Cowser v. Schaub

Filing 31

ORDER DISMISSING HABEAS PETITION signed by Magistrate Judge Nancy Joseph on 12/2/2016. NOW, THEREFORE, IT IS ORDERED that the petitioners petition for a writ of habeas corpus (Docket # 1 ) be and hereby is DENIED. (cc: all counsel, petitioner)(asc)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN

CASSANDRA COWSER,
Petitioner,
v.

Case No. 13-CV-1002

DEANNE SCHAUB,
Respondent.
ORDER DISMISSING HABEAS PETITION
The petitioner, Cassandra Cowser, seeks a writ of habeas corpus pursuant to 28 U.S.C. §
2254. (Docket # 1.) She alleges that her state court conviction and sentence were imposed in
violation of the Constitution; specifically, she alleges that she was deprived of effective assistance of
postconviction counsel. (Id. at 6.) The respondent argues that Cowser’s claims are procedurally
defaulted. For the reasons explained below, I agree, and the petition will be denied and dismissed.
In April 2006, Cowser was charged with first-degree intentional homicide. After offering
Cowser some crack cocaine he was smoking, the victim then expected Cowser to have sex with him
in exchange for the crack cocaine. (Ct. App. Decision in 2008AP2779-CRNM, Docket # 17-4 at 2.).
When Cowser told him that she was menstruating, he forced her to perform oral sex on him as he
threatened her with a knife. As he began to relax, he lowered the knife, at which point Cowser
grabbed the knife and the two struggled. Cowser stabbed the victim 160 times. Though he was still
breathing, he went limp; Cowser panicked and wiped off her hands and the victim’s mouth and
hands with bleach. Afterwards she went home, disposing of the knife in a sewer and her clothes
elsewhere. She then went to work. (Id.)

Cowser initially pled not guilty to the first-degree intentional homicide charge. After Cowser’s
attorneys had her seen by the psychologist at the jail, Dr. Stonefield, who diagnosed Cowser with
post-traumatic stress disorder (“PTSD”), Cowser’s attorney appeared in court and asked that
Cowser’s not guilty plea be amended to not guilty by reason of mental disease or defect (“NGI”).
They also requested that Dr. Pankiewicz be appointed to conduct the examination. (Id.) Dr.
Pankiewicz agreed that Cowser had PTSD but he did not support an NGI plea. (Id.) Cowser’s
counsel informed the trial court that she had retained her own expert, Dr. Campbell, and that
Cowser was in the process of being examined. (Id. at 3-4.) Dr. Campbell evaluated Cowser over the
course of several days and opined that, at the time of the offense, Cowser was suffering from severe
mental disease or defect and that her mental illness prevented her from being able to appreciate the
wrongfulness of her actions. (Id. at 4.)
On May 21, 2007, one of Cowser’s attorneys appeared in court (without Cowser, who waived
her appearance). (Id.) The judge mentioned an off-the-record discussion with Cowser’s attorney and
the prosecutor about Dr. Campbell’s report and granted both the defense and the prosecutor time
to ensure they had an opportunity to review the report. (Id. at 4-5.) Cowser states that she was told
that Dr. Campbell’s findings were insufficient to back up an NGI plea. (Id. at 5.) She was also told
that the jail psychologist could not be used as a witness because of a “a spot on his record.” (Id.)
Cowser states that she was never supplied with any of the written reports. (Id. at 5-6.)
Cowser ultimately entered a guilty plea to a reduced charged (second degree reckless
homicide), foregoing her previously-entered NGI plea. (Id. at 6; Br. in Opposition, Docket # 27 at
2.) She was sentenced to the maximum possible sentence of 20 years initial confinement and 10 years
extended supervision. (Docket # 17-1.)

