Cowherd v. Dooley

Filing 25

ORDER directing respondents to file pleading by May 16, 2019, regarding whether they assert the defense of procedural default; if they do, Mr. Cowherd may file a responsive pleading by May 30, 2019. Signed by US Magistrate Judge Veronica L. Duffy on 5/2/2019. (CG) Modified on 5/2/2019 cc: Randy Cowherd via USPS (KLE).

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
WESTERN DIVISION
RANDY COWHERD,

5:18-CV-05039-JLV

Petitioner,
vs.

ORDER

BOB DOOLEY, WARDEN, SDSP; AND
ATTORNEY GENERAL FOR THE STATE
OF SOUTH DAKOTA,
Respondents.
INTRODUCTION1
This matter is before the court on Randy Cowherd’s petition for a writ of
habeas corpus pursuant to 28 U.S.C. § 2254. Mr. Cowherd is currently
incarcerated at the South Dakota State Penitentiary in Sioux Falls, South
Dakota. This matter was referred to this magistrate judge pursuant to
28 U.S.C. § 636(b)(1)(B) and the October 16, 2014, standing order of the
Honorable Jeffrey L. Viken, Chief United States District Judge.

The court takes judicial notice of the documents which have been filed in
Mr. Cowherd’s underlying criminal case in state court (State v. Cowherd, File
No. 51 CR 15-004050, Seventh Judicial Circuit, Pennington County, South
Dakota) and his state habeas action (Cowherd v. Dooley, File No. 51 CV 17001680, Seventh Judicial Circuit, Pennington County, South Dakota). The
court has been provided with the electronic version of those files. The
respondents have additionally filed paper copies of many of the relevant statecourt documents as attachments to their brief (Docket 7) in this pending
action. Unless otherwise noted, references to docket numbers in this opinion
will be to the CM/ECF docket numbers assigned to documents filed in this
federal habeas corpus matter.
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FACTS
Mr. Cowherd was convicted of driving while intoxicated in Pennington
County, South Dakota, on February 24, 2016. See State v. Randy L. Cowherd,
File No. 51 CR 15-004050, (Seventh Judicial Circuit, Pennington County,
South Dakota); Docket 7-1, p. 12. Mr. Cowherd subsequently admitted to five
prior DWI convictions as alleged in the Part II habitual offender information
which had been filed by the state. Docket 7-2. On April 5, 2016, the trial
court, the Honorable Robert Guisinsky presiding, sentenced Mr. Cowherd to
ten years’ imprisonment in the South Dakota State Penitentiary, with four
years suspended. Docket Nos. 7-3; 7-10.
Mr. Cowherd filed a direct appeal. Docket 7-4. Mr. Cowherd’s trial
counsel did not believe there were any arguably meritorious issues for appeal,
but did assist Mr. Cowherd in submitting a Korth2 brief to the South Dakota
Supreme Court. Docket 7-4. On direct appeal, Mr. Cowherd raised the
following issues:
1. Mr. Cowherd asked trial counsel to obtain the security video from the bar
where he (Cowherd) had been drinking the night of his DWI arrest to
show proof of his alcohol intake, but counsel did not procure the video.
Counsel also did not procure an independent blood alcohol expert.
2. After Mr. Cowherd’s first attorney quit and he was appointed a public
defender, his request for an alternate representation was denied;

State v. Korth, 650 N.W.2d 528 (S.D. 2002). In South Dakota, a Korth brief
provides “an alternative briefing procedure for criminal appeals where court
appointed counsel identifies no ‘arguably meritorious’ issues for appeal. The
procedure requires bifurcated briefing in which counsel indicates in Section A
of the brief that he has not identified any arguably meritorious issues for
appeal and submits, in Section B of the brief, any claim of error requested by
the client.” People ex rel. South Dakota Dept. of Social Services, 678 N.W.2d
594, 597 (S.D. 2004).
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3. Mr. Cowherd’s public defender failed to obtain an independent blood
alcohol expert;
4. Mr. Cowherd’s public defender failed to adequately cross-examine the
state’s blood alcohol expert at trial and failed to adequately question
Mr. Cowherd and/or object to the state’s cross-examination of
Mr. Cowherd;
5. Mr. Cowherd’s trial counsel refused to file a direct appeal, forcing
Mr. Cowherd to file a pro se direct appeal.
Id.
On March 27, 2017, the South Dakota Supreme Court summarily
affirmed Mr. Cowherd’s conviction. Docket 7-5.
On September 26, 2017, Mr. Cowherd filed his first pro se petition for
habeas corpus in state court.3 Docket 7-6. Since then, on February 8, and
February 26, 2018, Mr. Cowherd filed amended pro se petitions for habeas
corpus in state court. Dockets 7-8 and 7-9. The issues Mr. Cowherd raised in
his second amended state habeas petition are:
1. Mr. Cowherd was denied effective assistance of counsel at trial
because trial counsel did not object to the state’s expert’s speculative
testimony regarding Mr. Cowherd’s blood alcohol content;
2. Mr. Cowherd was denied effective assistance of counsel at trial
because trial counsel did not object to the state’s exhibit A, which
contained the same speculative information about Mr. Cowherd’s
blood alcohol content.
Docket 7-9.
On August 28, 2018, the circuit court issued a memorandum decision
dismissing Mr. Cowherd’s claims and denying a certificate of probable cause.

