Cowan v. Stovall
OPINION AND ORDER DENYING 75 Amended Petition for Writ of Habeas Corpus filed by Tracey Lynn Cowan and DENYING a Certificate of Appealability Signed by District Judge Robert H. Cleland. (LWag)
UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF MICHIGAN
TRACY LYNN COWAN,
Case No. 06-13846
OPINION AND ORDER DENYING AMENDED PETITION FOR WRIT OF HABEAS
CORPUS AND DENYING CERTIFICATE OF APPEALABILITY
In 2006, Tracy Lynn Cowan, who is serving a lengthy prison sentence at a
Michigan prison, filed a petition for writ of habeas corpus under 28 U.S.C. § 2254,
challenging her Oakland Circuit Court jury trial conviction of possession with intent to
deliver more than 650 grams of a cocaine, Mich. Comp. Laws § 333.7401(2)(a)(1),
possession with intent to deliver marijuana, Mich. Comp. Laws § 333.7401(2)(d)(3), and
two counts of commission of a felony with a firearm, Mich. Comp. Laws § 750.227b.
(ECF No. 1.)
In 2008, the court denied relief. (ECF No. 40.) Cowan appealed the decision, and
the Sixth Circuit in remanded the case for the court to determine whether Cowan should
be granted leave to present an unexhausted claim of ineffective assistance of counsel
to the state courts. (ECF No. 52.) The Sixth Circuit found that Cowan had made a
persuasive offer of proof that her trial counsel was ineffective for failing to investigate
and call defense witnesses at trial to support her defense that she did not have
possession of the narcotics forming the basis for her convictions. After protracted
proceedings in the state courts, the trial court held an evidentiary hearing on the claim.
Cowan was unable to make good on her offer of proof when only one of four uncalled
defense witnesses testified. The state trial and appellate courts thereafter denied relief.
In 2019, having exhausted her state court remedies, Cowan filed an amended
habeas petition. (ECF No. 75.) The amended petition raises not only the failure-toinvestigate claim, but also numerous additional claims of ineffective assistance of
counsel new to this action. The court will deny the amended petition because the state
court reasonably adjudicated Cowan’s failure-to-investigate claim, and her new claims
are barred by the statute of limitations. The court will also deny Cowan a certificate of
The Michigan Court of Appeals summarized the police investigation leading to
the charges against Cowan:
A charged drug-dealer-turned-informant named a man who lived on
Clarita Street in Wayne County as one of his sources for cocaine. Police
began monitoring the address and confirmed that the address
experienced heavy foot traffic and other activity indicative of a drug house.
Police observed as the informant called his source and set up a cocaine
purchase. Police then monitored the informant as he arrived at the Clarita
Street address and discussed the proposed sale with his source. The
source confirmed that he would provide the informant with the requested
cocaine and asked the informant to drive him to a different house defendant’s residence. The informant obliged and the source entered
defendant’s residence, returning a few minutes later with a plastic baggie
containing 2½ ounces of a powdery white substance in his pocket. They
then returned to the Clarita Street address, and the source took the baggie
inside. Police continued to monitor the situation as the source came back
out of the house and entered the unattached garage. When the source
came out of the garage, he carried two small baggies of cocaine, which he
gave to the informant. The informant paid the source with prerecorded bills
provided by police and drove away. He drove to a rendezvous point and
turned the baggies over to police.
Police sought warrants for both the house on Clarita Street and
defendant’s house. According to the affidavit for the warrant on
defendant’s house, the informant told police that the source went into
defendant’s house and returned with 3 to 4 ounces of cocaine. To bolster
the informant’s credibility, the affidavit indicates that the informant
voluntarily conducted the buy, and that he provided narcotics information
contrary to his penal interest. While the affidavit did not mention that the
informant had been charged with possession of a controlled substance,
later testimony revealed that the informant was not promised leniency but
was only assured by police that they would vouch for his cooperation at
sentencing. The affidavit also claims, in a conclusory manner, that the
informant was a credible and reliable source of information based on
undisclosed personal observations. The magistrate issued a search
warrant for defendant’s home.
During their search of defendant’s house, police discovered over
700 grams of cocaine, over 250 grams of marijuana, baggies and other
packaging material, a scale, a loaded twelve-gauge shotgun, a loaded
nine-millimeter handgun, and women’s clothing in a closet in the master
bedroom. In the basement, police found several “cocaine presses” for
turning powder cocaine into densely packed “bricks,” a blender, singleedged razor blades, baking soda and other “cutting” agents, a digital
scale, rubber gloves, more packaging, and another 800 grams of cocaine.
One of the boxes of baking soda had defendant’s thumbprint on it.
People v. Cowan, Case No. 250838, 2005 WL 119811, at *1 (Mich. Ct. App. Jan. 20,
Cowan and another man directly involved in the control buy were later charged
with narcotics and firearm offenses. Cowan was not charged for participating in the
controlled buy itself. Rather, the charges against her concerned the cocaine, marijuana,
and firearms found inside a house located on Appoline Street in Detroit. The Michigan
Court of Appeals characterized the residence as “defendant’s house” in its opinion, a
fact Cowan now disputes. Cowan was inside the Appoline residence with her children
when police raided it the night after the controlled buy. Police believed Cowan jointly
possessed the cocaine with another man who was not present—her former boyfriend
Rory Jones—because much of it was found in the closet of the locked master bedroom,
Cowan admitted to having a key to that room, women’s clothing were found in the room,
and letters bearing Cowan’s name with the Appoline address were also found in the
room. Jones was not prosecuted at the time of Cowan’s trial.
