United States District Court, E.D. California
FINDINGS AND RECOMMENDATION RECOMMENDING DENIAL OF
PETITION FOR WRIT OF HABEAS CORPUS
is a state prisoner proceeding pro se with a petition for
writ of habeas corpus pursuant to 28 U.S.C. § 2254.
April 23, 2013, Petitioner was convicted after a jury trial
in the Fresno County Superior Court of first-degree murder
(count 1), attempted first-degree murder (count 3), and two
counts of second-degree robbery (counts 2 and 4). (2
410-13). The trial court sentenced Petitioner to an
indeterminate term of life without the possibility of parole
(count 1) and a consecutive indeterminate term of life with
the possibility of parole (count 3). Additionally, the trial
court imposed two consecutive terms of twenty-five years to
life on the enhancements as to counts 1 and 3. The sentences
for counts 2 and 4 were stayed. (2 CT 423, 425). On July 13,
2015, the California Court of Appeal, Fifth Appellate
District affirmed the judgment. People v. Cowan, No.
F067354, 2015 WL 4199118, at *8 (Cal.Ct.App. July 13, 2015).
The California Supreme Court denied Petitioner's petition
for review on October 14, 2015. (LDs 22, 23).
December 5, 2016, Petitioner filed the instant federal
petition for writ of habeas corpus. (ECF No. 1). In the
petition, Petitioner raises the following claims for relief:
(1) a deficient Miranda admonition, (2) ineffective
assistance of counsel, and (3) cumulative trial errors.
Respondent has filed an answer, and Petitioner has filed a
traverse. (ECF Nos. 9, 12).
STATEMENT OF FACTS
The underlying incident occurred on August 1, 2007 in
southwest Fresno near the intersection of Clara and Vine
Avenues. Efigenia Meza had walked to a nearby school with her
stepchildren that morning to register them for classes. A
relative named Geremias Leon accompanied her on this errand.
While crossing through a field on their way back home, the
group was approached by a man carrying a rifle. The stranger
began talking to them and gesturing towards Ms. Meza's
and Ms. Leon's purses. Neither woman spoke English, but
the children understood that he was saying, “Give me
the bags.” As the kids ran off to find help, the gunman
shot and killed Ms. Meza. He also fired multiple rounds at
Ms. Leon, who sustained a non-lethal bullet wound while
attempting to reach safety. Both victims dropped their purses
during the gunfire, and the killer took those items with him
when he left the field.
Several law enforcement officers responded to reports of the
shooting and secured the perimeter around Ms. Meza's
body. The ensuing investigation led police to a nearby home
where the suspect was believed to have fled. Following a
stand-off that culminated in a SWAT team firing tear gas into
the residence, Tyrone Cowan exited and surrendered to police.
Cowan made several incriminating statements at the time of
his arrest. He later participated in a recorded interview
with homicide detectives, whereupon he further implicated
himself in the shootings. We provide a more detailed summary
of Cowan's statements in the Discussion, post.
. . .
There were extensive delays in the criminal proceedings due
to questions concerning the defendant's mental
competency. Cowan was transferred back and forth between the
Fresno County Jail and Atascadero State Hospital (Atascadero)
at least three times over a period of approximately four
years. The staff members at Atascadero had suspected, and
ultimately concluded, that he was feigning symptoms of mental
illness in order to avoid prosecution. A final competency
determination was made in August 2012, and the case was then
tried to a jury in April 2013. An earlier plea of not guilty
by reason of insanity was withdrawn by the defense prior to
the commencement of trial.
The prosecution's case-in-chief included testimony from
Ms. Leon and from Ms. Meza's stepchildren, which
established the facts surrounding the offenses. The jury was
made aware that Ms. Leon and Ms. Meza's stepson had
previously identified Cowan as the perpetrator during live
show-up and photographic line-up procedures. Jurors also
heard evidence regarding the defendant's incriminating
statements to police.
Testimony by law enforcement officers and crime scene
technicians revealed that one .22-caliber bullet and five
spent .22-caliber shell casings were recovered from the crime
scene. A search of Cowan's home uncovered bloody
clothing, as well as another live round and spent shell
casing which were of the same caliber as those found next to
the homicide victim. The presumed murder weapon, an illegally
modified .22-caliber Ruger rifle, was located at the bottom
of a ponding basin near the field where the shooting took
place. Forensic analysis indicated that all of the recovered
shell casings had been fired from the .22-caliber rifle.
