years’ imprisonment (the

“Rockcastle sentence” or the “Rockcastle conviction”). Although Bowling alleges that the

sentencing judge orally ordered the sentence to run consecutive to the earlier Laurel County

sentences, the written sentencing order did not specify whether the sentence was to run

concurrently or consecutively. Pursuant to Kentucky law, the Rockcastle sentence was therefore

required to run concurrently with the Laurel County sentences. See Ky. Rev. Stat. (KRS)

§ 532.110(2). The sentencing judge did indicate in his written order, however, that Bowling was

not entitled to any pre-trial custody credit towards his Rockcastle sentence.

       Bowling unsuccessfully pursued relief on his Rockcastle conviction and sentence in state

court. On September 6, 2012, Bowling filed a § 2254 habeas petition in the Eastern District of

Kentucky, asserting numerous claims for relief. The matter was referred to a magistrate judge,

who concluded that the sentencing judge had erred in denying Bowling pre-trial custody credit

under Kentucky law. The magistrate found that Bowling was “entitled to credit dating back to

February 25, 1989,” on his Rockcastle sentence and had, in fact, been awarded such credit by the

Kentucky Department of Corrections (KDOC). DE 67, Page ID 1318–29. The magistrate thus

recommended that the petition be dismissed on jurisdictional grounds—namely, that Bowling

was not “in custody” under § 2254 because his twenty-year Rockcastle sentence had fully

expired by the time he filed his petition in 2012.

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No. 15-6318, Bowling v. White

       In assessing the magistrate’s report and recommendation, the district court agreed that the

sentencing court had erred in denying Bowling pre-trial custody credit on his Rockcastle

sentence, but questioned whether KDOC had the legal authority to correct such errors by

awarding Bowling the missing credit. Accordingly, the district court certified two questions to

the Kentucky Supreme Court: (1) whether, legally, KDOC had authority to correct the

sentencing court’s failure to award jail-time credit; and (2) whether, factually, Bowling’s

Rockcastle sentence had expired by the time he filed his habeas petition in 2012.

       The Kentucky Supreme Court accepted certification of the first question but expressly

declined to consider the second question. Agreeing in dicta that Bowling was entitled, “as a

matter of law,” to 1,378 days of pre-trial custody credit on his Rockcastle sentence, the Kentucky

Supreme Court held that KDOC not only had the authority to award an inmate pre-trial custody

credit to which he was entitled, but was statutorily required to do so under KRS § 532.120(3)

regardless of whether the sentencing court declined to award such credit. Bowling v. White, 480

S.W.3d 911, 917–18 (Ky. 2015).

       With that answer in hand, the district court dismissed Bowling’s habeas petition for lack

of jurisdiction. Finding that KDOC had awarded Bowling the pre-trial custody credit to which

he was entitled, the district court concluded that Bowling’s Rockcastle sentence began in 1989

and expired in 2009. Accordingly, the district court held that Bowling was no longer “in

custody” on the Rockcastle conviction when his petition was filed in September 2012. This

appeal followed.

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No. 15-6318, Bowling v. White

                                                   II.

        Whether Bowling was “in custody” at the time he filed his § 2254 habeas petition is a

jurisdictional question we review de novo. See Steverson v. Summers, 258 F.3d 520, 522 (6th

Cir. 2001).

                                                   III.

        The district court had jurisdiction to entertain Bowling’s § 2254 habeas petition only if

he was “in custody” on his Rockcastle conviction at the time he filed his petition in September

2012. See 28 U.S.C. § 2254(a); Maleng v. Cook, 490 U.S. 488, 490–91 (1989). Whether

Bowling was “in custody” on his Rockcastle conviction requires us to answer two questions.