Mr. Cowherd’s petition and accompanying documents were dated September
26, 2017. They were not filed by the clerk until November 8, 2017. This court
will consider them to have been filed as of the date indicated on Mr. Cowherd’s
petition.
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The South Dakota Supreme Court also denied Mr. Cowherd’s request for
a certificate of probable cause on November 27, 2018, because Mr. Cowherd
had failed to properly serve his motion upon the Attorney General as required
by SDCL § 21-27-18.1. See Docket No. 19-2. Mr. Cowherd concedes before
this court that his motion for a certificate of probable cause before the
Supreme Court was denied for failure to serve the proper parties. See Docket
No. 22 at p. 1.
In state court, Mr. Cowherd then made a motion to the South Dakota
Supreme Court for relief from judgment on the grounds of mistake, in essence
asking that court to reconsider its denial of his motion for a certificate of
probable cause. See Docket No. 22 at p. 1. The South Dakota Supreme Court
denied this motion on January 19, 2019. See Docket No. 19-3.
On June 14, 2018, Mr. Cowherd filed his federal petition for habeas
corpus pursuant to 28 U.S.C. § 2254. The issues Mr. Cowherd raises in this
federal petition are:
1. Ineffective assistance of counsel (several sub-parts);
2. Denial of alternate court-appointed counsel;
3. Partiality of the trial judge; and
4. Malicious prosecution.
Initially, respondents moved to dismiss Mr. Cowherd’s § 2254 petition
because it was partially unexhausted when he filed it. See Docket No. 6. Since
then, Mr. Cowherd presented his claims in state court. The respondents now
move to dismiss Mr. Cowherd’s § 2254 petition for failure to state a claim
pursuant to FED. R. CIV. P. 12(b)(6). See Docket No. 18. Mr. Cowherd resists
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the motion. Before addressing the grounds urged by respondents, however, the
court must clarify whether respondents are waiving the defense of procedural
default, a doctrine they do not mention in their motion.
DISCUSSION
This court previously addressed the doctrine of exhaustion of federal
habeas claims in state court. See Docket Nos. 5 & 9. A closely related concept
to the exhaustion doctrine is the doctrine of “procedural default.” Both
doctrines are animated by the same principles of comity—that is, in our dual
system of government, federal courts should defer action on habeas matters
before them when to act on those petitions would undermine the state courts’
authority, which have equal obligations to uphold the constitution. See
Coleman v. Thompson, 501 U.S. 722, 731 (1991) (quoting Rose v. Lundy, 455
U.S. 509, 518 (1982), overruled in part on other grounds by Martinez v. Ryan,
566 U.S. 1 (2012).4 While the exhaustion rule asks whether a petitioner has
exhausted his remedies in state court, the procedural default rule asks how he
has exhausted: did the petitioner properly exhaust those remedies under state
law? O’Sullivan v. Boerckel, 526 U.S. 838, 848 (1999).
Procedural default is sometimes called the “adequate and independent
state grounds” doctrine. “Procedural default” occurs when a habeas petitioner
fails to follow a state procedural rule in presenting his federal constitutional