Pathologist Michael Chambliss, M.D., testified regarding the
autopsy he performed on the deceased victim. His testimony
explained that Ms. Meza was shot three times; once in the
upper body and twice in the head. Dr. Chambliss believed that
the injury to the back of the victim's head came last in
the sequence of shots, preceded by bullet strikes to the left
chest and right side of the face. The characteristics of Ms.
Meza's final head wound indicated that the barrel of the
gun was placed directly against her skull when it was fired.
The defense case was comprised of testimony from one expert
witness. Dr. Avak Howsepian, a psychiatrist, evaluated Cowan
on two occasions in October 2007 (approximately four months
after his arrest). Based on those face-to-face meetings and a
review of the defendant's medical records, Dr. Howsepian
concluded that Cowan suffered from “bipolar disorder
not otherwise specified; psychotic disorder not otherwise
specified; mild mental retardation; and anxiety disorder not
otherwise specified.” He also noted that Cowan had a
history of aggressive and “disinhibitive”
personality changes which were attributed to a head injury he
sustained as a child. Dr. Howsepian believed that Cowan's
conditions sometimes caused his thought processes to become
“highly distorted and highly disorganized, ”
which could impair his ability to premeditate and deliberate,
i.e., “to think things through clearly [and] consider
consequences of what [he] might be doing.”
In rebuttal, the prosecution called two court-appointed
psychologists: Harold Seymour, Ph.D., and Richard Kendall,
Ph.D. Dr. Seymour interviewed Cowan in 2010 and again in
2013, and diagnosed him with “a mood disorder not
otherwise specified and with a borderline intellectual
function.” The expert did not find Cowan to be
psychotic. He did, however, note that Cowan “was
self-identifying with a lot of dramatic and atypical
psychotic symptoms, ” which “is very unusual for
somebody who's actually very mentally ill.” This
prompted Dr. Seymour to administer a standardized test
designed to determine if someone is faking psychosis.
Cowan's score on the examination was highly indicative of
Through the use of hypothetical questions, the prosecution
elicited opinions from Dr. Seymour relevant to the
defendant's mental state at the time of the shooting. The
expert agreed that using a gun to facilitate a robbery and
then shooting the victim when he or she failed to relinquish
the demanded property would be classified as
“goal-directed behavior.” Subsequent flight from
the crime scene, disposing of the stolen goods and murder
weapon, changing out of bloody clothes, and hiding from
police would all likewise indicate planning and a
goal-oriented thought process.
Dr. Kendall interviewed Cowan in February 2013, approximately
six weeks before trial. Cowan reportedly told the expert,
“All I remember is a whole lot of blood and demons,
that's what I saw ... I found the gun and then I played
with it ... I fired it and then I blacked out and I shot the
gun again. I saw demons. I saw this lady laying on the
ground. Then I left.... I did pick up the purses, but I put
them on the street and I think someone else took
Cowan also disclosed details about what he had done after the
shooting: “I ran back to my house, I took off my shirt
and clothes because they had blood on them, then I went to my
friend's house.” It was Dr. Kendall's opinion that
Cowan had been feigning symptoms of mental illness during
their interview. As for the defendant's behavior on the
day of the shooting, the expert believed his actions
demonstrated an intentional and “goal-directed”
course of conduct.
Cowan, 2015 WL 4199118, at *1-3 (footnote in
STANDARD OF REVIEW
by way of a petition for writ of habeas corpus extends to a
person in custody pursuant to the judgment of a state court
if the custody is in violation of the Constitution or laws or
treaties of the United States. 28 U.S.C. § 2254(a); 28
U.S.C. § 2241(c)(3); Williams v. Taylor, 529
U.S. 362, 375 (2000). Petitioner asserts that he suffered
violations of his rights as guaranteed by the U.S.
Constitution. The challenged convictions arise out of the
Fresno County Superior Court, which is located within the
Eastern District of California. 28 U.S.C. § 2241(d).
April 24, 1996, Congress enacted the Antiterrorism and
Effective Death Penalty Act of 1996 (“AEDPA”),
which applies to all petitions for writ of habeas corpus
filed after its enactment. Lindh v. Murphy, 521 U.S.
320 (1997); Jeffries v. Wood, 114 F.3d 1484, 1499
(9th Cir. 1997) (en banc). The instant petition was filed
after the enactment of the AEDPA and is therefore governed by
the AEDPA, relitigation of any claim adjudicated on the
merits in state court is barred unless a petitioner can show
that the state court's adjudication of his claim:
(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 on an
unreasonable determination of the facts in light of the
evidence presented in the State court proceeding.