First, when did Bowling’s Rockcastle sentence begin? Second, if Bowling’s Rockcastle sentence

began in 1989, what is the effect, for habeas purposes, of KRS § 532.120(1), which provides that

the maximum terms of concurrent sentences in Kentucky “merge in” and are satisfied only by

discharge of the longest term?        For the reasons articulated here, we find that Bowling’s

Rockcastle sentence began in 1989 and that § 532.120(1) has no effect on whether Bowling was

“in custody” within the meaning of § 2254. Accordingly, because Bowling was no longer “in

custody” on his Rockcastle conviction when he filed his petition in September 2012, we affirm

the district court’s dismissal for lack of jurisdiction.

                                                   A.

        Under Kentucky law, Bowling was entitled to pre-trial custody credit on his Rockcastle

sentence dating back to February 25, 1989, and was, in fact, awarded such credit by KDOC. At

the time Bowling was sentenced on his Rockcastle conviction, KRS § 532.120(3) provided:

        Time spent in custody prior to the commencement of a sentence as a result of the
        charge that culminated in the sentence shall be credited by the court imposing
        sentence toward service of the maximum term of imprisonment. If the sentence is
        to an indeterminate term of imprisonment, the time spent in custody prior to the

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No. 15-6318, Bowling v. White

        commencement of the sentence shall be considered for all purposes as time served
        in prison.

(West 1997).1 Despite this seemingly clear mandate, the sentencing court awarded Bowling “0

days” of pre-trial custody credit on his Rockcastle sentence. DE 13-8, Page ID 198. The district

court, finding that the sentencing court had erred, nonetheless concluded that KDOC had

corrected the sentencing court’s mistake and had awarded Bowling 1,378 days of pre-trial

custody credit dating back to 1989. Bowling disagrees with both findings, arguing that the

sentencing court properly denied him any pre-trial custody credit on his Rockcastle sentence and

further that KDOC did not “fix” any supposed error by the sentencing court. To support his first

point, Bowling cites various KDOC policies concerning the calculation of custody time credit.

On his second point, Bowling relies on documentary evidence, which allegedly demonstrates that

KDOC did not award him any pre-trial custody credit on his Rockcastle sentence.                     Each

argument falls short.

        Bowling’s reliance on KDOC policies to support his argument that he was entitled to pre-

trial custody credit on only his Laurel County sentences ignores the contrary, and controlling,

requirements imposed by Kentucky statute. True, KDOC Policy 28-01-08(II)(A)(2) provides:

“Where multiple felony indictments are involved, any applicable credit shall be applied to the

indictment which is sentenced first.” And § 28-01-08(II)(A)(6) further states: “If an offender is

being sentenced on more than one felony indictment at the same time, custody time credit shall

be calculated separately for each indictment . . . . If those felony detainments overlap, one

indictment shall receive credit while the other indictment shall have fewer or zero (0) days

credit.” But these policies directly conflict with § 532.120(3), which, at the time Bowling was

convicted, explicitly required that “[t]ime spent in custody prior to the commencement of a

        1
         KRS § 532.120(3) was amended in 2011, replacing “by the court imposing the sentence” with “by the
Department of Corrections.”

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No. 15-6318, Bowling v. White

sentence as a result of the charge that culminated in the sentence shall be credited by the court

imposing sentence.” KRS § 532.120(3) (West 1997) (emphasis added). Thus, the Rockcastle

sentencing court (and later KDOC under the amended statute) had no discretion to deny Bowling

pre-trial custody credit for the time he spent in custody as a result of the Rockcastle attempted-

murder charge. See Bartrug v. Commonwealth, 582 S.W.2d 61, 63 (Ky. Ct. App. 1979) (“Based

upon the mandatory language of [§ 532.120(3)], the word ‘shall’ precludes any discretion on the

part of the trial court in crediting time for preconviction custody.”).