At trial, Shannon Portis testified to his agreement to participate in the controlled
buy, which included his drug-dealing contact taking him to the Appoline residence. (ECF
No. 8, PageID.551-58.) Portis did not go inside the Appoline residence, nor did he see
Cowan at any point during the operation. (Id.)
Farmington Hills Police Officer Richard Wehby testified that he was assigned to a
narcotics task force at the time of the offense. Wehby reached an agreement with Portis
to conduct a purchase of cocaine. (Id., PageID.575.) Officers followed Portis during the
operation to both residences, and Wehby’s testimony largely corroborated Portis’
account of the operation. (Id., PageID.576-79.) After the buy, Wehby obtained search
warrants for both the Clarita and Appoline residences. (Id., PageID.582.)
Wehby was present when the Appoline house was searched on the night after
the controlled buy. (Id., PageID.583.) Cowan was inside the residence, but she did not
appear to have come from the locked master bedroom when officers entered the house.
(ECF No. 8-2, PageID.617.) Officers forced entry into the locked bedroom, and inside
Wehby found a closet with another lock on it. (Id., PageID.589.) Inside the closet,
officers discovered a package of 549 grams of cocaine, another package of 114.5
grams of cocaine, and a loaded handgun. (Id., PageID.590-91, 597.) Women’s but not
men’s clothing were also located in the master bedroom and closet. (Id., PageID.597.)
Wehby also found numerous letters bearing Cowan’s name addressed to the Appoline
residence inside the master bedroom. (Id., PageID.587-88.) A quantity of marijuana was
found in a gallon-sized zip-lock bag in the closet as well, and on top of it there was an
empty cigar box from which Cowan’s fingerprint was later identified. (Id., PageID.61213, 616.)
On cross-examination, Wehby noted that some of the correspondence found at
Appoline also bore Cowan’s name, but it was addressed to 522 Smith Street in Detroit.
(Id., PageID.626.) A checkbook bearing Cowan’s name also listed the Smith Street
address. (Id., PageID.627.) Wehby conceded that it was possible that Appoline was
used as a stash house for a narcotics dealer who lived elsewhere. (Id., PageID.628-29.)
Oakland County Sheriff’s Deputy Dave Scott was also present during the search.
(ECF No. 8-3, PaageID.401.) He searched the basement, and behind the furnace area
he located a locked pantry. (Id., PageID.403, 411.) Scott found two cocaine presses and
cocaine residue in the area. (Id., PageID.404-05.) Inside the pantry, Scott also found
800 grams of cocaine individually packaged into bricks, a blender, cutting agents,
baggies, and razor blades. (Id., PageID.411-14, 416-18.)
Farmington Hills Police Officer Paul Nicholas also participated in the search.
(ECF No. 8-4, PageID.449.). He testified that when he entered the master bedroom
where the cocaine was found, the closet in the master bedroom was unlocked and
already partially opened. (Id., PageID.450.)
Farmington Hills Police Detective Kevin Cronin testified that he was also present
during the search. He subsequently interviewed Cowan and videotaped the interview.
(Id., PageID.492.) Cowan never admitted to knowing that cocaine was present in the
house, and she denied being at the house at the time of the controlled buy. (Id.) Cowan
admitted to Cronin that she had keys to the locked doors. (ECF No. 8-5, PageID.495.)
Cronin’s tactic was to try to obtain a statement by Cowan that the cocaine belonged to
Rory Jones. (Id., PageID.495-97.) Cronin testified that based on his experience as a
narcotics officer, however, he believed that the cocaine belonged to both Jones and
Cowan. (Id., PageID.497.) Cronin explained that there was over $150,000 worth of
cocaine discovered, and in his experience a drug dealer would not leave that much
cocaine with someone they did not trust. (Id.) Cronin did not know that Rory Jones
would not be home when they raided the house. (Id., PageID.518.)
Oakland County Sheriff’s Deputy Ann Horsman was qualified as an expert in
fingerprint identification. (ECF No. 7, PageID.282.) Horsman found one identifiable print
for Cowan on the empty cigar box found in the master bedroom closet. (Id.,
After the prosecution rested, defense counsel moved for a directed verdict. (Id.,
PageID.312.) Counsel argued that there was no evidence that Cowan was aware of the
presence of the narcotics in the residence. (Id.) The motion was denied. (Id.,
Retired Detroit Police Detective Theo Smith testified that he was hired as
Cowan’s private investigator. (ECF No. 7-2, PageID.222-23.) He identified photographs
of the basement and noted that the cellar could not be seen from most of the basement.
(Id., PageID.233.) He further noted that in order to see all the way into the closet in the
master bedroom, he had to move other items out of the way. (Id., PageID.260.) This
testimony was aimed at establishing that a person staying at the Appoline residence
might not be aware of the presence of the narcotics.
The jury found Cowan guilty of the charged offenses, and Cowan pursued a
direct appeal. Her appellate counsel filed an appellate brief that raised three claims:
I. The trial court erred in denying Defendant’s request for a Franks
hearing, and in denying her motion to suppress the evidence which was
discovered as the result of the execution of the search warrants in this
II. Defendant’s Federal and State constitutional rights to the effective
assistance of counsel were violated where she was prejudiced by her
lawyer’s failure to perform at an objective standard of reasonable
competence [for (1) failing to object to “profiling” evidence, (2) eliciting
testimony whether Cowan’s home might be a “stash house,” and (3) failing
to object to opinion testimony from the interrogating officer.]
III. The trial court erred in declining to sentence Defendant pursuant to the
amended narcotics sentencing statutes where Defendant was not
convicted until after the effective date of those amendments.
The Michigan Court of Appeals affirmed the trial court in an unpublished opinion.
