Cowan v. Stovall

Filing 60

MEMORANDUM OPINION and ORDER Granting in Part 21 MOTION to Amend/Correct 1 Petition for Writ of Habeas Corpus MOTION to allow petitioner to return to state court seeking relief and hold present petition in abeyance re 1 Petition for Writ of Habeas Corpus, and Granting 57 MOTION to Stay Signed by District Judge Robert H. Cleland. (PMil)

UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
TRACY LYNN COWAN,
Petitioner,
v.

Case No. 06-13846

CLARICE STOVALL,
Respondent.
/
OPINION AND ORDER (1) GRANTING IN PART MOTION TO AMEND PETITION
FOR WRIT OF HABEAS CORPUS, (2) GRANTING MOTION TO ALLOW
PETITIONER TO RETURN TO STATE COURT, (3) STAYING AND HOLDING IN
ABEYANCE THE PETITION, AND (4) CLOSING CASE FOR ADMINISTRATIVE
PURPOSES
This case returns to the district court after the court’s September 30, 2008
judgment was affirmed in part, reversed in part, and remanded by the United States
Court of Appeals for the Sixth Circuit. The court of appeals handed down its decision in
Cowan v. Stovall, 645 F.3d 815 (6th Cir. 2011) on July 19, 2011, and the mandate
followed on August 11, 2011. In accordance with that opinion, the motion to amend will
be granted with respect to Petitioner’s ineffective-assistance-of-counsel claim based on
a theory of counsel’s failure to interview certain witnesses. Following the
recommendation of the court of appeals, and finding “good cause” for Petitioner’s failure
to first present her claim to the Michigan courts, the court will stay the matter and hold it
in abeyance, allowing Petitioner to return to state court to exhaust her failure-tointerview claim. For the same reasons, Petitioner’s recently filed “Motion to Allow
Petitioner to Return to State Courts Seeking Exhaustion of New Claims by Way of