28 U.S.C. § 2254(d); Harrington v. Richter, 562
U.S. 86, 97-98 (2011); Lockyer v. Andrade, 538 U.S.
63, 70-71 (2003); Williams, 529 U.S. at 413.
threshold matter, this Court must “first decide what
constitutes ‘clearly established Federal law, as
determined by the Supreme Court of the United
States.'” Lockyer, 538 U.S. at 71 (quoting
28 U.S.C. § 2254(d)(1)). In ascertaining what is
“clearly established Federal law, ” this Court
must look to the “holdings, as opposed to the dicta, of
[the Supreme Court's] decisions as of the time of the
relevant state-court decision.” Williams, 529
U.S. at 412. “In other words, ‘clearly
established Federal law' under § 2254(d)(1) is the
governing legal principle or principles set forth by the
Supreme Court at the time the state court renders its
decision.” Id. In addition, the Supreme Court
decision must “‘squarely address  the issue in
th[e] case' or establish a legal principle that
‘clearly extend[s]' to a new context to the extent
required by the Supreme Court in . . . recent
decisions”; otherwise, there is no clearly established
Federal law for purposes of review under AEDPA. Moses v.
Payne, 555 F.3d 742, 754 (9th Cir. 2009) (quoting
Wright v. Van Patten, 552 U.S. 120, 125 (2008));
Panetti v. Quarterman, 551 U.S. 930 (2007);
Carey v. Musladin, 549 U.S. 70 (2006). If no clearly
established Federal law exists, the inquiry is at an end and
the Court must defer to the state court's decision.
Musladin, 549 U.S. 70; Wright, 552 U.S. at
126; Moses, 555 F.3d at 760.
Court determines there is governing clearly established
Federal law, the Court must then consider whether the state
court's decision was “contrary to, or involved an
unreasonable application of, [the] clearly established
Federal law.” Lockyer, 538 U.S. at 72 (quoting
28 U.S.C. § 2254(d)(1)). “Under the
‘contrary to' clause, a federal habeas court may
grant the writ if the state court arrives at a conclusion
opposite to that reached by [the Supreme] Court on a question
of law or if the state court decides a case differently than
[the] Court has on a set of materially indistinguishable
facts.” Williams, 529 U.S. at 412-13; see
also Lockyer, 538 U.S. at 72. “The word
‘contrary' is commonly understood to mean
‘diametrically different, ' ‘opposite in
character or nature, ' or ‘mutually
opposed.'” Williams, 529 U.S. at 405
(quoting Webster's Third New International Dictionary 495
(1976)). “A state-court decision will certainly be
contrary to [Supreme Court] clearly established precedent if
the state court applies a rule that contradicts the governing
law set forth in [Supreme Court] cases.” Id.
If the state court decision is “contrary to”
clearly established Supreme Court precedent, the state
decision is reviewed under the pre-AEDPA de novo standard.
Frantz v. Hazey, 533 F.3d 724, 735 (9th Cir. 2008)
the ‘reasonable application clause, ' a federal
habeas court may grant the writ if the state court identifies
the correct governing legal principle from [the] Court's
decisions but unreasonably applies that principle to the
facts of the prisoner's case.” Williams,
529 U.S. at 413. “[A] federal court may not issue the
writ simply because the court concludes in its independent
judgment that the relevant state court decision applied
clearly established federal law erroneously or incorrectly.
Rather, that application must also be unreasonable.”
Id. at 411; see also Lockyer, 538 U.S. at
75-76. The writ may issue only “where there is no
possibility fair minded jurists could disagree that the state
court's decision conflicts with [the Supreme Court's]
precedents.” Richter, 562 U.S. at 102. In
other words, so long as fair minded jurists could disagree on
the correctness of the state court's decision, the
decision cannot be considered unreasonable. Id. If
the Court determines that the state court decision is
objectively unreasonable, and the error is not structural,
habeas relief is nonetheless unavailable unless the error had
a substantial and injurious effect on the verdict. Brecht
v. Abrahamson, 507 U.S. 619, 637 (1993).
court looks to the last reasoned state court decision as the
basis for the state court judgment. Stanley v.