Cowan, 2005 WL 119811. Cowan subsequently filed an application for leave to appeal
in the Michigan Supreme Court, but it was denied by standard order. Cowan, 702
N.W.2d 579 (Table) (Mich. 2005).
Cowan then filed the instant action, initially raising only her direct appeal claims.
After Respondent filed its answer, and after the statute of limitations had expired,
Cowan filed a motion to amend her petition to include eight new claims: (1) trial counsel
was ineffective for failing to timely move for the admission of the defense videotape of
the layout of the Appoline residence; (2) trial counsel failed to raise an alibi defense and
interview alibi witnesses; (3) trial counsel failed to object to prosecutorial misconduct;
(4) trial counsel failed to object to the prosecutor’s inadequate pre-trial investigation; (5)
the prosecutor committed misconduct by improper vouching, improper bolstering, and
failing to investigate the possible perjury by a prosecution witness; (6) Cowan was
denied her right to present a defense by when she was denied leave to present video
and photo evidence; (7) Cowan’s alibi defense shows she is innocent; and (8) appellate
counsel was ineffective for failing to raise meritorious claims. (ECF No. 21.)
The court denied Cowan’s motion to amend because the new claims did not
relate back to the original petition, rendering them time-barred under 28 U.S.C. §
2244(d). (ECF No. 29.) The Court subsequently determined that the claims Cowan
raised in her original petition were meritless, and it denied the petition and denied a
certificate of appealability. (ECF No. 40.)
Cowan appealed, and the Sixth Circuit granted her a certificate of appealability
with respect to her ineffective assistance of trial counsel claim. (ECF No. 51.) The Sixth
Circuit subsequently reversed in part, finding that Cowan’s unexhausted failure to
investigate claim was not clearly meritless, related back to the filing of her original
petition that alleged trial counsel was ineffective for failing to investigate a defense, and
it was therefore not time barred. Cowan v. Stovall, 645 F.3d 815, 817, 819-20 (6th Cir.
2011). The decision denying the petition was otherwise affirmed. Id. at 817, 821.
The Sixth Circuit described the potential merit of the unexhausted failure to
investigate claim as follows:
Cowan’s claim is that her lawyer was ineffective as a result of his
failure to interview at least four other witnesses who were in the Appoline
house on the date of the controlled buy and raid. That omission itself
amounted to patently deficient performance on her lawyer’s part. And we
think it only common sense that the prejudice that flowed from that
omission comprises all of the testimony that the record suggests those
witnesses would have offered. The record is not fully developed before us,
in part because the claim is unexhausted. But the record does include
sworn affidavits from four witnesses whom Perlman should have
interviewed. Those affidavits suggest that at least two witnesses—one of
whom was Rory Jones’s son—would have testified that Cowan had been
absent not only during the controlled buy, but also when Jones allegedly
stashed the drugs in the house that same day. See Tucker Aff. ¶ 6;
Richard Carter Aff. ¶ 5. The latter affidavit also says that Cowan became
upset with Jones on one occasion when he left drugs in the house. Id. ¶ 7.
Further development of the claim may yield additional relevant testimony.
None of this is to say, of course, that Cowan’s claim is actually
meritorious; that issue is for the state courts to decide, at least in the first
instance. But it is to say that we should not dismiss the claim out of hand
as frivolous. Even the Warden conceded at oral argument before us that
we should remand the claim, rather than dismiss it outright, if we held that
it was timely presented and unexhausted—and now we have so held.
Id. at 820.
Because the new claim was unexhausted, the Sixth Circuit remanded the case
for the court to determine whether Cowan could establish good cause for failing to
previously present her new claim to the state courts such that the habeas petition
should be stayed to allow her to exhaust the claim. Id. at 820-21. The court found that
Cowan demonstrated good cause to warrant a stay, and it directed Cowan to return to
state court and exhaust her “ineffective assistance of counsel claim based on a theory
of counsel’s failure to interview certain key witnesses.” (ECF No. 60, PageID.1792.)
Cowan thereafter filed a motion for relief from judgment in the trial court. The
motion, however, was not limited to the one claim determined by the Sixth Circuit to
relate back to the filing of the petition, but instead it raised a total of fourteen new
claims. The case sat in the trial court for a period of several years without any
movement due to a clerical error. The trial court eventually appointed counsel for
Cowan, and he filed an amended motion for relief from judgment that raised two
additional claims of ineffective assistance of trial counsel. The trial court denied the
motions because the claims lacked merit and under Michigan Court Rule 6.508(D)(3).
(ECF No. 82-5.)
Cowan then filed an application for leave to appeal in the Michigan Court of
Appeals, but it was denied by form order. (ECF No. 82-10.) Cowan then filed an
application for leave to appeal in the Michigan Supreme Court. The Michigan Supreme
Court remanded the case back to the trial court for a hearing on two issues: “(1)
whether the defendant’s trial counsel was ineffective for failing to call witnesses who
may have provided exculpatory information; and (2) whether the defendant is entitled to
relief from judgment based on these claims.” People v. Cowan, 902 N.W.2d 418
(Table) (Mich. 2017).
The trial court conducted the evidentiary hearing on June 8, 2018. Besides her
own testimony, Cowan presented only one of the four witnesses she claimed her
counsel should have interviewed and called as defense witnesses, her daughter Rachel
Carter. Cowan’s trial counsel, David Perlman, had since passed away.