       This interpretation of § 532.120(3) is consistent with the Kentucky Supreme Court’s

understanding of the statute. In answering the district court’s certified question, the Kentucky

Supreme Court noted, albeit in dicta, that “Bowling was entitled, as a matter of law, to the

custody credit that he now wishes to decline.” Bowling, 480 S.W.3d at 917. Although we are

not bound by this statement, it is certainly persuasive.         Moreover, even KDOC’s policies

contemplate this result under § 532.120(3) as it relates to concurrent sentences. See CPP 28-01-

08(II)(A)(8) (“Since a misdemeanor and felony sentence run concurrently by statute, overlapping

credit may be calculated.” (emphasis added)). Accordingly, because Bowling was first taken

into custody pursuant to the Rockcastle charge on February 25, 1989, he was entitled to

1,378 days of pre-trial custody credit on his Rockcastle sentence under § 532.120(3). To the

extent KDOC’s policies deny Bowling such credit, they are inconsistent with Kentucky statutory

law and are thus void. See KRS § 13A.120(2)(i); Franklin v. Nat. Res. & Envtl. Prot. Cabinet,

799 S.W.2d 1, 3 (Ky. 1990).

       That does not necessarily end the inquiry, however. Unlike the district court, we do not

believe it is clear, at least from the record, that KDOC corrected the sentencing court’s mistake.

Some evidence suggests KDOC awarded Bowling pre-trial custody credit on his Rockcastle

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No. 15-6318, Bowling v. White

sentence. In a March 2012 letter, for example, a KDOC official informed Bowling that his

Rockcastle sentence had been “served out” as of that date, which predated his September 2012

filing. DE 1-1, Page ID 99. But other evidence is less clear. Bowling’s Resident Record Card,

for instance, attributes 1,378 days of jail credit to only his Laurel County burglary conviction and

not explicitly to his Rockcastle conviction. Yet, it also lists his total time served as “22y 3m

13d” without differentiating between his Laurel County and Rockcastle sentences, suggesting

that Bowling began serving both in 1989.2 DE 13-10, Page ID 205.

         On balance, however, we conclude that KDOC awarded Bowling pre-trial custody credit

on his Rockcastle sentence. Although the record evidence is ambiguous as to this fact, the

Warden’s repeated concession, throughout this litigation, that Bowling was no longer “in

custody” on his Rockcastle sentence at the time he filed his § 2254 petition is enough to satisfy

us that such credit was awarded. This court, of course, must independently determine its own

jurisdiction. See Arbaugh v. Y&H Corp., 546 U.S. 500, 514 (2006). But the Warden is the

Kentucky state officer that would have custody of Bowling if he was still serving his Rockcastle

sentence, and the Warden’s assertion that he did not have such custody in September 2012

carries great weight.         This is especially true where his assertion is consistent with what

§ 532.120(3) requires: an award of pre-trial custody credit for time spent in custody on a charge

that culminates in a sentence. Accordingly, we find that Bowling was credited with 1,378 days

         2
           Bowling’s strongest piece of evidence is an April 19, 2016 letter from a KDOC official indicating that,
pursuant to KDOC policies, Bowling was awarded pre-trial custody credit on only his Laurel County sentences
because it was the indictment sentenced first. But this letter was not in the record before the district court, and we
decline to supplement the record to include it. In any event, this letter, at best, furthers the ambiguity in the record
and is not dispositive of the outcome here.

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No. 15-6318, Bowling v. White

of pre-trial custody credit on his Rockcastle sentence, resulting in that sentence having expired in

2009 and rendering him no longer “in custody” at the time he filed his September 2012 petition.3

                                                         B.

         We also find that KRS § 532.120(1) has no effect on the § 2254 “in custody”

determination.       This provision provides that, “[w]hen a person is under more than one

(1) indeterminate sentence, the sentences shall be calculated as follows: If the sentences run

concurrently, the maximum terms merge in and are satisfied by discharge of the term which has

the longest unexpired time to run.”4 KRS § 532.120(1)(a). Bowling argues that regardless of

when his Rockcastle sentence began, his Rockcastle and Laurel County sentences have “merged”

under KRS § 532.120(1), such that he is “in custody” on his Rockcastle sentence so long as he is

serving his Laurel County death sentence.                The Commonwealth disagrees, contending that

§ 532.120(1) has no bearing on whether Bowling is “in custody” under § 2254.