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Cowser was appointed postconviction and appellate counsel, who filed a no-merit report
pursuant to Anders v. California, 386 U.S. 738 (1967), and Wis. Stat. Rule 809.32(1). (Ct. App. Dec.
in 2008AP2779, Docket # 17-4 at 1.) Cowser responded to the no-merit report, in which she raised
five issues: (1) the trial court’s reliance on the unchallenged court-appointed competency evaluation;
(2) her self-defense claim; (3) the trial court’s imposition of an allegedly excessive sentence; (4) two
allegedly new sentencing factors warranting sentence modification; and (5) trial counsel’s allegedly
deficient performance. (Id. at 3.) The court of appeals addressed each of Cowser’s five issues and
found they each lacked arguable merit. (Id. at 3-7.) The court also conducted an independent review
of the record, as it was required to do under Anders, and it concluded that there were no other
potentially meritorious issues. (Id.) The court of appeals affirmed the judgment of conviction. (Id.)
Cowser did not file a petition for review with the Wisconsin Supreme Court. (Case History in Appeal
2008AP2779, Docket # 17-5.)
In April 2011, Cowser filed a Wis. Stat. § 974.06 motion alleging that her trial counsel was
ineffective. (Ct. App. Dec. in 2011AP1804, Docket # 17-9 at 3.) Specifically, she alleged that her
counsel was ineffective in three respects: (1) failing to submit Dr. Stonefield’s evaluation report to
the circuit court; (2) failing to challenge Dr. Pankiewicz’s report with Dr. Campbell’s; and (3)
advising her to withdraw her NGI plea and plead guilty. The circuit court, having concluded that
Cowser’s motion raised issues already litigated in the no-merit appeal, denied the motion without
a hearing. It also found that, to the extent Cowser was raising new issues, those issues were
procedurally barred because she had not sufficiently explained why she had not raised them in her
no-merit response. Cowser then appealed. (Id.)

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On appeal, the court of appeals found that two of Cowser’s arguments—the omission of Dr.
Stonefield’s report and the failure to use Dr. Campbell’s report to challenge Dr. Pankiewicz’s—were
already litigated and would not be revisited. (Id. at 5.) As to Cowser’s final argument that her counsel
was ineffective for encouraging her to plead guilty, the court of appeals found that, to the extent the
argument had not been previously raised, Cowser failed to show sufficient reason for not previously
raising the argument.
Cowser argued that the no-merit procedures had not been properly followed during her direct
appeal and that this was the “sufficient reason” she had not previously raised the issue(s). (Id. at 5.)
The court of appeals rejected her argument, finding that there was no claim of “obvious merit” and
that, in addition, identifying an issue—even one of arguable merit—that the court of appeals did not
discuss does not constitute a “sufficient reason.” (Id. (citing Allen, 328 Wis. 2d 1, ¶ 83).) The
defendant would need to identify something that undermined the court’s confidence in the decision.
(Id. (citing Allen, 328 Wis. 2d 1, ¶ 83).) The court of appeals affirmed the circuit court, and Cowser
filed a petition for review with the Wisconsin Supreme Court, in which she raised three claims: (1)
that the circuit erred when it denied her postconviction motion on the basis that the arguments raised
were raised in the her no-merit response; (2) that trial counsel provided ineffective assistance of
counsel by advising her to plead guilty; and (3) the court of appeals erred when it held that she failed
to adequately explain why the issues were not raised in her no-merit response. (Docket # 17-10.) The
supreme court denied her petition for review. (Docket # 17-11.)

