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Cowan v. Asuncion

United States District Court, E.D. California

June 7, 2017



         Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254.



         On 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 CT[1] 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[2] 22, 23).

         On 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).


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 malingering.
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 [them].”
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.”[4] 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 original).


         Relief 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).

         On 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 its provisions.

         Under 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.

         As a 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.

         If the 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) (en banc).

         “Under 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).

         The 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)).

         Where 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.



         A. Miranda Violation

         In his 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).[5] 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).

         Petitioner 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 806.

         In denying Petitioner's Miranda claim, the California Court of Appeal stated:

Miranda Issues
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 ...

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