Rachel Carter testified at the hearing that at the time of the police raid, she was a
teenager and lived at the Appoline residence with her siblings Crystal and Richard, as
well as Rory Jones’ son Papillon, who she regarded as a brother. (ECF No. 82-6,
PageID.2199.) When asked about her siblings’ whereabouts, Carter testified that
Papillon had “his own court issues” in another state but lived in Detroit. (Id.,
PageID.2199, 2202.) She had no contact with Richard for the last few months. (Id.,
PageID.2199.) And Crystal lived in Georgia, knew about hearing, but was unable to
make the trip. (Id.)
During the time period of the police raid, Carter explained that Cowan “stayed
back and forth” between Appoline and her grandmother’s house on Smith Street,
though she spent more time at her grandmother’s house. (Id., 2219-20.) The Appoline
residence was Cowan’s childhood home. (Id., PageID.2200.) While Carter and her
siblings lived there, Cowan would come to the Appoline residence “mostly every day.”
(Id.) But she did not often sleep there. (Id.)
On the day of raid, Cowan drove Carter and Crystal home to the Appoline
residence after school, and Cowan stayed the night. (Id., PageID.2201.) Rory Jones
was also at the house that evening, but Carter did not know who arrived at the Appoline
residence first. (Id.) They did not arrive home until around 6:30 p.m. that evening. (Id.,
PageID.2210.) Rory left the residence after they arrived home. (Id.) Carter testified that
Jones helped pay rent for Appoline because his son Pappilon, who was not related to
Cowan, lived there. (Id., PageID.2201.) Jones was not there when the police came. (Id.,
PageID.2202.) According to Carter, Jones had permission from Cowan to stay at the
Appoline residence. (Id.)
Carter testified that Cowan had “left her bedroom set and maybe some clothes in
her closet and . . . some stuff in the drawer but a lot or her stuff was at my
grandmother’s house.” (Id., PageID.2202-03.) Carter estimated that “it was probably
even, she had a whole room in my grandmother’s house too, so she had stuff over there
too, so it might have been even.” (Id., PageID.2203.) Further, Carter stated that when
Cowan slept at Appoline, Cowan stayed in the bedroom where the cocaine and guns
were later found. (Id.) That was also the room that Jones used when he stayed over,
though Cowan and Jones never slept in the room on the same night. (Id., PageID.2203,
2210.) According to Carter, both Cowan and Jones had keys to that bedroom and to the
locked closet inside it. (Id., PageID.2203.) Cowan “paid the bills” for Appoline, and
Jones helped. (Id., PageID.2207.)
Carter testified that she moved to the Appoline residence with her siblings and
Cowan sometime in 1999. (Id., PageID.2206.) She confirmed that both Rory Jones and
Cowan were at the Appoline house at the same time on the day before the nighttime
police raid. (Id., PageID.2207.)
Cowan also testified at the evidentiary hearing. She said that she stayed
overnight at Appoline only once a month or so at the time of the raid, and it was
coincidental that she happened to be there on the night of the police raid. (Id.,
PageID.2212.) Cowan testified that she nevertheless went to the Appoline residence
almost every day because her children lived there. (Id., PageID.2215.) She testified that
most of her clothes, however, were at Smith Street. (Id., PageID.2213.) She admitted to
having a key to the master bedroom, but she said the key to the locked closet was kept
in the linen closet. (Id., PageID.2212.)
Cowan testified that Rory Jones was never a resident of the house. (Id.) They
had broken up years before. (Id.) Jones gave Cowan money from time to time, as his
son Papillon lived at Appoline. (Id., PageID.2215.) Cowan did not know whether Jones
had a key to the master bedroom, but she conceded that he must have, since the drugs
were found there. (Id., PageID.2212.) On the day of the raid, contrary to her daughter’s
testimony, Cowan said that Jones was not at the house when they arrived home. (Id.)
Cowan was not aware that cocaine was being sold out of the house or that it was
present in the house that night. (Id., PageID.2212-13.)
Cowan testified that she had no recent contact with Papillon. (Id., PageID.2213.)
Nor had she talked with Richard Carter for the last few months. (Id.) Cowan explained
that Crystal was not able to attend the hearing because she lived in Georgia and could
not afford to travel. (Id., PageID.2213.)
Following the hearing, the trial court denied the motion for relief from judgment.
The court cited Michigan Court Rule 6.508(D)(3), but the body of the opinion only
discussed the merits of the claim, finding “defendant has not demonstrated that she was
denied the effective assistance of counsel by defense counsel’s failure to interview, or
call at trial, individuals that were present at the house on the evening of trial.” (ECF No.
Cowan filed a delayed application for leave to appeal in the Michigan Court of
Appeals, but that court denied leave to appeal “for failure to establish that the trial court
erred in denying the motion for relief from judgment.” (ECF No. 82-12.) The Michigan
Supreme Court likewise denied leave to appeal by standard order. People v. Cowan,
932 N.W.2d 633 (Table) (Mich. 2019).
Cowan then returned to this Court and filed her amended petition. (ECF No. 75.)
The matter has been thoroughly briefed and is ready for disposition. (ECF Nos. 81, 85.)
Title 28 U.S.C. § 2254(d) curtails a federal court’s review of constitutional claims
raised by a state prisoner in a habeas action if the claims were adjudicated on the
merits by the state courts. Relief is barred under this section unless the state court
adjudication was “contrary to” or resulted in an “unreasonable application of” clearly
established Supreme Court law or the adjudication was “based on an unreasonable
determination of the facts in light of the evidence presented.” 28 U.S.C. § 2254(d)(1)(2).
“A state court’s decision is ‘contrary to’ . . . clearly established law if it ‘applies a
rule that contradicts the governing law set forth in [Supreme Court cases]’ or if it
‘confronts a set of facts that are materially indistinguishable from a decision of [the
Supreme] Court and nevertheless arrives at a result different from [this] precedent.’”