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STANDARD OF REVIEW
Cowser’s petition is governed by the Antiterrorism and Effective Death Penalty Act
(“AEDPA”). Under AEDPA, a writ of habeas corpus may be granted if the state court decision on
the merits of the petitioner’s claim (1) was “contrary to, or involved an unreasonable application
of, clearly established Federal law, as determined by the Supreme Court of the United States,” 28
U.S.C. § 2254(d) (1); or (2) “was based on an unreasonable determination of the facts in light of the
evidence presented in the State court proceeding,” 28 U.S.C. § 2254(d)(2).
However, the respondent has argued that Cowser’s petition must be denied for procedural
reasons, namely that she procedurally defaulted her claims by failing to present them through an
entire round of state court review. It is well-established that a federal court may not entertain a
petition from a prisoner being held in state custody unless the petitioner has exhausted his state
remedies. 28 U.S.C. § 2254(b)(1)(A). A claim is not considered exhausted if the petitioner “has the
right under the law of the State to raise, by any available procedure, the question presented.” 28
U.S.C. § 2254(c). With some exceptions, a petition for writ of habeas corpus should be dismissed if
state remedies have not been exhausted as to any one of the petitioner’s federal claims. See Rhines
v. Weber, 544 U.S. 269, 277-78 (2005); Cruz v. Warden of Dwight Corr. Ctr., 907 F.2d 665, 667 (7th Cir.
1990). For a constitutional claim to be fairly presented to a state court, both the operative facts and
the controlling legal principles must be submitted to that court. Verdin v. O’Leary, 972 F.2d 1467,
1474 (7th Cir. 1992). Also, the petitioner must invoke one complete round of the normal appellate
process, including seeking discretionary review before the state supreme court. McAtee v. Cowan, 250
F.3d 506, 508-09 (7th Cir. 2001).

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If state court remedies are no longer available because the prisoner failed to comply with the
deadline for seeking state court review or for taking an appeal, those remedies are technically
exhausted; however, exhaustion in this sense does not automatically entitle the habeas petitioner to
litigate his or her claims in federal court. Woodford v. Ngo, 548 U.S. 81, 93 (2006). A habeas petitioner
who has exhausted his state court remedies without properly asserting his federal claim at each level
of state court review has procedurally defaulted that claim. Lewis v. Sternes, 390 F.3d 1019, 1026 (7th
Cir. 2004).
A claim can also be procedurally defaulted when a state court does not reach a federal issue
because of a state procedural bar. Jenkins v. Nelson, 157 F.3d 485, 491 (7th Cir. 1998). In order to
conclude that a petitioner has procedurally defaulted a claim due to an adequate and independent
state ground, this Court “must be convinced that the last state court to consider the question actually
relied” on a procedural ground “as the basis for its decision.” Braun v. Powell, 227 F.3d 908, 912 (7th
Cir. 2000) (internal citations omitted). The state court’s reliance on a procedural rule therefore must
be explicit. See id. In other words, a state law ground is independent when the court actually relied
on the procedural bar as an independent basis for its disposition of the case. Kaczmarek v. Rednour,
627 F.3d 586, 592 (7th Cir. 2010).
Furthermore, to be an adequate ground of decision, the state’s procedural rule must be“firmly
established and regularly followed,” applied in a “consistent and principled way,” and the petitioner
must be deemed to have been fairly apprised of its existence at the time he acted. Braun, 227 F.3d
at 912 (internal quotations and citations omitted). A procedural default will bar federal habeas relief
unless the petitioner can demonstrate both cause for and prejudice stemming from that default or he

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can establish that the denial of relief will result in a miscarriage of justice. Lewis, 390 F.3d at 1026
(citing Wainwright v. Sykes, 433 U.S. 72, 86–87 (1977)).
DISCUSSION
Cowser’s petition focuses on her guilty plea. She alleges that her trial counsel was ineffective
for urging her to withdraw her NGI plea and plead guilty to a lesser offense and that, in turn, her
postconviction/appellate counsel was ineffective for failing to argue (and preserve) that her trial
counsel was ineffective. The respondent argues that Cowser’s first argument is defaulted under the
independent and adequate state law doctrine and the her remaining claim is defaulted by failing to
present it to the Wisconsin Supreme Court.
1.

