McCowen #343340 v. Palmer
Filing
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OPINION; Order and Judgment to issue; signed by Judge Janet T. Neff (Judge Janet T. Neff, clb)
UNITED STATES OF AMERICA
UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
ROBERT McCOWEN,
Petitioner,
v.
Case No. 1:15-cv-443
Honorable Janet T. Neff
CARMEN PALMER,
Respondent.
_______________________________/
OPINION
This is a habeas corpus action brought by a state prisoner pursuant to 28 U.S.C.
§ 2254. Promptly after the filing of a petition for habeas corpus, the Court must undertake a
preliminary review of the petition to determine whether “it plainly appears from the face of the
petition and any exhibits annexed to it that the petitioner is not entitled to relief in the district court.”
Rule 4, RULES GOVERNING § 2254 CASES; see 28 U.S.C. § 2243. If so, the petition must be
summarily dismissed. Rule 4; see Allen v. Perini, 424 F.2d 134, 141 (6th Cir. 1970) (district court
has the duty to “screen out” petitions that lack merit on their face). A dismissal under Rule 4
includes those petitions which raise legally frivolous claims, as well as those containing factual
allegations that are palpably incredible or false. Carson v. Burke, 178 F.3d 434, 436-37 (6th Cir.
1999). After undertaking the review required by Rule 4, the Court concludes that the petition must
be dismissed because it fails to raise a meritorious federal claim.
Factual Allegations
Petitioner Robert McCowen presently is incarcerated at the Michigan Reformatory.
Following a jury trial in the Wayne County Circuit Court, Petitioner was convicted of four counts
of first-degree criminal sexual conduct (CSC I), MICH. COMP. LAWS § 750.520b, two counts of
second-degree criminal sexual conduct (CSC II), MICH. COMP. LAWS § 750.520c, and one count of
bribing, influencing or intimidating a witness, MICH. COMP. LAWS § 750.122(7)(b). On March 16,
2012, he was sentenced to prison terms of 30 to 50 years for each of the CSC I convictions, 5 to 15
years for each of the CSC II convictions, and 5 to 10 years for the witness-intimidation conviction.
Petitioner appealed his convictions to the Michigan Court of Appeals, raising a single
claim:
I.
WHERE THE WEIGHT OF THE EVIDENCE SO PREPONDERATES
AGAINST THE VERDICT THAT DUE PROCESS UNDER THE
FOURTEENTH AMENDMENT, AND CONST. 1963, ART. 1 §17, IS
VIOLATED, IS A NEW TRIAL REQUIRED?
(Def.’s Br. on Appeal, Ex. B. to Pet., docket #2-1, Page ID#46.) In an unpublished opinion issued
on October 17, 2013, the court of appeals rejected Petitioner’s claim and affirmed his convictions.
(10/17/13 Mich. Ct. App. Op. (MCOA Op.), Ex. A. to Pet., docket #2-1, Page ID##38-40.)
Petitioner sought leave to appeal to the Michigan Supreme Court, raising the same issue presented
to the court of appeals. The Supreme Court denied leave to appeal on February 28, 2014. (2/28/14
Mich. Sup. Ct. Ord. (MSC Ord., docket #2-1, Page ID#64.)
Petitioner filed the instant habeas petition on or about April 23, 2015, again arguing
that the jury’s verdict was against the great weight of the evidence. The petition was timely filed.
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Discussion
This action is governed by the Antiterrorism and Effective Death Penalty Act of
1996, PUB. L. 104-132, 110 STAT. 1214 (AEDPA). See Penry v. Johnson, 532 U.S. 782, 792 (2001).
The AEDPA “prevents federal habeas ‘retrials’” and ensures that state court convictions are given
effect to the extent possible under the law. Bell v. Cone, 535 U.S. 685, 693-94 (2002). The AEDPA
has “drastically changed” the nature of habeas review. Bailey v. Mitchell, 271 F.3d 652, 655 (6th
Cir. 2001). An application for writ of habeas corpus on behalf of a person who is incarcerated
pursuant to a state conviction cannot be granted with respect to any claim that was adjudicated on
the merits in state court unless the adjudication: “(1) resulted in a decision that was contrary to, or
involved an unreasonable application of, clearly established federal law as determined by the
Supreme Court of the United States; or (2) resulted in a decision that was based upon an
unreasonable determination of the facts in light of the evidence presented in the state court
proceeding.” 28 U.S.C. § 2254(d). This standard is “intentionally difficult to meet.” Woods v.
Donald, 575 U.S. __, 135 S. Ct. 1372, 1376 (2015) (internal quotation marks omitted).
Petitioner argues in his brief in support of his habeas petition and in his brief on
appeal to the Michigan Court of Appeals that his daughter’s testimony was not credible for a variety
of reasons: she gave conflicting statements over a period of time; she had motive to lie because she
was mad at Petitioner for taking her phone and not letting her date older boyfriends; she blamed
Petitioner for her mother’s drug addiction; and DNA analysis of the rape kit obtained from the
complainant showed a sperm cell from another man but none from Petitioner. Petitioner also argued
that other witnesses at trial, including the complainant’s mother, stepmother, and grandmother, all
testified that they had not seen abuse and that they believed Petitioner to be a good father. Petitioner
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contends that, under these circumstances, the verdict was against the great weight of the evidence,
ostensibly in violation of the Fourteenth Amendment and the Michigan Constitution.