Mitchell v. Esparza, 540 U.S. 12, 15-16 (2003) (quoting Williams v. Taylor, 529 U.S.
362, 405-06 (2000)). “[T]he ‘unreasonable application’ prong of [§ 2254(d)(1)] permits a
federal habeas court to ‘grant the writ if the state court identifies the correct governing
legal principle from [the Supreme] Court but unreasonably applies that principle to the
facts’ of petitioner’s case.” Wiggins v. Smith, 539 U.S. 510, 520 (2003) (quoting
Williams, 529 U.S. at 413).
A. Failure to Investigate
Cowan’s primary claim—and the only one for which she was granted a stay—
asserts that her trial counsel was ineffective for failing to interview and call at trial four
defense witnesses. According to Cowan, the witnesses would have shown that the
prosecutor failed to demonstrate that she possessed or knew about the cocaine and
handgun found in the Appoline residence on the date of the police raid.
Respondent argues that review of the claim is barred because the trial court
relied on Michigan Court Rule 6.508(D)(3), a state procedural rule, as a basis for
denying relief. The passage relied upon by Respondent in the trial court’s order states:
“Defendant cannot meet the ‘good cause’ and ‘actual prejudice’ standards required to
establish entitlement to relief from judgment because she has not shown that defense
counsel’s failure to interview or call as witnesses the other individuals in the home
amounted to ineffective assistance of counsel.” (ECF No. 82-9, PageID.2312.) The bulk
of the trial court’s opinion discusses only the underlying substantive merits of the claim
in light of the evidence presented at the hearing. (Id., PageID.2312-15.) Despite the
passing reference to Rule 6.508(D)(3), therefore, the opinion appears to have been a
Procedural default is not a jurisdictional bar to habeas review. See Howard v.
Bouchard, 405 F.3d 459, 476 (6th Cir. 2005). Federal courts on habeas review “are not
required to address a procedural-default issue before deciding against the petitioner on
the merits.” Hudson v. Jones, 351 F.3d 212, 215 (6th Cir. 2003) (citing Lambrix v.
Singletary, 520 U.S. 518, 525 (1997)). The Supreme Court has explained the rationale
behind such a policy: “Judicial economy might counsel giving the [other] question
priority, for example, if it were easily resolvable against the habeas petitioner, whereas
the procedural-bar issue involved complicated issues of state law.” Lambrix, 520 U.S. at
525. Such is the case here. The procedural default issue here is muddled by the fact
that the trial court made only a passing reference to a state procedural rule and mostly
rested its decision on the substantive merits of the federal claim. The court will therefore
bypass the procedural default argument and will address the merits of Cowan’s claims.
Under clearly established Supreme Court law, a violation of the Sixth
Amendment right to the effective assistance of counsel is established where an
attorney’s “performance was deficient” and “the deficient performance prejudiced the
defense.” Strickland v. Washington, 466 U.S. 668, 687 (1984). An attorney’s
performance is deficient if “counsel’s representation fell below an objective standard of
reasonableness.” Id. at 688.
To establish that she was prejudiced by her counsel’s deficient performance, a
petitioner must show “a reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different. A reasonable probability
is a probability sufficient to undermine confidence in the outcome.” Id. at 694.
“Strickland’s test for prejudice is a demanding one. ‘The likelihood of a different result
must be substantial, not just conceivable.’” Storey v. Vasbinder, 657 F.3d 372, 379 (6th
Cir. 2011) (quoting Harrington v. Richter, 562 U.S. 86, 112 (2011)). When deciding
whether counsel’s errors prejudiced a petitioner, the court “must consider the totality of
the evidence before the . . . jury,” on the assumption that “a verdict or conclusion only
weakly supported by the record is more likely to have been affected by errors than one
with overwhelming record support.” Strickland, 466 U.S. at 695.
On the whole, the standard for obtaining habeas corpus relief is “difficult to
meet.” White v. Woodall, 572 U.S. 415, 419 (2014) (quoting Metrish v. Lancaster, 569
U.S. 351, 358 (2013)). In the context of an ineffective assistance of counsel claim under
Strickland, the standard is “all the more difficult” because “[t]he standards created by
Strickland and § 2254(d) are both highly deferential . . . and when the two apply in
tandem, review is doubly so.” Harrington, 562 U.S. at 105 (internal citations and
quotation marks omitted).
Based on the trial record and the evidence elicited at the evidentiary hearing, the
state trial court’s adjudication of Cowan’s claim was reasonable. After reciting the
Strickland standard, the trial court first found that Cowan failed to demonstrate that she
was prejudiced by the failure to interview and present the defense witnesses:
At trial, the prosecutor argued that Defendant must have known
about the drugs found in the house because Defendant lived at the house.
While Carter’s testimony established that Defendant lived between the
Appoline house and her grandmother’s house, it also indicated that
Defendant visited the Appoline house, where her children lived, almost
daily, that she sometimes spent the night there, that she slept in the
bedroom where the drugs were found whenever she spent the night at the
house, and that she slept in the bedroom where the drugs were found on
the night of the raid. In addition, Defendant had a key to the locked closet
where the drugs were found. When asked whether Defendant kept
personal belongings in the Appoline house, Carter testified that, among
other items, Defendant “maybe [kept) some clothes in her closet.” Carter’s
testimony does not show that Defendant would not have known about the
drugs or that she did not exercise dominion and control over them. While
Carter’s testimony also revealed that Rory Jones had a key to the house
and the bedroom, and that he came and went at the house as he pleased,
the argument that the drugs belonged to Rory Jones, and that Rory Jones
was the person in the house that participated in the controlled buy, was
presented to the jury at trial. Specifically, defense counsel argued that the
drugs could have belonged to Rory Jones, noting that there was evidence
that Rory Jones’ car was seen at the house on the evening in question.
