Paul Cousin v. Cynthia Tompkins

• Court: Court of Appeals for the Ninth Circuit
• Decided: January 19, 2022
• Docket: 20-55840
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JAN 19 2022 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

PAUL EUGENE COUSIN, No. 20-55840

Petitioner-Appellant, D.C. No. 5:16-cv-00254-CAS-MRW v.

CYNTHIA TAMPKINS, Warden, MEMORANDUM*

Respondent-Appellee.

Appeal from the United States District Court for the Central District of California Christina A. Snyder, District Judge, Presiding

Argued and Submitted November 17, 2021 Pasadena, California

Before: WARDLAW, PARKER,** and HURWITZ, Circuit Judges. Dissent by Judge PARKER

Paul Cousin appeals the district court’s denial of his 28 U.S.C. § 2254

petition for habeas corpus, which asserted ineffective assistance of trial counsel

and actual innocence. We have jurisdiction pursuant to 28 U.S.C. §§ 1291 and

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Barrington D. Parker, Jr., United States Circuit Judge for the U.S. Court of Appeals for the Second Circuit, sitting by designation. 2253, and we affirm.

“We review de novo the district court’s denial of [Cousin’s] habeas corpus

petition.” Sanders v. Cullen, 873 F.3d 778, 793 (9th Cir. 2017). Our review is

governed by the Anti-Terrorism and Effective Death Penalty Act of 1996

(“AEDPA”), 28 U.S.C. § 2254(d). Under AEDPA, we must defer to the last state

court’s reasoned decision—here, the decision of the Superior Court for the County

of Riverside—on any claim that was adjudicated on the merits unless that decision

was: (1) “contrary to, or involved an unreasonable application of, clearly

established Federal law, as determined by the Supreme Court of the United States;

or” (2) “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).

To establish ineffective assistance of counsel, Cousin must prove: (1) that

his trial counsel’s performance was deficient, and (2) that “there is a reasonable

probability that, but for counsel’s professional errors, the result of the proceeding

would have been different.” Strickland v. Washington, 466 U.S. 668, 694 (1984).

1. The state court denied relief on Cousin’s ineffective assistance of

counsel claim solely on prejudice grounds and did not address whether trial

counsel’s performance was deficient. A state court “need not decide whether

counsel’s performance was deficient when the claim of ineffectiveness may be

rejected for lack of prejudice.” Jackson v. Calderon, 211 F.3d 1148, 1155 n.3 (9th

2 Cir. 2000); see also Strickland, 466 U.S. at 697 (“[A] court need not determine

whether counsel’s performance was deficient before examining the prejudice.”).

Under AEDPA’s doubly deferential standard, we cannot conclude that fair-minded

jurists would uniformly agree that the state court’s conclusion that Cousin was not

prejudiced by counsel’s performance is “lacking in justification.” White v.

Wheeler, 577 U.S. 73, 79 (2015).

The state court reasonably determined that Cousin’s statements to the

police—that Cousin “didn’t rob nobody,” that the police won’t “find no money on

me,” and that Rush was the accuser—were “damning” and “contextually out of

sync with an innocent explanation of the night’s events” because the record does

not explain how Cousin would have known that Rush was the alleged victim or

that money was stolen when he made those statements. See Sanchez v. Davis, 994

F.3d 1129, 1143 (9th Cir. 2021) (finding no prejudice in part because the defendant

“made incriminating statements . . . which were admitted in evidence against

him”). The state court also reasonably recognized that pursuing a defense based on

Kuyateh’s prostitution would “not necessarily preclude a robbery” because Cousin

did not approve of his girlfriend’s prostitution, and thus he may have been

motivated to take the money Rush received through the arrangement.

