Cowgill v. Fox

Filing 27

ORDER ADOPTING 21 REPORT AND RECOMMENDATIONS: This Court hereby GRANTS the respondents Motion for Summary Judgment 16 . Additionally, Cowgills Objections 26 are OVERRULED. Accordingly, Cowgills § 2254 petition 1 is hereby DISMISSED WITHOU T PREJUDICE, and this matter is ORDERED STRICKEN from the active docket. This Court hereby DENIES Cowgill a certificate of appealability. Signed by Chief Judge John Preston Bailey on 8/13/12. (Attachments: # 1 Certified Mail Return Receipt)(jss)

IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF WEST VIRGINIA
ELKINS
IRVIN V. COWGILL,
Petitioner,
v.

CIVIL ACTION NO. 2:11-CV-67
(BAILEY)

WILLIAM FOX,
Warden of St. Marys Correctional Center,
Respondent.
ORDER ADOPTING REPORT AND RECOMMENDATION
I.

Introduction
On this day, the above-styled matter came before this Court for consideration of the

Report and Recommendation of United States Magistrate Judge David J. Joel [Doc. 21].
By Local Rule, this action was referred to Magistrate Judge Joel for submission of a report
and a recommendation (“R&R”). Magistrate Judge Joel filed his R&R on July 10, 2012. In
that filing, the magistrate judge recommends that this Court grant the respondent’s Motion
for Summary Judgment [Doc. 16] and deny and dismiss with prejudice petitioner Irvin V.
Cowgill’s § 2254 petition [Doc. 1].
Pursuant to 28 U.S.C. § 636(b)(1)(c), this Court is required to make a de novo
review of those portions of the magistrate judge’s findings to which objection is made.
However, the Court is not required to review, under a de novo or any other standard, the
factual or legal conclusions of the magistrate judge as to those portions of the findings or
recommendation to which no objections are addressed. Thomas v. Arn, 474 U.S. 140,

1

150 (1985). In addition, failure to file timely objections constitutes a waiver of de novo
review and the right to appeal this Court's Order. 28 U.S.C. § 636(b)(1); Snyder v.
Ridenour, 889 F.2d 1363, 1366 (4th Cir. 1989); United States v. Schronce, 727 F.2d 91,
94 (4th Cir. 1984). Here, objections to Magistrate Judge Joel’s R&R were due on or before
August 14, 2012 [Doc. 24]. Cowgill timely objected on August 10, 2012. Accordingly, this
Court will undertake a de novo review of those portions of the magistrate judge’s findings
to which objection is made. The Court will review the remainder of the R&R for clear error.
II.

Background
On August 22, 2002, a Hampshire County, West Virginia, petit jury convicted Cowgill

of second degree murder. On October 3, 2002, Cowgill was sentenced to 40 years in the
state penitentiary.
On April 24, 2003, Cowgill appealed his conviction and sentence. On November 24,
2003, the Supreme Court of Appeals of West Virginia refused the appeal.
On February 3, 2004, Cowgill, by counsel, filed his first state habeas petition in the
Circuit Court of Hampshire County (Civil Action No. 04-C-10). On April 10, 2006, the circuit
court denied Cowgill’s first petition. Cowgill appealed but was summarily denied on
January 10, 2007.
On February 8, 2007, Cowgill, proceeding pro se, filed his second state habeas
petition in the Circuit Court of Hampshire County (Civil Action No. 07-C-17). On August 3,
2010, the circuit court denied Cowgill’s second petition. Cowgill appealed but was again
denied relief on June 15, 2011.