Cullen, 633 F.3d 852, 859 (9th Cir. 2011); Robinson
v. Ignacio, 360 F.3d 1044, 1055 (9th Cir. 2004). If the
last reasoned state court decision adopts or substantially
incorporates the reasoning from a previous state court
decision, this court may consider both decisions to ascertain
the reasoning of the last decision. Edwards v.
Lamarque, 475 F.3d 1121, 1126 (9th Cir. 2007) (en banc).
“When a federal claim has been presented to a state
court and the state court has denied relief, it may be
presumed that the state court adjudicated the claim on the
merits in the absence of any indication or state-law
procedural principles to the contrary.”
Richter, 562 U.S. at 99. This presumption may be
overcome by a showing “there is reason to think some
other explanation for the state court's decision is more
likely.” Id. at 99-100 (citing Ylst v.
Nunnemaker, 501 U.S. 797, 803 (1991)).
the state court reaches a decision on the merits but provides
no reasoning to support its conclusion, a federal habeas
court independently reviews the record to determine whether
habeas corpus relief is available under § 2254(d).
Stanley, 633 F.3d at 860; Himes v.
Thompson, 336 F.3d 848, 853 (9th Cir. 2003).
“Independent review of the record is not de novo review
of the constitutional issue, but rather, the only method by
which we can determine whether a silent state court decision
is objectively unreasonable.” Himes, 336 F.3d
at 853. While the federal court cannot analyze just what the
state court did when it issued a summary denial, the federal
court must review the state court record to determine whether
there was any “reasonable basis for the state court to
deny relief.” Richter, 562 U.S. at 98. This
court “must determine what arguments or theories ...
could have supported, the state court's decision; and
then it must ask whether it is possible fairminded jurists
could disagree that those arguments or theories are
inconsistent with the holding in a prior decision of [the
Supreme] Court.” Id. at 102.
first claim for relief, Petitioner asserts that his police
interview was inadmissible because he was never advised that
if he were indigent, counsel could be appointed to represent
him. (ECF No. 1 at 6, 22). Respondent argues that because
Petitioner did not object at trial, this claim is
procedurally defaulted. Respondent further argues that even
if the claim is not defaulted, it should be denied because
admitting the interview did not have a substantial and
injurious effect on the verdict. (ECF No. 9 at 16).
raised this claim on direct appeal to the California Court of
Appeal, Fifth Appellate District, which denied the claim in a
reasoned decision. The California Supreme Court summarily
denied Petitioner's petition for review. As federal
courts review the last reasoned state court opinion, the
Court will “look through” the California Supreme
Court's summary denial and examine the decision of the
California Court of Appeal. See Brumfield v. Cain,
135 S.Ct. 2269, 2276 (2015); Johnson v. Williams,
133 S.Ct. 1088, 1094 n.1 (2013); Ylst, 501 U.S. at
denying Petitioner's Miranda claim, the
California Court of Appeal stated:
When Cowan surrendered to police, he told a member of the
SWAT team, “I know I killed her.” He repeated
this statement several times. A short while later, as he was
receiving medical attention, Cowan turned to a paramedic and
said that he was “sorry for shooting that lady.”
The comment was overheard by a homicide detective named Ray
Villalvazo. In the ostensible interest of public safety,
Detective Villalvazo asked Cowan where the gun was located.
Cowan replied that he had dropped it in the street.
After being transported to police headquarters, Cowan
attempted to engage Officer Manuel Maldonado in conversation
by saying, “Hey bro, can I ask you a question?”
The officer replied, “Sure. You can ask me anything you
want.” Cowan then made the following statements:
“If I was in a field with a rifle and accidentally shot
myself in the head, got scared, and pointed the gun away, not
realizing my finger was still on the trigger and the gun was
still firing, [and] next thing I know I shot two people, what
can they do to me for that? What happens? You know, I
didn't mean for all that to happen.” Officer
Maldonado gave a noncommittal response, advising that he
should “hold those questions and statements” for
the homicide detectives who would be ready to speak with him
in just a few minutes. He then escorted Cowan to an interview
room and turned him over to Detective Villalvazo.
Once inside the interview room, Detective Villalvazo
attempted to inform Cowan of his Miranda rights. The
advisement was memorialized in an audio recording as follows:
“[W]e have to, uh, you know, read you your rights
before we get started, okay? [Cowan responds affirmatively.]
All right. So before we do that I'll tell you that you
have the right to remain silent. Anything you say can and
will be used against you in a court of law. You have the
right to talk to an attorney and have an attorney present
with you while ...