The Martinez decision modified that part of the Coleman decision involving
whether ineffective assistance of habeas counsel can constitute “cause”
excusing a procedural default. See Martinez, 556 U.S. at 8 (holding that,
where state law required that ineffective assistance of counsel claims may not
be raised until habeas proceedings, ineffectiveness of habeas counsel may
supply “cause” sufficient to excuse a procedural default).
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claim in the state courts. Trevino v. Thaler, 569 U.S. 413, 421 (2013). The
doctrine of “procedural default” is intended to “prevent federal courts from
interfering with a State’s application of its own firmly established, consistently
followed, constitutionally proper procedural rules.” Id. If a habeas petitioner
“procedurally defaults” a claim in state court by failing to follow a state
procedural rule, and if the last state court “rendering a judgment in
[petitioner’s] case ‘clearly and expressly’ states that its judgment rests on a
state procedural bar,” then federal courts may not consider a federal claim on
the merits. Harris v. Reed, 489 U.S. 255, 263 (1989). This is true even if the
state court also addresses the claim on the merits in the alternative. Id. at 264
n.10.
If federal courts allowed procedurally defaulted claims to be heard on
their merits in federal court, they would be allowing habeas petitioners to
perform an “end run” around state procedural rules. Coleman, 501 U.S. at
731-32, 735 n.1. However, where no further non-futile remedy exists in state
court, it is not feasible to require the petitioner to return to state court as
would be the case in a dismissal for failure to exhaust state remedies. Here, it
would be pointless to remand Mr. Cowherd back to state court as there are no
more state remedies available to him. See Docket No. 19-3.
A state procedural default bars federal habeas review unless the
petitioner can demonstrate (1) “cause” for the default and (2) actual prejudice
as a result of the violation of federal law. Maynard v. Lockhart, 981 F.2d 981,
984 (8th Cir. 1992) (citations omitted, emphasis added). If no “cause” is
found, the court need not consider whether actual prejudice occurred. Id. at
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985; Wyldes v. Hundley, 69 F.3d 247, 253 (8th Cir. 1995) (citations omitted).
“The requirement of cause . . . is based on the principle that petitioner must
conduct a reasonable and diligent investigation aimed at including all relevant
claims and grounds for relief . . .” Cornman v. Armontrout, 959 F.2d 727, 729
(8th Cir. 1992). The habeas petitioner must show that “some objective factor
external to [petitioner] impeded [his] efforts.” Id. (quoting Murray v. Carrier, 477
U.S. 478, 488 (1986)) (emphasis added).
A petitioner may show cause by demonstrating that the factual or legal
basis for a claim was not reasonably available to the petitioner at the time or
that there was interference by officials which prevented the petitioner from
exhausting his state remedies. Murray, 477 U.S. at 488. A petitioner’s lay
status, pro se status, and lack of education are not sufficient cause to excuse a
procedural lapse in failing to pursue state court remedies. See Stewart v. Nix,
31 F.3d 741, 743 (8th Cir. 1994); Smittie v. Lockhart, 843 F.2d 295, 298 (8th
Cir. 1988). Illiteracy or low intelligence are also not enough to demonstrate
cause. See Criswell v. United States, 108 F.3d 1381, *1 (8th Cir. 1997)
(unpub’d.); Cornman, 959 F.2d at 729. Finally, neither is ignorance of the law.
Maxie v. Webster, 978 F.2d 1264, *1 (8th Cir. 1992) (unpub’d.).
Here, Mr. Cowherd has procedurally defaulted his claim in state court
because he failed to serve the attorney general when moving the South Dakota
Supreme Court for a certificate of probable cause. See Docket No. 19-2. The
South Dakota Supreme Court explicitly relied upon this procedural default in
denying Mr. Cowherd’s motion for a certificate of probable cause. Id.

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Furthermore, the requirement of serving the Attorney General with a
motion for a certificate of probable cause is clearly and explicitly required by
established South Dakota law. Section 21-27-18.1 of the South Dakota
Codified Laws states: “Service of . . . a motion for a certificate of probable cause
. . . must be made upon . . . the attorney general. . . by the party seeking the
habeas corpus relief.” See SDCL § 21-27-18.1 (emphasis added).
In this court’s experience, the South Dakota Supreme Court regularly
enforces the requirement of service on the attorney general. See e.g. Burritt v.
Young, Civ. 14-5078, Docket No. 10 at p. 14. In an analogous case, a habeas
petitioner who had filed a motion for a certificate of probable cause one day late
asked the South Dakota Supreme Court to find that he had “substantially
complied” with SDCL § 21-27-18.1. Hannon v. Weber, 638 N.W.2d 48, 49-50
(S.D. 2001). The court refused, noting that it regularly dismisses motions for
certificates of probable cause to that court based on the plain language of the
statute, even if they are one day late. Id. The court stated “it is not our task to
revise or amend, via judicial opinions, statutes or court rules, or to ‘liberally
construe a statute or court rule to avoid a seemingly harsh result where such
action would do violence to the plain meaning of the statute under
construction.’ ” Id. at 50 (cleaned up).
Here, as in Hannon, the statutory language is clear: Mr. Cowherd was
required to serve the attorney general with his motion for a certificate of
probable cause. He failed to do so and the South Dakota Supreme Court
denied his motion on that procedural basis. The conclusion seems inescapable

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that Mr. Cowherd’s claims in his federal habeas petition are procedurally
defaulted.
The doctrine of procedural default is not jurisdictional, but before a
federal habeas court may determine the state has waived procedural default as
a defense, the state’s counsel must “expressly waive[] the requirement.” See 28
U.S.C. § 2254(b)(3). Here, the state’s counsel addressed exhaustion of state
remedies in his pleadings, but counsel did not address procedural default.
Because state counsel simply does not address procedural default, the court is
not at liberty to assume or infer that the state is waiving this defense—counsel
must explicitly waive the defense. Id. Accordingly, the court will require
counsel for respondents to file a written pleading with the court indicating
whether the state is waiving the defense of procedural default.
CONCLUSION
Based on the foregoing facts, law, and analysis, it is hereby
ORDERED that counsel for respondents shall file with the court no later
than close of business May 16, 2019, a pleading indicating whether
respondents are waiving the defense of procedural default. If respondents are
not waiving that defense, counsel is directed to address in his pleading the
application of the doctrine to Mr. Cowherd’s case including whether service on
the attorney general of a motion for a certificate of probable cause pursuant to
SDCL § 21-27-18.1 is a firmly established, consistently followed, and
constitutionally proper procedural rule of the state. It is further
ORDERED that if respondents assert the defense of procedural default,
Mr. Cowherd may file a responsive pleading no later than May 30, 2019. In his
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response, Mr. Cowherd should address (1) whether the doctrine should be
applied to him and (2) whether his procedural default is excused by cause and
actual prejudice.
DATED May 2, 2019.
BY THE COURT:

VERONICA L. DUFFY
United States Magistrate Judge

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