         To support his interpretation of § 532.120(1), Bowling cites to Commonwealth v. Propes,

No. 2010-CA-002315-MR, 2011 WL 5600619 (Ky. Ct. App. Nov. 18, 2011). In Propes, the

defendant was convicted of murder and sentenced to life imprisonment in 1974, but was paroled

after eight years. Id. at *1. A year after being released on parole, the defendant was convicted of

a separate rape and was sentenced to two concurrent ten-year terms, both of which were to be

served concurrent with his life sentence. Id. After being paroled again in 1994, the defendant

         3
           It is important that we note the strange posture of this case. Bowling asks us not to free him from
allegedly unlawful custody, but rather to extend such custody so that he may pursue further relief. In the usual case,
Bowling has already won—the Commonwealth concedes that Bowling is not in custody under his Rockcastle
sentence and has not been since 2009. Thus, should he succeed in having his Laurel County convictions overturned,
Bowling would be a free man. Despite this, he seeks to reach a counterintuitive result that would require that we
ignore not only the Commonwealth’s own concessions, but also what Kentucky law requires. And Bowling asks us
to contort our habeas jurisprudence in a case where even the equities are not in his favor. There is no evidence that
the Warden misinformed Bowling to his detriment or otherwise acted to prejudice Bowling’s ability to seek federal
review of his state court proceedings.
         4
          In Kentucky, all felony sentences are deemed “indeterminate,” KRS § 532.060(1), while misdemeanor
convictions result in a “definite term” of imprisonment, id. § 532.090.

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No. 15-6318, Bowling v. White

violated his parole and returned to prison in 2004. Id. As a result, the Commonwealth required

him to register as a sex offender under new registry requirements promulgated in 1998, which

applied to individuals “incarcerated” on sex crimes as of that date. Id. The defendant objected,

claiming that he had fully served his rape sentence prior to 1998 and was therefore incarcerated

on only the murder charge. Id. Applying § 532.120(1), the Kentucky Court of Appeals found

that the defendant’s ten-year rape sentence had “merged” into his life sentence, rendering him

incarcerated on the rape charge when he violated his parole in 2004, despite the ten-year

sentence having run well before that date. Id. at *2; see also Stewart v. Ky. Parole Bd, No. 2001-

CA-002264-MR, 2003 WL 1860278, at *3 (Ky. Ct. App. April 11, 2003). But Propes was not

issued by the Kentucky Supreme Court, nor was it a published decision. And, importantly, it did

not involve a § 2254 “in custody” determination. Thus, it is neither controlling nor persuasive

here.

        The case on which the Commonwealth primarily relies, Mays v. Dinwiddie, 580 F.3d

1136 (10th Cir. 2009), also fails to resolve the issue. In Mays, an Oklahoma prisoner filed a

§ 2254 petition challenging a fully discharged burglary sentence, reasoning that he was still in

custody for a separate crime whose sentence ran concurrent to the burglary sentence. Id. at

1138–40. The Tenth Circuit dismissed the petition, holding that a prisoner who was still serving

the longer of two concurrent sentences, but that had completed the term of the shorter sentence,

was no longer “in custody” under § 2254 for purposes of challenging the conviction underlying

the shorter sentence. Id. at 1140–41. Although the facts of Mays are closely analogous to those

here, it is distinguishable because Oklahoma lacked a merger statute similar to that of

§ 532.120(1).

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No. 15-6318, Bowling v. White

       The record evidence is similarly unhelpful.       To be sure, some of the documentary

evidence indicates that Bowling’s Laurel County and Rockcastle sentences have merged, such

that he is serving an “aggregate sentence of death.” DE 114-1, Page ID 1688; DE 1-1, Page ID

97; DE 13-10, Page ID 205. But KDOC’s calculation of Bowling’s total term of imprisonment

under § 532.120(1) is distinct from a determination of whether Bowling was still “in custody” on

the Rockcastle conviction in 2012 for purposes of collaterally attacking it under § 2254.