Ineffective Assistance of Trial Counsel

In denying Cowser’s claim that her trial counsel was ineffective for urging her to plead guilty,
the court of appeals found, as noted above, that she had failed to provide a sufficient reason for
failing to raise the issue in her prior no-merit response. Wisconsin law, specifically section 974.06
and State v. Escalona-Naranjo, 185 Wis. 2d 168, 517 N.W.2d 157 (1994), requires that a defendant
“raise all grounds for relief in his or her original, supplemental or amended motion for
postconviction relief,” State v. Fortier, 2006 WI App 11, ¶ 16, 289 Wis. 2d 179, 709 N.W.2d 893
(2005) (citing Wis. Stat. § 974.06 and Escalona-Naranjo, 185 Wis. 2d 168, 517 N.W.2d 157), which
also includes a direct appeal, State v. Leo, 2003 WI 107, ¶ 32, 264 Wis. 2d 1, 665 N.W.2d 756. In
finding that Cowser should have raised her ineffective assistance of trial counsel in her no-merit
response, the court of appeals relied on State v. Tillman, 2005 WI App 71, 28 Wis. 2d 157, 696
N.W.2d 574, which cites to Escalona-Naranjo and Wis. Stat. § 974.06 and holds that failure to raise
an argument in a no-merit response may serve as a procedural bar in a subsequent postconviction

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motion. The court then went on to find that Cowser had not shown there was a “sufficient reason”
for her failure to raise the issue in her no-merit response. Fortier, 2006 WI App 11, ¶ 16.
Thus, the court of appeals found that a procedural bar prevented Cowser from raising her
ineffective assistance of trial claim in her § 974.06 motion. However, the Seventh Circuit has found
that failure to raise an ineffective assistance of trial counsel argument in a no-merit response does not
constitute an adequate and independent state ground. Johnson v. Thurmer, 624 F.3d 786, 789-91 (7th
Cir 2010). As noted above, in order for a state procedural ground to serve as an adequate and
independent state ground, it must be expressly relied upon, clearly established, and consistently
relied upon. Id. at 789 (internal citations omitted). The Seventh Circuit examined both the no-merit
procedure and the procedure by which a defendant must challenge the performance of her trial
counsel and concluded that it was inconsistent. Id. at 790. It explained:
On one hand, Wisconsin courts held that ineffective assistance of counsel claims were
defaulted if they related to trial conduct and were not brought in response to the nomerit report. On the other, the state courts required ineffective assistance claims that
dealt with trial errors to be raised in a separate post-conviction motion in the trial
court prior to the no-merit appeal or they were waived. In essence, Wisconsin rulings
of default were not based on an adequate state ground barring federal habeas review
because Wisconsin procedure required the petitioner to travel an inconsistent and
confusing path by asserting “a claim before the court of appeals that, under established
Wisconsin case law, he could not bring initially in that forum because it had not been
brought to the attention of the trial court.”
Id. (quoting Page v. Frank, 343 F.3d 901, 909 (7th Cir. 2003)).
While the Seventh Circuit recognized that a then-recent Wisconsin Supreme Court case
recognized this inconsistency, it did not examine whether it resolved the confusion about the
procedure for challenging the performance of trial counsel because they had to “assess the
consistency of Wisconsin’s procedures at the time of [the petitioner’s] appeal.” Id. at 791 n. 2. The
same is true here: the supreme court case was decided in 2010, see State v. Allen, 2010 WI 89, 328
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Wis. 2d 1, 786 N.W.2d 124, well after Cowser’s appeal. Therefore, the same inconsistencies
recognized in Johnson (and Page) were present at the time Cowser submitted her no-merit response
and the court of appeals’ finding that her failure to raise the claim in her no-merit brief served as a
procedural bar for raising it in a later § 974.06 motion does not constitute an adequate and
independent state ground.
Because Cowser’s claim is not defaulted, I must now determine what standard of review
applies to her ineffective assistance of trial counsel claim. If the state court decided her claim on the
merits, AEDPA’s standard applies, but if not, a de novo standard applies. Johnson, 624 F.3d at 791
(citing George v. Smith, 586 F.3d 479, 484 (7th Cir. 2009); McGee v. Bartow, 593 F.3d 556, 572 n. 10
(7th Cir. 2010)). Though the court of appeals found that Cowser’s ineffective assistance of trial
counsel claim was procedurally barred, it nonetheless discussed the merits of Cowser’s ineffective
assistance of trial counsel claim.
Nothing in Cowser’s motion suggests that there was ‘obvious merit’ to a claim
that trial counsel was ineffective for persuading her to plead guilty to a reduced
charge. Cowser contends that if she had known of Stonefield’s and Campbell’s
reports, she would not have entered a guilty plea. However, Cowser had to have
known something about Stonefield’s report, as that was the impetus for the NGI plea.
Cowser also admits that trial counsel had explained why Stonefield would not be a
good witness.
Further, Campbell’s report does not unequivocally support an NGI plea as
Cowser appears to believe. Rather, Campbell concluded, in relevant part:
Ms. Cowser ordinarily would recognize the criminality and/or
wrongfulness of stabbing someone. On the day of the instant offense,
she was operating from a framework of defending herself against a
sexual attack. Her frantic attempts at self-preservation, combined with
her chronic, severe PTSD and recent binge in using large quanities of crack
cocaine all colluded together. This resulted in her inability to recognize the
wrongfulness of her action[.]