2. The California Supreme Court’s denial of relief on actual innocence

grounds did not rest on an unreasonable determination of the facts. Even assuming

3 this claim is cognizable in federal habeas,1 Cousin failed to satisfy the

“extraordinarily high” standard required for relief, Carriger v. Stewart, 132 F.3d

463, 476 (9th Cir. 1997) (en banc), and “affirmatively prove that he is probably

innocent.” Gimenez v. Ochoa, 821 F.3d 1136, 1145 (9th Cir. 2016). While the

state court acknowledged that the evidence adduced at the habeas hearing would

have “further eroded” Rush’s credibility and “the likelihood of conviction would

be diminished,” it also reasonably found that Rush’s incriminating statements

“were not undermined” and the evidence “opens avenues of argument for the

[prosecution], as well.” Thus, its conclusion that Cousin failed to prove actual

innocence was not objectively unreasonable.

AFFIRMED.

1 It is an open question whether actual innocence is a cognizable freestanding claim for federal habeas review. See McQuiggins v. Perkins, 569 U.S. 383, 392 (2013).

4 FILED Paul Cousin v. Cynthia Tompkins, No. 20-55840 JAN 19 2022

PARKER, Circuit Judge, dissenting: MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

I respectfully dissent. Paul Cousin was convicted of robbery under

California Penal Code § 211 and served eight years in prison. The conviction was

largely based on a 911 report by Cleveland Rush that he had been robbed of $20 by

a “45- to 50-year-old black light-complected male armed with a sharp object.” On

several later occasions, Rush testified under oath that Cousin never robbed him,

that no robbery had occurred, and that he had lied in his 911 call. Cousin sought

habeas relief, but the state court denied Cousin’s petition, concluding that Cousin

had not established ineffective assistance of counsel or actual innocence. After

summary denials from the California Court of Appeal and the California Supreme

Court, Cousin brought a federal habeas petition asserting ineffective assistance of

counsel and actual innocence claims, which also were denied. 1 A magistrate judge

issued a recommendation to deny relief, which the district court adopted. Cousin

appeals.

Because the state court did not address the deficiency prong, we review it de

novo. See Poyson v. Ryan, 879 F.3d 875, 887 (9th Cir. 2018). To establish

1 Ineffective assistance of counsel claims are analyzed under the two prongs of Strickland v. Washington: (1) whether counsel’s performance fell below an objective standard of reasonableness (the “deficiency prong”), and (2) whether the attorney’s inadequate representation prejudiced the defendant (the “prejudice prong”). 466 U.S. 668 (1984). deficiency, a party must show that counsel’s representation fell “below an

objective standard of reasonableness.” Strickland, 466 U.S. at 688. Souley Diallo’s

representation of Cousin fell well below that standard. Diallo failed interview any

witnesses, including Cousin’s girlfriend, Kuyateh, who could have testified that

she and Cousin were aware that the police were investigating a robbery prior to his

arrest. This testimony would have negated statements that Cousin made at the time

of his arrest (see infra at 7), which were the only evidence of guilt offered by the

prosecution beyond the initial 911 call. Additionally, Kuyateh’s habeas testimony

indicated that she could have provided cousin with an alibi covering the period

when the alleged robbery occurred.

Kuyateh’s failure to show up for a scheduled meeting with Diallo’s

investigator does not excuse trial counsel’s failure to interview her. After all, she

was not a surprise or missing witness; she was the main witness. There was a two-

month interval between the alleged “robbery” and the trial, and Diallo knew where

Kuyateh lived. Any reasonably diligent attorney would have followed up after the

missed meeting. See Rompilla v. Beard, 545 U.S. 374, 387 (2005) (“Counsel must

explore all avenues leading to facts relevant to the merits of the case.”); see also

Howard v. Clark, 608 F.3d 563, 570-71 (9th Cir. 2010) (holding that trial counsel

“could not reasonably have decided to forego an independent investigation of [a

crucial] witness who might have provided strong support for [petitioner’s] claim of

2 innocence.”).

Additionally, trial counsel’s trial strategy was unreasonable. Diallo focused

the entire defense case on Rush’s recantation from the preliminary hearing—that

he had called the police so that they could help him get the $20 back that he lent

Cousin. This explanation is nonsensical, and Diallo offered the jury no reasonable

explanation for why Rush reported a robbery in the first place.