       We hold that § 532.120(1) does not alter the fact that Bowling’s twenty-year Rockcastle

sentence expired in 2009. First, the primary focus in a § 2254 “in custody” determination is

whether the prisoner is suffering “present restraint” from the challenged conviction. Maleng,

490 U.S. at 492. Because Bowling’s twenty-year Rockcastle sentence began in 1989, he was

suffering no restraint from this conviction when he filed his petition in September 2012. In fact,

KDOC informed Bowling in March 2012 that if his “death sentence [was] vacated,” his

Rockcastle sentence “would be recalculated” and “[u]pon recalculating [his] time, [he] would

have a total sentence length of 20 years which would be served out and [he] would be released

from DOC custody.” DE 1-1, Page ID 99. The Kentucky Court of Appeals agreed. See Bowling

v. Commonwealth, No. 2010-CA-000490-MR, 2012 WL 95425, at *5 (Ky. Ct. App. Jan. 13,

2012) (noting in dicta that, at the time the decision was rendered in January 2012, “Bowling

ha[d] served the twenty years’ imprisonment to which he was sentenced” on the Rockcastle

conviction). Construing § 532.120(1) to extend federal habeas jurisdiction to situations where

the prisoner no longer suffers restraint from the challenged conviction, as Bowling’s

interpretation does, “would read the ‘in custody’ requirement out of the statute.” Maleng,

490 U.S. at 492.

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No. 15-6318, Bowling v. White

        Second, we have previously recognized that the merger language contained in

§ 532.120(1) does not create custody for habeas purposes where it would not otherwise exist. In

Johnson v. O’Dea, 19 F.3d 19, 1994 WL 51581 (6th Cir. Feb. 18, 1994) (table decision), we

noted that § 532.120(1) was “enacted to provide statutory guidance for the administrative task of

calculating the maximum total time for which individuals may be incarcerated when serving

multiple sentences,” and “not to merge consecutive sentences for purposes of collaterally

attacking them.” Id. at *4 (citing 1974 Commentary, Kentucky Revised Statutes). Although it is

true that Johnson dealt with consecutive sentences and not concurrent ones, the reasoning applies

with equal force here.5 Moreover, other courts interpreting similar merger statutes in the habeas

context have reached the same conclusion. See, e.g., Hurdle v. Sheehan, No. 13-cv-6837, 2016

WL 4773130, at *3–4 (S.D.N.Y. Sept. 12, 2016).

        Third, Bowling’s interpretation of § 532.120(1) contravenes the policy underlying the

federal habeas statute. As the Supreme Court has noted, the “core purpose” of federal habeas

review is to “shorten [a] term of incarceration” in the event a petitioner “proves

unconstitutionality.” Garlotte v. Fordice, 515 U.S. 39, 47 (1995). Bowling’s interpretation

would have the opposite result; it would lengthen potentially unconstitutional confinement. And

this court “has clearly indicated an intention not to ‘open the door’ to the creation of jurisdiction

for sentences which have been fully served.” Johnson, 1994 WL 51581, at *3. Bowling’s

interpretation of § 532.120(1) does just that. Accordingly, we find that § 532.120(1) does not

        5
           It is true that the Supreme Court has allowed habeas challenges to consecutive sentences that were either
already served, see Garlotte, 515 U.S. at 45–46, or had yet to be served, Peyton v. Rowe, 391 U.S. 54, 67 (1968).
This makes sense because a successful challenge to a consecutive sentence (whether expired or impending) will
necessarily shorten the prisoner’s term of incarceration. See Garlotte, 515 U.S. at 47. The same is not true of
challenging an expired concurrent sentence. Even if successful, invalidation of an expired concurrent sentence will
have no effect on the ultimate length of incarceration. See Mays, 580 F.3d at 1140–41.