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(Empahsis added.) Campbell’s report thus suggests that Cowser’s drug use played a
role in the homicide, but there is nothing to suggest that Cowser’s voluntary
intoxication would constitute a defense in this case. See Wis. Stat. § 939.42.
Accordingly, there is nothing obviously meritorious or even arguably meritorious
about a claim that defense counsel was ineffective for encouraging a guilty plea to a
reduced charge instead of proceeding to trial on a first-degree intentional homicide
charge with questionable support for an NGI defense.
(Docket # 17-9 6.)
When alleging that her counsel was deficient, a defendant must show both “that counsel’s
performance was deficient” and “that the deficient performance prejudiced the defense.” Strickland
v. Washington, 466 U.S. 668, 687 (1984). While the court of appeals did not explicitly use the terms
in Strickland, it was nonetheless performing a Strickland analysis—finding, in essence, Cowser’s
counsel was neither deficient nor was she prejudiced by their urging to enter a plea to a reduced
charge. Thus, the question before me now is not whether this court “believes the state court’s
determination under the Strickland standard was incorrect but whether the determination was
unreasonable—a substantially higher standard.” Knowles v. Mirzayance, 556 U.S. 111, 123 (2009)
(internal citations and quotation marks omitted). Indeed, when a habeas petitioner raises ineffective
assistance of counsel as a basis for relief from his state conviction and sentence, federal habeas courts
must “use a ‘doubly deferential’ standard of review that gives both the state court and the defense
attorney the benefit of the doubt.’” Burt v. Titlow, 134 S.Ct. 10, 13 (2013) (internal citation and
quotation marks omitted); see also Harrington v. Richter, 131 S.Ct. 770, 788 (2011).
Here, the court of appeals’ determination that Cowser’s counsel’s performance was not
deficient and its determination that she was not prejudiced by any deficiency even if there was one
was a reasonable application of Strickland. While Cowser contends that she would not have pled
guilty had she known what Dr. Campbell’s and Dr. Stonefield’s reports said, the court of appeals’

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finding that (1) Cowser had to have known about Stonefield’s report since it triggered the entry of
her NGI plea and (2) Dr. Campbell’s report did not provide the support for an NGI plea she believed
it did were both a reasonable determination of the facts as well as a reasonable application of
Strickland. While Cowser may have not entered a guilty plea to a reduced charge had she been
provided Dr. Campbell’s report, as she says, she has not shown that the court of appeals was
unreasonable in determining that Dr. Campbell’s report would not have unequivocally supported
an NGI plea. Therefore, her claim of ineffective assistance of trial counsel must fail.
2.

Ineffective Assistance of Appellate/Postconviction Counsel

I turn now to her remaining claim: that her appellate/postconviction counsel was deficient
for failing to argue that her trial counsel was ineffective. First, I note that having found the court of
appeals was not unreasonable in finding that Cowser could not show that her trial counsel was
ineffective, it would be inconsistent to find that her appellate/postconviction counsel was ineffective
for failing to raise the issue. Regardless, Cowser has not exhausted this issue and it is therefore
procedurally defaulted. In the appeal following the denial of her § 974.06 motion, Cowser argued
that her appellate/postconviction counsel’s failure to file a motion alleging ineffective assistance of
trial constituted “sufficient reason” to overcome the procedural bar. Even if this is sufficient to
constitute “raising” the issue with the court of appeals, she did not raise it in her petition for review
in the Wisconsin Supreme Court. Because she did not present the claim through one full round of
state court review, she has procedurally defaulted this claim.
To overcome procedural default, the petitioner must either demonstrate both cause for and
prejudice stemming from his procedural default or be able to establish that the denial of relief will
result in a miscarriage of justice. Lewis, 390 F.3d at 1026 (citing Wainwright, 433 U.S. at 86-87). To