Essentially, while Carter’s testimony indicated that that Rory Jones may
have known about the drugs in the house, it did not negate the evidence
of Defendant’s knowledge of the drugs. Having reviewed Rachel Carter’s
testimony at the Ginther hearing, the Court cannot conclude that there is a
reasonable probability that Defendant would have been acquitted had
Rachel Carter’s testimony been presented at trial. Solomonson, 261 Mich.
App. 657, 663-664.
(ECF No. 82-9, PageID.2313-14.) The court then found that Cowan failed to
demonstrate deficient performance because if it was true, as Cowan alleged, that she
did not live at the Appoline residence, then Cowan surely would have raised the claim at
an earlier stage in the proceedings. (Id., PageID.2314.) Further, after an interview with
Cowan, the state probation department listed the Appoline residence as her address.
(Id.) The court concluded that because Cowan had not established prejudice, it did not
need to “determine whether counsel’s failure to interview and call the witnesses fell
below an objective standard of reasonableness.” (Id.)
The court will focus on the first rationale relied upon by the trial court regarding
lack of prejudice. The facts of the case did not change much after the evidentiary
hearing. The prosecutor’s trial theory was that Cowan at least constructively possessed
the cocaine and firearms found at the Appoline residence because she was an adult
who resided at the house who had a key to the room where they were locked away, and
she therefore had dominion and control over them. See People v. Burgenmeyer, 461
Mich. 431, 439, n. 12 (2000); People v. Wolfe, 440 Mich. 508, 519-20 (1992). The
testimony produced at the hearing did not undermine that theory. Carter testified that
while Cowan did not often sleep at the Appoline house, she came to the house nearly
every day, she paid the bills for the house, she was there with Jones on the day of the
raid, Jones had permission to stay there, Cowan had a key to the locked room where
the drugs were found, and she stayed in the locked room on the infrequent occasions
she slept there.
Contrary to her offer of proof, Cowan was unable to produce evidence to the
state courts when given the opportunity to do so that showed that she was prejudiced
by her trial counsel’s alleged failure to interview and present as witnesses the other
residents of the Appoline residence. Cowan represented to the Sixth Circuit and to this
court that the uncalled witnesses would testify that: (1) Cowan had moved out of the
Appoline house and therefore did not have knowledge what went on there, (2) she was
not at the residence earlier that day and had no way of knowing that Jones stashed the
drugs there on that day, and (3) that she previously became upset with Jones for
leaving drugs at the house. Had the uncalled defense witnesses testified to these
things, Cowan might have demonstrated that her counsel’s failure to interview and
present these witnesses undermines confidence in the trial outcome.
But the evidence Cowan actually presented to the state courts fell far short. She
was able to produce only her daughter Rachel Carter’s testimony. And even Carter’s
testimony was different from her affidavit. Carter stated in her affidavit that Rory Jones
was not home when she returned with her sister and Cowan after school. (ECF No. 75,
PageID.1908, Carter Affidavit.) This would have tended to indicate (along with the
information in the other affidavits) that Cowan was not there and unaware of the
possibility that Jones stashed drugs in the house that day. At the hearing, however,
Carter testified that Jones was present at the house when they returned that evening,
and that he left afterwards. Trial testimony that Cowan and Jones were at Appoline at
the same time before the raid—though certainly not dispositive—would have helped the
prosecution more than it would have helped the defense.
Moreover, Carter testified that Cowan visited the Appoline residence nearly every
day, even if she rarely slept there. She also testified that Cowan had a key to the master
bedroom where the drugs were found. And she confirmed that the women’s clothing
and belongings found in the master bedroom, in fact, belonged to Cowan. She also
testified that Cowan paid the bills for the residence with Jones’ help, and that Cowan
gave Jones permission to stay at the residence. All of this would have supported, not
undermined, the prosecutor’s argument that Cowan had constructive possession of the
drugs. The trial court therefore did not unreasonably apply the Strickland prejudice
standard when it found that Cowan failed to show a reasonable probability of a more
favorable trial outcome had trial counsel interviewed and called Carter as a witness at
trial. 28 U.S.C. § 2254(d)(1).
As for the failure to interview and call Crystal Cowan, Richard Carter, and
Papillon Tucker, Cowan failed to demonstrate Strickland prejudice when she failed to
secure these witnesses’ testimony at the hearing. Cowan bore the burden of
establishing Strickland prejudice. Cowan cites no authority (and the court is aware of
none) standing for the proposition that a defendant may demonstrate Strickland
prejudice by way of affidavit after the affiants fail to appear and testify at a hearing held
to adjudicate the merits of the claim. Indeed, Michigan law recognizes that a court may
only consider the “record evidence,” i.e., the trial record and the record of the
evidentiary hearing when determining whether the defendant has established
entitlement to relief:
“A convicted person who attacks the adequacy of the representation he
received at his trial must prove his claim. To the extent his claim depends
on facts not of record, it is incumbent on him to make a testimonial record
at the trial court level in connection with a motion for a new trial which
evidentially supports his claim and which excludes hypotheses consistent
with the view that his trial lawyer represented him adequately.” People v.
Jelks, 33 Mich. App. 425, 431 (1971).
If the record made before a defendant is convicted does not
factually support claims he wishes to urge on appeal, he should move in
the trial court for a new trial or, where the conviction is on a plea of guilty,
to set aside the plea, and seek to make a separate record factually
supporting the claims. See People v. Taylor, 387 Mich. 209, 218 (1972).