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No. 15-6318, Bowling v. White

perpetuate Bowling’s twenty-year Rockcastle sentence until the expiration of his death sentence

for purposes of challenging it under § 2254.

                                                 IV.

       Finally, Bowling argues that, even if his Rockcastle sentence had expired by the time he

filed his September 2012 petition, we should nonetheless entertain his habeas petition under

Lackawanna County District Attorney v. Coss, 532 U.S. 394 (2001). In Lackawanna County, the

Supreme Court reaffirmed its prior holding from Daniels v. United States, 532 U.S. 374 (2001),

that “once a state conviction is no longer open to direct or collateral attack in its own right . . . ,

the conviction may be regarded as conclusively valid.” Lackawanna Cty., 532 U.S. at 403.

It further held that even “[i]f [the] conviction is later used to enhance a criminal sentence, the

defendant generally may not challenge the enhanced sentence through a petition under § 2254 on

the ground that the prior conviction was unconstitutionally obtained.” Id. at 403–04. A plurality

of the Court fashioned an exception to this latter holding, however, which Bowling argues is

applicable here. This exception applies where the “defendant can[not] be faulted for failing to

obtain timely review of [the] constitutional claim” because the state court, “without justification,

refuse[d] to rule on [the] constitutional claim that [was] properly presented to it.” Id. at 405.

The plurality reasoned that, “[i]n such situations, a habeas petition directed at the enhanced

sentence may effectively be the first and only forum available for review of the prior

conviction.” Id. at 406. This exception is not broad enough to encompass Bowling’s claim.

       As an initial matter, because Bowling’s Rockcastle sentence has fully expired, he may

invoke this exception only if his § 2254 petition can be construed as challenging his 1992 Laurel

County sentences, as enhanced by the allegedly invalid Rockcastle conviction. See id. at 401,

403. This construction of Bowling’s petition is tenuous given his § 2254 petition only nominally

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No. 15-6318, Bowling v. White

references his Laurel County conviction and sentences. Moreover, because Bowling currently

has a separate § 2254 petition pending before this court in which he explicitly challenges the

constitutional defects in his Laurel County conviction, interpreting his petition in this manner is

duplicative and would require dismissal under 28 U.S.C. § 2244.

       More importantly, Bowling’s Rockcastle conviction could not have been used to enhance

his Laurel County sentences because it occurred four years after those sentences were imposed.

Recognizing this defect, Bowling argues that Lackawanna County nevertheless applies because

evidence of the Rockcastle crime led to his Laurel County convictions.                  But as the

Commonwealth notes, this evidence was admissible under Kentucky Rule of Evidence 404(b)

regardless of whether Bowling was ever tried and convicted on the Rockcastle crime. See

Bowling, 942 S.W.2d at 301. Thus, even if Bowling’s Rockcastle conviction was permeated

with unconstitutional defects, invalidation of that conviction would have no effect on his Laurel

County sentences.

       The cases on which Bowling relies to support an extension of Lackawanna County to this

case are inapposite. In those cases, it is true, the petitioner was permitted to invoke Lackawanna

County to challenge a later expired conviction that adversely affected an earlier conviction

under which the petitioner was still confined. See Brattain v. Cockrell, 281 F.3d 1279, 2001 WL

1692470, at *2 (5th Cir. Nov. 27, 2001); Ward v. Wolfenbarger, 323 F. Supp. 2d 818, 827–28

(E.D. Mich. 2004). But in both of those cases, Lackawanna County applied only because the

later conviction was adversely affecting the petitioner’s parole eligibility on the earlier sentence.

See Brattain, 2001 WL 1692470, at *2; Ward, 323 F. Supp. 2d at 827–28. The same cannot be

said of Bowling’s Rockcastle conviction. Because Bowling was sentenced to death for his

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No. 15-6318, Bowling v. White

Laurel County crimes and is thus not eligible for parole, his Rockcastle conviction will have no

effect on future parole eligibility or the length of his Laurel County sentences.