Motion for Relief from Judgment Under MCR 6.500 and Hold Habeas Petition in
Abeyance” will be granted. The case will be closed for statistical purposes while
Petitioner exhausts the claim.
I. BACKGROUND
On March 7, 2008, the court issued an opinion and order that, among other
actions, denied Petitioner’s motion to amend her petition. The court held, among other
findings, that Petitioner’s ineffective-assistance-of-counsel claim premised on counsel’s
failure to interview witnesses, which she sought to add in a motion to amend filed after
the one-year statute of limitations had run, was time barred because it did not relate
back to the original petition. See Cowan v. Stovall, No. 06-CV-13846, 2008 WL
659715, at *7-*9 (E.D. Mich. Mar. 7, 2008). The court of appeals disagreed, holding the
failure-to-interview claim does relate back to the original petition, and is therefore timely.
Cowan, 645 F.3d at 818-20. The court of appeals reversed on that ground, but affirmed
the judgment in all other respects. Id. at 817. Thus, the court will grant the motion to
amend with respect to the failure-to-interview claim.
Observing that the failure-to-interview claim is unexhausted, the court of appeals
went on to find that Petitioner’s claim was not plainly meritless, and therefore could not
be rejected out of hand. Id. at 820. The court then remanded the matter to this court
for a determination of the procedural course to follow, stating:
[T]wo options remain: first, dismiss the claim without prejudice while Cowan
pursues it in state court, in which case the claim might be time-barred if she
later returns with it to federal court, see 28 U.S.C. § 2244(d); or second, stay
her petition (which now comprises only this claim) and hold it in abeyance
while she returns to state court. See [Wagner v. Smith, 581 F.3d 410, 419
(6th Cir. 2009).] Under that approach Cowan could return later to federal
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court for a ruling on the merits of this claim if the state courts deny relief on
it.
Given the nature of the claim here, it is hard to disagree with the road
map laid out in Wagner: if “Petitioner can show good cause for failing to
present th[is] claim[ ] to the state court in the first instance, we see no reason
why the district court should not grant a ‘stay and abeyance’ while Petitioner
exhausts in state court[.]” Id. (quoting Rhines v. Weber, 544 U.S. 269, 277,
125 S. Ct. 1528, 161 L. Ed. 2d 440 (2005)). In any event, we remand the
claim so that the district court can decide in the first instance what to do with
it.
Id. at 820-21 (alterations in second paragraph in original).
On August 19, 2011, the court invited Respondent to file a response to the
question posed by the court of appeals, that is, whether the petition should be stayed
and held in abeyance. That same day, Petitioner filed a motion that asks the court to
stay the petition and hold it in abeyance while she exhausts her failure-to-interview
claim, arguing in essence that she had good cause for failing to previously raise it
before the state courts. On August 29, 2011, Respondent filed a “Supplemental Answer
in Opposition to Motion to Stay and Abey,” asserting that Petitioner cannot establish
good cause because she knew about the potential evidence available through the
interviews at the time of her direct appeal in the state court.
II. DISCUSSION
Because the Petitioner has shown good cause for failing to present her failure-tointerview claim to the state court, the court will follow the sound recommendation of the
court of appeals to grant a stay and hold the petition in abeyance while Petitioner
returns to state court to present her claim.
“In Rhines, the Supreme Court noted that the ‘stay and abeyance’ method should
only be available in instances where the petitioner can: 1) show good cause for failing to
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present the claims before the state court in the first instance, and 2) show that his
unexhausted claims are not ‘plainly meritless.’” Wagner, 581 F.3d at 419 (citing Rhines,
544 U.S. at 277). As noted, the court of appeals has resolved the second leg of this
analysis—finding that the Petitioner’s claim is not plainly meritless—leaving for this court
only the question of whether there was good cause for Petitioner’s failure to present the
claim to the state courts before petitioning for federal habeas relief. Cowan, 645 F.3d at
820-21.1
The Supreme Court did not define good cause in Rhines, nor has the Sixth
Circuit Court of Appeals done so. See Bates v. Knab, No. 2:10-CV-420, 2011 WL
2785244, at *3 (S.D. Ohio July 15, 2011) (report and recommendation) (citing Hnatiuk v.
Trombley, No. 06-13880, 2008 WL 3305157 (E.D. Mich. Aug. 11, 2008) (adopting report
and recommendation)). A number of federal courts have concluded that the Rhines
good-cause requirement is less stringent than the good-cause showing required in the
context of procedural default. See Lockridge v. Ludwick, No. 09-10145, 2009 WL
5217592, at *3 (E.D. Mich. Dec. 28, 2009) (adopting report and recommendation)
(holding that “good cause under Rhines is something less than the ‘cause’ needed to
excuse a procedural default”); Bryant v. Greiner, No. 02Civ.6121(RMB)(RLE), 2006 WL
1675938, at *5 (S.D.N.Y. June 15, 2006) (same); Rhines v. Weber, 408 F. Supp. 2d
844, 849 (D.S.D. 2005) (on remand, applying “a more expansive definition of ‘good
cause’ . . . than the showing needed for ‘cause’ to excuse a procedural default”); cf.

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The court finds there is no evidence that Petitioner “engaged in intentionally
dilatory litigation tactics.” See Rhines, 544 U.S. at 278. Thus, a stay and abeyance is
appropriate if there was good cause for Petitioner’s failure to first present her claims to
the Michigan courts.
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Jackson v. Roe, 425 F.3d 654, 661-62 (9th Cir. 2005) (holding that good-cause
standard prescribed in Rhines does not require a showing of “extraordinary
circumstances”).
The court finds good cause. Petitioner is pro se, and her filings convey her
“ignoran[ce] to law, especially when it comes to grappling [with] federal constitutional
claims, the strange relationship between federal and state courts, [and] exhaustion and
fair presentation of claims.” (Mot. Amend at 15). The good-cause requirement “is not
intended to impose the sort of strict and inflexible requirement that would trap the
unwary pro se prisoner,” Rhines, 544 U.S. at 279 (Stevens, J., concurring) (internal
quotation marks omitted), who “do[es] not come well trained to address [exhaustion]
matters,” id. at 279 (Souter, J., concurring in part and concurring in the judgment). The
Supreme Court has written, in dictum, that “[a] petitioner’s reasonable confusion about
whether a state filing would be timely will ordinarily constitute ‘good cause’ for him to file
in federal court.” Pace v. DiGuglielmo, 544 U.S. 408, 416 (2005). As many
experienced attorneys may on occasion find themselves confused wading through the
morass of the exhaustion doctrine, it comes as no surprise that Petitioner can easily
demonstrate reasonable confusion about where and when to file. See Whitley v.
Ercole, 509 F. Supp. 2d 410, 419-20 (S.D.N.Y. 2007). This reasonable confusion is
particularly likely where, as here, Petitioner has unexhausted claims mixed in with other
ineffective-assistance-of-counsel claims. See Cowan v. Stovall, No. 2:06-CV-13846,
2008 WL 4428009, at *5-*8 (E.D. Mich. Sept. 30, 2008) (rejecting ineffective assistance
claims on the merits in denying petition).