Notwithstanding his invocation of the Fourteenth Amendment, Petitioner’s claim that
the verdict was against the great weight of the evidence does not state grounds for habeas corpus
relief.1 The extraordinary remedy of habeas corpus lies only for a violation of the Constitution. 28
U.S.C. § 2254(a). The Michigan courts apply the great-weight-of-the-evidence standard to
determine whether to grant a new trial. See People v. Lemmon, 576 N.W.2d 129, 137 (Mich. 1998).
This question is distinct from the due-process guarantee offended by insufficient evidence and “does
not implicate issues of a constitutional magnitude.” Id. at 133 n.8. As a consequence, a “weight of
the evidence claim” is purely a matter of state law and is not cognizable on habeas review. See 28
U.S.C. § 2254(a); Wilson v. Corcoran, 562 U.S. 1, 5 (2010) (“[I]t is only noncompliance with
federal law that renders a state’s criminal judgment susceptible to a collateral attack in the federal
courts.”); Estelle v. McGuire, 502 U.S. 62, 68 (1991) ( “In conducting habeas review, a federal court
is limited to deciding whether a conviction violated the Constitution, laws, or treaties of the United
States.”); accord Chatman v. Warden Ross Corr. Inst., No. 2:10–cv–1091, 2013 WL 1663919, at
*10 (S.D. Ohio Mar. 26, 2013); Underwood v. Berghuis, No. 1:08–cv–642, 2011 WL 693 8471, at
*15 (W.D. Mich. Aug. 8, 2011) (“Since a ‘weight of the evidence claim’ is purely a matter of state
law, it is not cognizable on habeas review.”). The state court examined Petitioner’s claim under
state law and found it to be without merit. Because this Court lacks authority to review a state
1
The sole cognizable habeas claim concerning the adequacy of proofs is a claim that the evidence is
constitutionally insufficient to support the verdict, in violation of the Due Process Clause. A § 2254 challenge to the
sufficiency of the evidence is governed by the standard set forth by the Supreme Court in Jackson v. Virginia, 443 U.S.
307, 319 (1979), which is “whether, after viewing the evidence in the light most favorable to the prosecution, any rational
trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Petitioner has never
alleged, either in the state courts or in this Court, that the evidence was constitutionally insufficient under Jackson.
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court’s application of its own law, the state-court determination that the verdict was not against the
great weight of the evidence is final.
Conclusion
In light of the foregoing, the Court will summarily dismiss Petitioner’s application
pursuant to Rule 4 because it fails to raise a meritorious federal claim.
Certificate of Appealability
Under 28 U.S.C. § 2253(c)(2), the Court must determine whether a certificate of
appealability should be granted. A certificate should issue if Petitioner has demonstrated a
“substantial showing of a denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). This Court’s
dismissal of Petitioner’s action under Rule 4 of the Rules Governing § 2254 Cases is a determination
that the habeas action, on its face, lacks sufficient merit to warrant service. It would be highly
unlikely for this Court to grant a certificate, thus indicating to the Sixth Circuit Court of Appeals that
an issue merits review, when the Court has already determined that the action is so lacking in merit
that service is not warranted. See Love v. Butler, 952 F.2d 10 (1st Cir. 1991) (it is “somewhat
anomalous” for the court to summarily dismiss under Rule 4 and grant a certificate); Hendricks v.
Vasquez, 908 F.2d 490 (9th Cir. 1990) (requiring reversal where court summarily dismissed under
Rule 4 but granted certificate); Dory v. Comm’r of Corr. of New York, 865 F.2d 44, 46 (2d Cir.
1989) (it was “intrinsically contradictory” to grant a certificate when habeas action does not warrant
service under Rule 4); Williams v. Kullman, 722 F.2d 1048, 1050 n.1 (2d Cir. 1983) (issuing
certificate would be inconsistent with a summary dismissal).
The Sixth Circuit Court of Appeals has disapproved issuance of blanket denials of
a certificate of appealability. Murphy v. Ohio, 263 F.3d 466 (6th Cir. 2001). Rather, the district
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court must “engage in a reasoned assessment of each claim” to determine whether a certificate is
warranted. Id. at 467. Each issue must be considered under the standards set forth by the Supreme
Court in Slack v. McDaniel, 529 U.S. 473 (2000). Murphy, 263 F.3d at 467. Consequently, this
Court has examined each of Petitioner’s claims under the Slack standard. Under Slack, 529 U.S. at
484, to warrant a grant of the certificate, “[t]he petitioner must demonstrate that reasonable jurists
would find the district court’s assessment of the constitutional claims debatable or wrong.” Id. “A
petitioner satisfies this standard by demonstrating that . . . jurists could conclude the issues presented
are adequate to deserve encouragement to proceed further.” Miller-El v. Cockrell, 537 U.S. 322,
327 (2003). In applying this standard, the Court may not conduct a full merits review, but must limit
its examination to a threshold inquiry into the underlying merit of Petitioner’s claims. Id.
The Court finds that reasonable jurists could not conclude that this Court’s dismissal
of Petitioner’s claims was debatable or wrong. Therefore, the Court will deny Petitioner a certificate
of appealability.
A Judgment and Order consistent with this Opinion will be entered.
Dated: May 18, 2015
/s/ Janet T. Neff
Janet T. Neff
United States District Judge
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