       Lastly, there is no evidence that the state court, “without justification, refuse[d] to rule on

[Bowling’s] constitutional claim that [was] properly presented to it.” Lackawanna Cty., 532 U.S.

at 405. Instead, it appears that the state court diligently considered and ruled on Bowling’s

various motions throughout the state-court proceedings. Bowling simply chose a circuitous route

through the state courts that rendered him no longer “in custody” on his Rockcastle sentence

when his § 2254 petition was filed in September 2012. Lackawanna County cannot save him.

                                                 V.

       For the foregoing reasons, we affirm.

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No. 15-6318, Bowling v. White

       STRANCH, Circuit Judge, dissenting. I write separately to address the factual issue

that underlies our legal ruling—whether Ronnie Bowling was still “in custody” on his

Rockcastle County conviction at the time he filed his habeas petition, as required for federal

jurisdiction. Because Bowling was not owed pre-trial custody credit toward his Rockcastle

County sentence, nor did he receive it, I believe he was “in custody” and, therefore, respectfully

dissent.

       As the majority notes, to determine whether Bowling was in custody on his Rockcastle

County sentence, we must first determine to which sentence his pre-trial custody credit applies.

Kentucky law and Kentucky Department of Corrections (KDOC) policies guide the inquiry

regarding his pre-trial custody credit, and clarify how that credit is calculated in a factual

scenario involving multiple indictments and sentences. KDOC Policy 28-01-08(II)(A)(2) states:

“Where multiple felony indictments are involved, any applicable credit shall be applied to the

indictment which is sentenced first.” KDOC Policy 28-01-08(II)(A)(6) states: “If an offender is

being sentenced on more than one felony indictment at the same time, custody time credit shall

be calculated separately for each indictment . . . . If those felony detainments overlap, one

indictment shall receive credit while the other indictment shall have fewer or zero (0) days

credit.” And that is what happened here: Bowling’s credit was applied to his first Laurel County

sentence. The KDOC Resident Record Card confirms this, noting that Bowling was given 1,378

days of jail credit on his Laurel County burglary sentence, and no days of credit for his five other

Laurel County sentences or his Rockcastle County sentence.

       KRS § 532.120(3) does not conflict with the KDOC policies cited above—the policies

and the statutory language are easily read together, and appear to have been created to do so.

The statute uses mandatory language (“shall”) to prevent defendants from being completely

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No. 15-6318, Bowling v. White

denied their custody credit. It does not mandate or explain how credit should be applied. KDOC

policies specify exactly how the credit is awarded in different situations. This makes practical

sense. The Department of Corrections regularly deals with issues of custody credit in multiple

convictions, including situations in which a defendant was convicted and sentenced in different

counties on different dates, as here. In light of this expertise, it is not surprising that nothing in

the statute attempts to reach the level of granularity that would specify to which sentence a credit

should apply and that such decision is instead entrusted to the KDOC.

       This reading is consistent with the Kentucky Supreme Court’s decision in Bowling v.

White, 480 S.W.3d 911, 913 (Ky. 2015). In certifying questions to the Kentucky Supreme Court,

the district court assumed that Bowling was due credit for his pre-trial custody time, that the

sentencing court did not give him that credit, and that the KDOC did credit Bowling with that

time. (R. 88, PageID# 1487-91) (“Seven years elapsed between Ronnie Lee Bowling’s arrest

and his conviction for attempted murder. Bowling spent those seven years in jail. Kentucky law

requires what common sense suggests: That those seven years should be credited towards his

resulting 20-year sentence. But the sentencing court did not credit Bowling with those years, and

Bowling never appealed. Kentucky’s Department of Corrections, however, did credit Bowling

with that time. The question presented by this case is whether the Department of Corrections can

remedy the sentencing court’s error.”).

       Bowling, proceeding pro se at the time, did not challenge these erroneous factual

assumptions. The Kentucky Supreme Court expressly assumed the facts as presented by the

district court, and left any fact finding about Bowling’s situation up to the district court.