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The court’s conclusion is not affected by Respondent’s argument that, because
Petitioner knew of the factual predicate giving rise to her failure-to-interview claim at the
time of her direct appeal, she cannot show good cause for her failure to raise it at that
time, when she was represented by counsel. In light of the finding in the court of
appeals that Petitioner’s failure-to-interview claim “is anything but frivolous,” Cowan,
645 F.3d at 820, Petitioner can show good cause on the theory that her appellate
counsel was ineffective for failing to raise it on direct appeal, see Wagner, 581 F.3d at
419 & n.4, 5 (“At the very least, Petitioner seems to have a compelling ‘good cause’
argument that his appellate counsel was ineffective for failing to raise [his unexhausted]
claims on appeal to the state court of appeals.”); Dunnuck v. Howes, No. 1:09-cv-1163,
2010 WL 549535, at *4 (W.D. Mich. Feb. 10, 2010); cf. Rhines, 408 F. Supp. 2d at 84849 (holding that petitioner is not required to show that “the assistance of counsel was so
ineffective as to violate the Federal Constitution” in order to establish good cause under
Pace and Rhines). Moreover, regardless of whether failing to raise the failure-tointerview claim constitutes ineffective assistance of appellate counsel, there is no
reason to expect the pro-se Petitioner to know that her counsel should have raised this
issue on direct appeal in order to fulfill the exhaustion requirement. See Ramchair v.
Conway, No. 04 CV 4241(JG), 2005 WL 2786975, at *18 (E.D.N.Y. Oct. 26, 2005). As
discussed above, Petitioner’s reasonable confusion on this point constitutes good cause
in and of itself.
Thus, even though the court previously found there was no good cause for the
failure to present the claims to the state courts the first time around, Cowan, 2008 WL
659715, at *9, upon reconsideration of the matter in view of the decision of the court of
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appeals and of the case law that has been handed down since that time, the court holds
there was good cause. Therefore, the matter will be stayed and the petition held in
abeyance. The court will set reasonable time limits for Petitioner to exhaust her claims
and also to return to this court once they are exhausted. See Rhines, 544 U.S. at 27778.
III. CONCLUSION
Accordingly, IT IS ORDERED that Petitioner’s motion to amend petition for writ of
habeas corpus [Dkt. # 21] is GRANTED IN PART. It is GRANTED with respect to
Petitioner’s ineffective-assistance-of-counsel claim based on a theory of counsel’s
failure to interview certain key witnesses. This claim relates back to the original petition,
and is now the only claim remaining in the pending petition.
IT IS FURTHER ORDERED that Petitioner’s “Motion to Allow Petitioner to Return
to State Courts Seeking Exhaustion of New Claims by Way of Motion for Relief From
Judgment Under MCR 6.500 and Hold Habeas Petition in Abeyance” [Dkt. # 57] is
GRANTED.
IT IS FURTHER ORDERED that the case is STAYED and the petition is HELD
IN ABEYANCE pending exhaustion of the unexhausted claim, which is already before
the Oakland County Circuit Court on Petitioner’s motion for relief from judgment.
Petitioner shall file a motion to lift the stay and an amended petition in this court within
sixty days following the conclusion of the state-court proceedings.
Finally, IT IS ORDERED that, to avoid administrative difficulties, the clerk of court
is DIRECTED to close this case for statistical purposes only. Nothing in this order or in
the related docket entry shall be considered a dismissal of this matter. Upon receipt of
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a motion to lift the stay following exhaustion of state remedies, the court will order the
clerk to reopen this case for statistical purposes.

s/Robert H. Cleland
ROBERT H. CLELAND
UNITED STATES DISTRICT JUDGE
Dated: August 31, 2011
I hereby certify that a copy of the foregoing document was mailed to counsel of record
on this date, August 31, 2011, by electronic and/or ordinary mail.

s/Lisa Wagner
Case Manager and Deputy Clerk
[phone]

S:\Cleland\JUDGE'S DESK\C2 ORDERS\06-13846.COWAN.StayHoldInAbeyance.set.v2wpd.wpd

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