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prove cause, the petitioner must show “that some type of external impediment prevented [him] from
presenting his federal claim to the state courts.” Id. (citing Murray v. Carrier, 477 U.S. 478, 495-96
(1986)). In order to establish prejudice, the petitioner must show that “the violation of [his] federal
rights ‘worked to his actual and substantial disadvantage, infecting his entire trial with error of
constitutional dimensions.’” Id. (citing United States v. Frady, 456 U.S. 152, 170 (1982) (emphasis in
original)). The miscarriage of justice exception requires that the petitioner “show that he is actually
innocent of the offense for which he was convicted, i.e., that no reasonable juror would have found
him guilty of the crime but for the error(s) that he attributed to the state court.” Id. (citing Schlup v.
Delo, 513 U.S. 298, 327–29 (1995)).
Cowser does not argue that she is innocent of the offense, so the question is whether she can
show cause for and prejudice from this default. Cowser has not argued that any external impediment
prevented her from raising a claim that her appellate/postconviction counsel was ineffective in her
petition for review (assuming that she did, in fact, raise it in the appeal from her § 974.06 motion).
Therefore, she cannot show cause for her default, and I need not determine whether she can
demonstrate prejudice from the default. Her second claim—that appellate/postconviction counsel
was ineffective for failing to file a motion/raise the argument that trial counsel was ineffective—is
therefore defaulted and must also fail.
3.

Conclusion

Cowser’s claim that her trial counsel was ineffective, though not procedurally defaulted,
cannot succeed on the merits. Her claim that her appellate/postconviction counsel was ineffective
is procedurally defaulted. Her petition, therefore, is denied.

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CERTIFICATE OF APPEALABILITY
According to Rule 11(a) of the Rules Governing § 2254 Cases, the court must issue or deny
a certificate of appealability “when it enters a final order adverse to the applicant.” 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 make a substantial showing of the denial of a
constitutional right, the petitioner must demonstrate 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) (quoting Barefoot v. Estelle, 463 U.S. 880, 893, and n.4).
As for issues resolved on procedural grounds, a certificate of appealability “should issue when
the prisoner shows, at least, that jurists of reason would find it debatable whether the petition states
a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable
whether the district court was correct in its procedural ruling.” Id. Section 2253 mandates that both
showings be made before a certificate of appealability is granted. Id. at 485. Each component of the
§ 2253(c) showing is part of a threshold inquiry; thus, the court need only address one component
if that particular showing will resolve the issue. Id.
Jurists of reason would not find it debatable that the court of appeals was not unreasonable
in its finding that Cowser’s trial counsel was not ineffective. Nor would jurists of reason find it
debatable that Cowser procedurally defaulted her ineffective assistance of appellate/postconviction
counsel and that she cannot overcome that default. Thus, I will deny Cowser a certificate of
appealability. Of course, Cowser retains the right to seek a certificate of appealability from the Court
of Appeals pursuant to Rule 22(b) of the Federal Rules of Appellate Procedure.

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ORDER
NOW, THEREFORE, IT IS ORDERED that the petitioner’s petition for a writ of habeas
corpus (Docket # 1) be and hereby is DENIED.
IT IS FURTHER ORDERED that this action be and hereby is DISMISSED.
IT IS FURTHER ORDERED that a certificate of appealability is DENIED.
FINALLY, IT IS ORDERED that the Clerk of Court enter judgment accordingly.

Dated at Milwaukee, Wisconsin this 2nd day of December, 2016.
BY THE COURT
s/Nancy Joseph
NANCY JOSEPH
United States Magistrate Judge

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