Bowling, 480 S.W.3d at 913 (“The record in this case is sparse because it concerns the

certification of a question of law, and we are thus dependent on the facts as articulated by the

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No. 15-6318, Bowling v. White

district court at its request.”). The state Supreme Court went on to hold that the KDOC did have

the power to alter a mistake, a holding Bowling does not contest. See id. In a situation where an

individual was mistakenly denied credit by a trial court, the KDOC is authorized to correct the

error. See id. However, this holding is not relevant to the determination facing this panel: if

Bowling was actually owed credit on his Rockcastle County sentence, and if he received it.

       Justice Seay’s dissent highlighted this problem.

       The Rockcastle trial court correctly awarded Bowling zero days custody time
       credit . . . . This court does not have Bowling's Rockcastle [Presentence
       Investigation Report], but if Probation and Parole calculated his custody time
       credit according to applicable statutes and policy, the PSI should have shown
       Bowling was entitled to zero days custody time credit. This is because
       Corrections would have already applied the entire custody time credit to the
       Laurel conviction, which was the “indictment which is sentenced first.”
                                               ...
       While the U.S. District Court found the Rockcastle court mistakenly awarded
       Bowling zero days custody time credit, there appears to be no basis in the record
       upon which the court could base that finding. It appears more likely the
       Rockcastle trial court's award of zero days was correct, based upon Corrections'
       likely initial calculation and applicable statutes and policies. The U.S. District
       Court also found Corrections “recalculated” Bowling's custody time credit. There
       also appears to be no basis in the record upon which the court could base that
       finding.

Id. at 918-20 (Seay, J., dissenting).

       The Bowling decision does not address the issue at hand. Under Kentucky law and

KDOC policies, Bowling’s credit was properly applied to his first Laurel County sentence, as

reflected in the record. He was not entitled to have pre-trial jail custody credit on his Rockcastle

County sentence, and neither KRS § 532.120(3) nor the Kentucky Supreme Court say otherwise.

       Further, the evidence does not show that Bowling was awarded credit on his Rockcastle

sentence, rather just the opposite. The majority points to a March 20, 2012 letter from a KDOC

official to support the contention that the KDOC awarded Bowling pre-trial custody credit on his

Rockcastle County sentence. But that letter is not a “concession” that the KDOC did not have

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No. 15-6318, Bowling v. White

custody over Bowling. Rather, it is premised on a hypothetical—if Bowling were “granted a

new trial and [his] death sentence [was] vacated,” his sentence would be recalculated. (R 1-1,

PageID# 99). Upon recalculation, the letter states, his sentence would have been considered

served out and he would be released from custody. It makes sense that if Bowling’s Laurel

County sentence were vacated, his pre-trial custody credit would transfer to his Rockcastle

County conviction pursuant to KRS § 532.120(3). Thus, if his Laurel County sentences were

vacated, the KDOC would no longer have custody of Bowling. See KRS § 532.120(4). This

letter explains what would happen in a hypothetical situation that has not occurred, but it does

not demonstrate that Bowling received credit on his Rockcastle County sentence.

       The evidence showing that Bowling did not actually receive credit on his Rockcastle

sentence is strong. His Resident Record Card indicates that his entire credit was applied to just

one of his Laurel County convictions. Bowling also asks the panel to take judicial notice of two

letters, both from the Assistant District Supervisor of the KDOC. The first states that Bowling

was given zero days of credit for his Rockcastle sentence, and the second clarifies that because

he was sentenced first in Laurel County, his full credit was applied solely to that case. In sum,

the record does not support the conclusion that custody credit was ever applied to Bowling’s

Rockcastle County sentence.

       Because Kentucky law and KDOC policies do not mandate that Bowling receive pre-trial

custody credit on his Rockcastle County sentence, and because the evidence does not show that

he was ever awarded such credit, he was still “in custody” for federal habeas purposes at the time

he filed his petition. Therefore, I respectfully dissent.

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