Without record evidence supporting the claims, neither the Court of
Appeals nor we have a basis for considering them.
People v. Ginther, 390 Mich. 436, 442-443 (1973).
That is a matter of state procedural law, but Cowan points to no principle of
federal law that requires a reviewing court to weigh non-record affidavits after a hearing
has been held to determine whether a defendant is entitled to relief on an ineffective
assistance of counsel claim. Rather, a habeas petitioner challenging his attorney’s
failure to present a witness at trial must show that the witness would have been
available and willing to testify in his defense, because otherwise the jury would never
hear the testimony. Coe v. Bell, 161 F.3d 320, 342 (6th Cir. 1998) (rejecting ineffective
assistance claim where “witnesses were unavailable or would not cooperate with
counsel at the time of pre-trial preparation”). That is essentially what happened here. It
is one thing to convince a witness to sign a piece of paper; it is another to secure their
sworn testimony and subject them to cross-examination at a formal court proceeding.
When Cowan failed to produce these three witnesses at the state court evidentiary
hearing, she failed to create record evidence for the state courts to consider in
determining whether she was prejudiced by her trial counsel’s failure to call them. Thus,
the trial court did not unreasonably apply federal law in failing to consider the affidavits
of the non-testifying witnesses when evaluating whether Cowan demonstrated Strikland
prejudice. 28 U.S.C. § 2254(d)(1). Accordingly, the state court’s determination that
Cowan failed to demonstrate prejudice was reasonable, precluding habeas relief under
Cowan blames the attorney appointed to represent her at the hearing and the
private investigator he used for failing to secure and present the three other witnesses.
(See ECF No. 75, PageID.1902-04, Amended Petition.) The alleged ineffectiveness of
counsel during state collateral post-conviction proceedings, however, is not a ground for
habeas relief. 28 U.S.C. § 2254(i); see also Post v. Bradshaw, 422 F. 3d 419, 423 (6th
Cir. 2005); Cooey v. Bradshaw, 338 F. 3d 615, 622 (6th Cir. 2003). In any event, postconviction counsel elicited testimony at the hearing regarding the other witnesses’
availability. Crystal Cowan lived in Georgia, and though she had been in Michigan a
month before the hearing, she could not afford or was otherwise unable to make
another trip. Papillon Tucker was apparently unwilling or unable to testify because of his
own “court issues.” And Richard Carter had simply not been in contact with Rachel
Carter or Cowan for the few months prior to the hearing. These are not some set of
extraordinary circumstances that required the trial court to credit the untested affidavits
with veracity or even to weigh them somehow in a merits analysis.
Cowan raises a few additional points of law regarding this claim. She claims that
apart from her trial counsel’s obligation to interview and call these witnesses, the
prosecutor had an independent obligation to present them because they were so-called
res gestae witnesses. The argument is unavailing for two reasons. First, it was only
before its amendment in 1986 that Mich. Comp. Laws § 767.40 required a prosecutor to
endorse and produce all res gestae witnesses. See People v. Baskin, 145 Mich. App.
526, 530-531 (1985). The amendment to the statute deleted the requirement that the
prosecutor produce such witnesses. See People v O’Quinn, 185 Mich. App. 40, 44
(1990). Second, the failure of a Michigan prosecutor to produce res gestae witnesses
does not implicate any federal constitutional right. See Lewis v. Jabe, 891 F.2d 291,
1989 WL 145895, at *2 (6th Cir. 1989); Atkins v. Foltz, 856 F.2d 192, 1988 WL 87710,
at *2 (6th Cir. 1988).
Next, citing Ramonez v. Berghuis, 490 F.3d 482, 490-91 (6th Cir. 2007), Cowan
argues that a court reviewing a claim of ineffective assistance of counsel for failing to
call defense witnesses may not evaluate the credibility of the uncalled witnesses
because such an evaluation is solely for the jury. This argument is unavailing because
the issue in Ramonez was whether a factual finding by the state court that uncalled
defense witnesses would not have been credible was subject to the presumption of
correctness under 28 U.S.C. § 2254(e)(1). Id., 490 at F.3d at 489-90. Unlike Ramonez,
the Court here is not applying § 2254(e)(1) to state-court credibility determinations
regarding the uncalled defense witnesses, and indeed the trial court did not make any
such determinations. Rather, as indicated above, the court properly evaluated the trial
court’s Strickland prejudice analysis for reasonableness under § 2254(d)(2).
Finally, citing Doggett v. United States, 505 U.S. 647 (1992), Cowan argues that
she is excused from demonstrating Strickland prejudice due to the six-year delay by the
trial court in addressing her motion for relief from judgment. Doggett is a Speedy Trial
case. It has no application to a claim of ineffective assistance of counsel. While the
delay is regrettable and evidence may have been lost as a result, no principle of clearly
established federal law required the state court to presume prejudice in such
circumstances. Thus, Cowan has failed to demonstrate entitlement to habeas relief, and
her petition will be denied.
B. Remaining Claims
Cowan’s remaining claims are time-barred. The amended petition raises
allegations of ineffective assistance of counsel that were not presented in the original
petition (ECF No. 1), nor in Cowan’s initial motion to amend her petition (ECF No. 21).
