Cowan v. Stovall

645 F.3d 815, 2011 U.S. App. LEXIS 14681, 2011 WL 2802914
CourtCourt of Appeals for the Sixth Circuit
DecidedJuly 19, 2011
Docket08-2338
StatusPublished
Cited by29 cases

This text of 645 F.3d 815 (Cowan v. Stovall) is published on Counsel Stack Legal Research, covering Court of Appeals for the Sixth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Cowan v. Stovall, 645 F.3d 815, 2011 U.S. App. LEXIS 14681, 2011 WL 2802914 (6th Cir. 2011).

Opinions

KETHLEDGE, J., delivered the opinion of the court, in which ROGERS, J., joined. BATCHELDER, C.J. (pp. 821-22), delivered a separate dissenting opinion.

OPINION

KETHLEDGE, Circuit Judge.

Tracy Cowan was charged with various drug offenses in Michigan state court based on her presence in a house where the drugs were found. Cowan did not own the house, and her defense was that she did not know the drugs were there. But her lawyer at the time — who was high on cocaine for much of the time he represented her — never interviewed any of the other people in the house or called them as witnesses at trial. Cowan was eventually convicted of all the charges. Years later, she filed a pro se habeas petition in which she presented numerous claims. One of them was that her trial lawyer was ineffective as a result of his failure to interview the other people in the house. The district court held that Cowan had not timely presented this claim, and thus did not consider it. We respectfully disagree with the court as to whether Cowan timely presented her failure-to-interview claim, and to that extent we remand the case; but we otherwise affirm.

I.

On September 26, 2002, the City of Farmington Hills Police Department conducted a controlled buy of cocaine using a confidential informant. A dealer named Tamir Bell took the informant to several locations during the buy, including a house on Appoline Street in Detroit. Later that night, the police raided the house. Inside there were six people: Cowan; her adult daughter, Crystal Cowan; her teenage daughter, Rachel Carter; her teenage son, Richard Carter; her infant grandson; and Pappilon Tucker, the teenage son of her ex-boyfriend, Rory Jones, who was himself an alleged drug dealer. In a locked closet in the master bedroom, the police found 714 grams of cocaine, a pound of marijuana, and two loaded firearms. In a locked pantry in the basement, they found 800 grams of cocaine, scales, presses, and other dealer paraphernalia. Although Cowan did not own the house and said she was only staying there for the night, prosecutors later charged her with possession of the drugs and guns that were found there. She had no criminal record at the time.

David Perlman took over as Cowan’s defense attorney four months before her trial. He regularly used cocaine during the time he represented her, for which the Michigan Attorney Grievance Commission later suspended his law license.

At trial, Perlman’s defense theory was that Cowan had not been present in the house during the controlled buy and knew nothing about the drugs there. Instead, Perlman argued, Cowan had gone to the house that night to visit her children and then had fallen asleep. Although Perlman knew that Cowan’s children had been in the house that night, and thus that they potentially could have corroborated her story, he never interviewed them or called them as witnesses at trial. Instead, as his sole witness, Perlman called a personal investigator who testified primarily about the house’s layout and how the drugs were hidden in the basement.

The jury convicted Cowan on all counts. She was sentenced to a minimum of 20 years for possessing the cocaine, 2 years for possessing the firearms, and 6 months [818]*818for possessing the marijuana, all to be served consecutively. She reported to prison in 2008.

Cowan filed a direct appeal with the help of a new lawyer. She challenged her conviction on several grounds, including that her trial counsel was constitutionally ineffective. The Michigan Court of Appeals rejected her arguments. People v. Cowan, No. 250838, 2005 WL 119811 (Mich.Ct.App. Jan. 20, 2005). She sought leave to appeal from the Michigan Supreme Court, which denied her request. People v. Cowan, 474 Mich. 855, 702 N.W.2d 579 (2005) (table).

Cowan thereafter filed a pro se habeas petition in federal court. She asserted numerous claims, including that Perlman was ineffective for failing to interview “willing and available” witnesses who “would have supported Petitioner’s defense that she was not present during the [drug] transaction.” Cowan later filed a motion to amend her petition, in which she spelled out in greater detail the witnesses whom Perlman had ignored and the substance of what their testimony would have been. The district court denied the motion. Co-wan also moved for an evidentiary hearing, which the district court denied. The court then denied her petition. Cowan moved for reconsideration, attaching sworn affidavits from the uncalled witnesses to the effect that Cowan had known nothing about the drugs. The district court denied that motion as well.

The district court denied Cowan permission to appeal. She asked this court for a certificate of appealability, which we granted only with respect to her ineffective-assistance claim.

II.

We review de novo the district court’s denial of habeas relief. Maples v. Stegall, 340 F.3d 433, 436 (6th Cir.2003).

A.

Cowan argues, among many other things, that we should remand her case with instructions to grant the writ based upon Perlman’s failure to interview the other people in the house where the drugs were found. The district court did not reach the merits of this claim because it thought the claim was not timely presented. We consider that issue first.

The habeas statute imposes a one-year limitations period on habeas applications by state prisoners. See 28 U.S.C. § 2244(d). But Fed.R.Civ.P. 15(c)(1) as applied in habeas cases creates an exception to that rule: when a prisoner files an original petition within the one-year deadline, and later presents new claims in an amended petition filed after the deadline passes, the new claims relate back to the date of the original petition if the new claims share a “common core of operative facts” with the original petition. Mayle v. Felix, 545 U.S. 644, 664, 125 S.Ct. 2562, 162 L.Ed.2d 582 (2005).

Here, Cowan filed her original petition within the one-year limitations period. According to the district court, however, Cowan’s original petition did not include an ineffective-assistance claim based on Perlman’s failure to interview the other people in the house. Later, after the one-year limitations period had passed, Cowan moved to file an amended petition that clearly did include a failure-to-interview claim. But the district court thought that claim was based on facts that “differed] in both time and type” from the facts set forth in her original petition. Thus the claim would not relate back to the date of the original petition, which in turn meant the claim would be untimely. The district court therefore denied leave to file the claim.

[819]*819Thus, the linchpin of the district court’s refusal to consider Cowan’s failure-to-interview claim was that it did not share a common core of operative facts with Co-wan’s original petition. That is the question we focus on now. In her original petition, Cowan alleged as part of her ineffective-assistance claim:

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645 F.3d 815, 2011 U.S. App. LEXIS 14681, 2011 WL 2802914, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cowan-v-stovall-ca6-2011.