Trial counsel’s decision not to put on a single defense witness but instead to

rely on the inconsistent statements of an unreliable narrator (Rush) was not a

reasonable “strategic” decision because it was not based on an adequate

investigation. See Bemore v. Chappell, 788 F.3d 1151, 1165 (9th Cir. 2015)

(“counsel can hardly be said to have made a strategic choice when s/he has not yet

obtained the facts on which a decision could be made.”).

Trial counsel assumed that Kuyateh would not be a credible witness because

she was a prostitute without ever interviewing her. He similarly assumed that

Cousin would be worse off by pursuing the “prostitution angle”—despite the fact

that the story provided a plausible motive for Rush’s 911 call. These decisions

might have been “strategic” if trial counsel had done any preparation, but “[w]hen

defense counsel merely believes certain testimony might not be helpful, no

reasonable basis exists for deciding not to investigate.” Duncan v. Ornoski, 528

F.3d 1222, 1235 (9th Cir. 2008). In sum, trial counsel “had insufficient facts on

3 which to make any reasonable assumptions or on which to base any reasonable

decision as to the appropriate defense or defenses to be offered.” Rios v. Rocha,

299 F.3d 796, 806 (9th Cir. 2002). A basic investigation would have informed trial

counsel and allowed him to present proof that there was no robbery, no victim, no

witnesses, no weapon, and no proceeds. Accordingly, I conclude that Cousin has

met his burden of showing that Diallo’s performance was deficient.

To establish prejudice under the Strickland analysis, a party must show “a

reasonable probability that, but for counsel’s unprofessional errors, the result of the

proceeding would have been different.” Strickland, 466 U.S. at 694. Because the

state court reached the prejudice prong, we review its analysis under 28 U.S.C. §

2254(d). 2 Under these circumstances, we may not grant habeas relief unless the

state court’s adjudication “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 “resulted in a decision that was based

on an unreasonable determination of the facts in light of the evidence presented in

2 The “first step” in determining whether to give deference under § 2254(d) is to determine the relevant state-court decision. See Amado v. Gonzalez, 758 F.3d 1119, 1130 (9th Cir. 2014). Under the “look through” doctrine, this Court looks “to the last reasoned decision” that resolved the claim to determine whether that claim was adjudicated on the merits. See Ylst v. Nunnemaker, 501 U.S. 797, 804 (1991). Here, the superior court denied Cousin’s claims in 2018 in a reasoned decision. The California Court of Appeal and California Supreme Court then summarily denied the same claims. Thus, this Court “looks through” those later summary denials to the superior court’s reasoned decision. See Cannedy v. Adams, 706 F.3d 1148, 1156 (9th Cir. 2013). Because the superior court denied Cousin’s ineffective assistance of counsel claim on prejudice grounds, the prejudice element is subject to § 2254(d). Porter v. McCollum, 558 U.S. 30, 39 (2009).

4 the State court proceeding.” 28 U.S.C. § 2254(d). I conclude that the state court’s

decision was based on an unreasonable determination of the facts.

The state court unreasonably failed to grapple with a host of facts presented

at the habeas proceeding. Rush, the supposed victim, testified at least nineteen

times under oath that he was never robbed—by Cousin or anyone else. In fact,

Rush apologized to Cousin on the witness stand for lying about the robbery and for

causing his arrest. That should have been the end of the matter. Multiple

disinterested witnesses offered testimony at the habeas proceeding that

corroborated the prostitution arrangement. Taken together, there was a plethora of

evidence that despite the initial 911 call, no robbery ever occurred.

The lower court also unreasonably failed to engage with the fact that Rush’s

initial report to police about the robbery was pockmarked with inconsistencies. On

the 911 call, Rush identified his assailant with only a physical description and no

name, despite the fact that he had known Cousin for many years. Rush lied to the

911 dispatcher about his own name, and that he was not where he told the

dispatcher he would be when the police arrived. Then, when the police arrested

Cousin, Rush asked them not to press charges. Rush testified under oath on at least

nineteen occasions—seven times during the preliminary hearing and at least

twelve times during trial—that he had lied in his 911 call and that Cousin never

robbed him. The testimony of multiple disinterested witnesses at the habeas

5 proceeding corroborated Rush’s previously untold story about the prostitution

arrangement. Because none of these facts were mentioned, much less analyzed, by

the state court, it was unreasonable for it to conclude that Cousin had robbed Rush.