Following the remand from the Sixth Circuit, Cowan filed a motion to stay that raised the
failure to investigate claim discussed above as well as a different set of claims from the
ones considered here. (ECF No. 57.) The court granted the motion in part, staying the
case so that Cowan could present the state courts with her failure to investigate claim
only. (ECF No. 60, PageID.1792.) Then, returning from state court, Cowan presented
an amended petition which for the first time in federal court raised claims that trial
counsel was ineffective for: (1) being a drug addict at the time of trial; (2) having a
relationship due to his drug use with prosecution witness Officer Scott; (3) failing to
obtain discovery materials from the prosecution; (4) misstating evidence at trial that
Cowan owned the Appoline residence and that her fingerprints were found on a baking
soda box rather than the cigar box; (5) failing to obtain cell phone records showing that
Cowan was not involved in the conversations between the participants of the controlled
buy; (6) failing to compel the production of res gestae witnesses; (7) failing to file a
notice of alibi; and (8) failing to review the presentencing information report with Cowan
prior to sentencing. 1
As the court explained in its previous order, the one-year limitations period for
filing the habeas petition expired on November 30, 2006. (ECF No. 29, PageID.1469.)
Yet the additional allegations of ineffective assistance of counsel were first presented to
this court in Cowan’s amended habeas petition filed on November 13, 2019, well after
expiration of the limitations period.
An untimely amendment to a habeas petition “relates back” to an original petition
filed within the one-year limitations period only if the original petition and the amended
petition arise out of the same “conduct, transaction, or occurrence” under Fed. R. Civ.
P. 15(c)(1)(B). See Mayle v. Felix, 545 U.S. 644, 664 (2005). Under Mayle, to qualify for
relation back, the original and amended petitions must “state claims that are tied to a
Cowan also claims in her amended petition that her trial counsel failed to object
to the admission of drug-profile evidence. That claim was raised in the original petition
and rejected on the merits. (ECF No. 40, PageID.1557-58.) The Sixth Circuit affirmed
that determination. Cowan, 645 F.3d at 817, 821.
common core of operative facts.” 545 U.S. at 664. Mayle cautioned, however, not to
read the “conduct, transaction, or occurrence” requirement so broadly as to render
meaningless the statute of limitations. Id. at 662-64.
Distinct factual bases for claims of ineffective assistance of counsel generally do
not arise out of the same conduct, transaction, or occurrence in this context. See, e.g.,
Clark v. United States, 2021 U.S. App. LEXIS 18999, at *9 (6th Cir. June 24, 2021)
(holding that counsel’s alleged failure to investigate case, to interview and call
witnesses, and to file a notice of appeal did not relate back to allegation that counsel
was ineffective regarding plea advice because there was “no overlap of operative
facts”); Watkins v. Deangelo-Kipp, 854 F.3d 846, 850 (6th Cir. 2017) (finding that an
allegation that counsel failed to request a psychiatric evaluation did not relate back to
broad allegation that counsel failed “to investigate and raise a defense”); United States
v. Clark, 637 F. App’x 206, 209 (6th Cir. 2016) (holding that a claim that appellate
counsel failed to challenge drug amounts used to calculate base offense level did not
relate back to claim that appellate counsel failed to challenged career offender
enhancement); Evans v. United States, 284 F. App’x 304, 305, 313 (6th Cir. 2008)
(reasoning that a claim that trial counsel failed to pursue particular avenue of
impeachment did not relate back to claim that trial counsel gave incorrect plea advice);
Cox v. Curtin, 698 F. Supp. 2d 918, 931 (W.D. Mich. 2009) (“[A] petitioner does not
satisfy the Rule 15 ‘relation back’ standard merely by raising some type of ineffective
assistance in the original petition, and then amending the petition to assert another
ineffective assistance claim based upon an entirely distinct type of attorney
misfeasance.”) (quoting United States v. Ciampi, 419 F.3d 20, 24 (1st Cir. 2005)).
The new claims of ineffective assistance of counsel Cowan asserted in her
motion for relief from judgment and then included in her amended habeas petition do
not share a common core of operative facts with the claims presented in her original
petition, her initial motion to amend, or even in her motion to stay following the remand
order. They all concern a different set of acts or omissions on the part of her trial
counsel from those that appeared in the prior pleadings. To hold that such a new list of
particular allegations of ineffective assistance relate back to a different list of specific
allegations would be to construe “conduct, transaction, or occurrence” so broadly as to
render meaningless the statute of limitations. Mayle, 545 U.S. at 662-64. Accordingly,
review of Cowan’s remining claims is barred by the statute of limitations. As none of
Cowan’s claims merit relief, the petition will be denied.
C. Certificate of Appealability
Before Cowan may appeal this decision, the court must determine whether to
issue a certificate of appealability. See 28 U.S.C. § 2253(c)(1)(A); Fed. R. App. P. 22(b).
A certificate of appealability may issue “only if the applicant has made a substantial
showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). To satisfy §
2253(c)(2), Cowan must show “that reasonable jurists could debate whether (or, for that
matter, agree that) the petition should have been resolved in a different manner or that
the issues presented were adequate to deserve encouragement to proceed further.”
Slack v. McDaniel, 529 U.S. 473, 484 (2000) (citation and internal quotation marks
omitted). The court finds that reasonable jurists would not debate the resolution of any
of Cowan’s claims. Thus, the court will deny a certificate of appealability.
IT IS ORDERED that the “Amended Petition for Writ of Habeas Corpus” (ECF
No. 75) is DENIED.
IT IS FURTHER ORDERED that a Certificate of Appealability is DENIED.
s/Robert H. Cleland
ROBERT H. CLELAND
UNITED STATES DISTRICT JUDGE
Dated: July 15, 2021
I hereby certify that a copy of the foregoing document was mailed to counsel of record
on this date, July 15, 2021, by electronic and/or ordinary mail.
Case Manager and Deputy Clerk
S:\Cleland\Cleland\JUDGE'S DESK\C2 ORDERS\0613846.COWAN.DenyingPetitionforHabeasCorpusandCertificateofAppealability.BHB.RMK.docx
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