2

On August 24, 2011, Cowgill, proceeding pro se, filed his third state habeas petition,
this time invoking the original jurisdiction of the Supreme Court of Appeals (Case No. 111220). His third petition contains three grounds, namely: (1) he discovered new evidence
that the victim was an illegal alien from Mexico; (2) the prosecution failed to disclose
evidence that the victim was an illegal alien from Mexico and had a criminal history; and
(3) his trial counsel was ineffective “for allowing [him] to be convicted for second degree
murder, when the crime was a manslaughter because the victim was attempting to commit
a arm [sic] robbery against [him] who was just trying to protect himself and family from
being killed.” ([Doc. 16-37] at 8). The Supreme Court of Appeals ordered that any
response be filed on or before September 28, 2011. On August 29, 2011, the State of
West Virginia responded that resolution of Cowgill’s claims “would require the taking of
evidence by the habeas court” and requested that the matter be remanded to the Circuit
Court of Hampshire County for the commencement of a habeas proceeding. On February
14, 2012, the Supreme Court of Appeals remanded the matter to the Circuit Court of
Hampshire County for the appointment of counsel to file a habeas petition on behalf of
Cowgill.
On February 14, 2012, the Circuit Court of Hampshire County opened Cowgill’s third
state habeas proceeding. (Civil Action No. 12-C-16). On February 23, 2012, the circuit
court appointed Cowgill counsel to file a habeas petition on his behalf. On June 15, 2012,
Cowgill’s appointed counsel moved to withdraw. On June 19, 2012, the circuit court
permitted Cowgill’s appointed counsel to withdraw and appointed him replacement counsel.
The same day, the circuit court ordered that any amended petition be filed on or before

3

August 20, 2012, with any answer due on September 20, 2012. This state habeas
proceeding is still pending.
Meanwhile, on August 31, 2011, Cowgill filed the instant Petition Under 28 U.S.C.
§ 2254 for Writ of Habeas Corpus By a Person in State Custody [Doc. 1] in this Court. The
instant petition contains the same three grounds involved in Cowgill’s most recent, and
currently pending, state habeas proceeding. On October 13, 2011, the respondent filed the
instant Motion for Summary Judgment [Doc. 16], arguing, inter alia, that Cowgill has failed
to exhaust his state court remedies.
On July 10, 2012, Magistrate Judge Joel issued the instant R&R recommending that
this Court grant the respondent’s motion and deny and dismiss with prejudice the § 2254
petition [Doc. 21]. In support of his recommendation, the magistrate judge concluded, inter
alia, that Cowgill has failed to exhaust his state court remedies.
On July 31, 2012, Cowgill moved this Court for an extension to file objections to the
R&R. On August 1, 2012, this Court granted Cowgill an extension until August 14, 2012,
to file objections. On August 10, 2012, Cowgill filed his Objections [Doc. 26] attaching the
criminal complaint as purported evidence that the victim was an illegal alien from Mexico.
Cowgill, however, fails to respond to the magistrate judge’s finding that he has failed to
exhaust his state court remedies.
III.

Analysis
Pursuant to 28 U.S.C. § 2254(b)(1)(A), “[a]n applicant for a writ of habeas corpus

on behalf of a person in custody pursuant to the judgment of a State court shall not be
granted unless it appears that . . . the applicant has exhausted the remedies available in
4

the courts of the State . . ..”
Upon a de novo review, this Court finds that Cowgill has failed to demonstrate that
he has exhausted the state court remedies available to him. Specifically, a habeas
proceeding involving the identical claims presented here is still pending in state court.
Therefore, § 2254(b)(1)(A) precludes this Court from addressing Cowgill’s instant petition.
Accordingly, Cowgill’s Objections should be OVERRULED.
IV.

Conclusion
Upon careful review, it is the opinion of this Court that the magistrate judge’s Report

and Recommendation [Doc. 21] should be, and is, hereby ORDERED ADOPTED for the
reasons more fully stated therein. As such, this Court hereby GRANTS the respondent’s
Motion for Summary Judgment [Doc. 16]. Additionally, Cowgill’s Objections [Doc. 26] are
OVERRULED. Accordingly, Cowgill’s § 2254 petition [Doc. 1] is hereby DISMISSED
WITHOUT PREJUDICE, and this matter is ORDERED STRICKEN from the active docket
of this Court.
As a final matter, this Court hereby DENIES Cowgill a certificate of appealability,
finding that reasonable jurists would not debate the conclusion that his petition should be
dismissed without prejudice because he has failed to exhaust his state court remedies. See
Slack v. McDaniel, 529 U.S. 473, 484 (2000); 28 U.S.C. § 2253(c)(2).
It is so ORDERED.
The Clerk is directed to transmit copies of this Order to any counsel of record and
to mail a copy to the pro se petitioner.

5

DATED: August 13, 2012.

6