In denying habeas relief, the state court made much of what it referred to as

Cousin’s “damning” statements that it saw as “contextually out of context with an

innocent explanation of the night’s events.” The statements at issue are: (1) that

after being detained, Cousin spontaneously said, “I ain’t robbed nobody”; (2) that

when the officer asked why Cousin mentioned robbery, he replied, “It ain’t that

hard to figure out”; (3) that Cousin shouted to Kuyateh: “Roosevelt’s trying to say

that I robbed him” (while the officer had not identified the alleged “victim”) ; and

(4) that after being searched, Cousin told the officer “you didn’t even find no

money on me,” even though the officer had not mentioned that money was the

property allegedly taken.

It is not disputed that, apart from the original 911 call and these statements,

there was no other evidence of Cousin’s guilt. But no reasonable adjudicator could

conclude that this evidence proved beyond a reasonable doubt that Cousin robbed

Rush, especially where there was overwhelming evidence to the contrary. In any

event, far from “damning,” these statements make sense when read alongside

Kuyateh’s sworn declaration that before Cousin made those statements “the police

stopped us and asked me if I made a 911 call.” The court therefore unreasonably

6 failed to appreciate that Cousin had already learned that the officers were

investigating a robbery before he spoke with them.

Further, the state court unreasonably determined that it was not prejudicial to

Cousin that Diallo did not present the prostitution story at trial. Multiple

disinterested witnesses offered testimony at the habeas proceeding that

corroborated Rush’s previously untold story about the prostitution arrangement.

The state court unreasonably determined that even if the prostitution story had

been presented it would not have changed the outcome because it did not “refute

the period of time in which Rush and petitioner were outside of the motel room.”

The state court was mistaken. Had the prostitution story been presented to

the jury, it would have provided Cousin with proof that he was elsewhere when

Rush’s 911 call alleged the crime occurred. Moreover, the trial court’s discussion

of “the period of time in which Rush and petitioner were outside of the motel

room” focuses on an irrelevant period of time. The time period to which the court

refers (in which Rush and Cousin were outside the motel room when Kuyateh was

on her first “date” with a client) was before 12:15 a.m. Kuyateh testified that she

was with Cousin from 12:15 a.m. to 1:00 a.m. According to Rush’s phone call to

911, the “crime” occurred around 12:45 a.m. Consequently, if Kuyateh had

testified, the jury would have heard Cousin’s alibi for the time at which the crime

supposedly occurred. Nevertheless, the court elected to speculate (with no

7 evidentiary support) that—despite the fact that Kuyateh’s testimony would have

placed Cousin away from the scene at 12:45 am (the time that Rush said the crime

occurred during the 911 call)—a robbery may have nevertheless occurred before

12:15 am because Cousin and Rush were “perhaps together” earlier in the evening.

In other words, it was unreasonable for the state court to draw factual conclusions

based on speculation that a robbery could have occurred at time that differed from

the time reported to the police by Rush, the purported victim.

Thus, I conclude that there is a reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceeding would have been different.

Strickland, 466 U.S. at 694; Frantz v. Hazey, 533 F.3d 724, 735 (9th Cir. 2008) (en

banc). The government’s case against Cousin was essentially nonexistent. As

noted, the government’s case involved a “robbery” with no victim, no weapon, no

proceeds, and no witnesses. Had trial counsel performed at the appropriate level of

professional competence in investigating and defending this case, I would have

little difficulty concluding that Cousin would have been acquitted. For these

reasons, I would hold that Cousin has established that he is entitled to habeas relief

on his ineffective assistance of counsel claim, and I would reverse the judgment of

the district court and remand with instructions to grant Cousin a writ of habeas

corpus.