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Cowan v. Richard

United States District Court, N.D. Ohio, Eastern Division

April 16, 2019

DARRELL LYNN COWAN, Petitioner,
v.
RHONDA RICHARD, WARDEN, Defendant.

          SARA LIOI JUDGE.

          REPORT & RECOMMENDATION

          Thomas M. Parker United States Magistrate Judge.

         I. Introduction

         Currently before me is the petition of Darrell Lynn Cowan, Ohio Inmate #699-979, for a writ of habeas corpus under 28 U.S.C. § 2254.[1] Respondent filed an answer/return of writ.[2] The matter was automatically referred for preparation of a report and recommendation on June 30, 2017.

         On April 10, 2014, an Ohio jury found Cowan guilty of aggravated trafficking in drugs. On April 15, 2014, Cowan was sentenced to serve a prison term of 11 years.[3] Cowan is currently incarcerated at the Madison Correctional Institution.[4]

         Cowan's petition raises two grounds for relief.[5] On October 6, 2017, respondent filed a return of writ. Cowan filed a traverse on January 11, 2018 and respondent filed a sur-reply to the traverse on January 26, 2018. Because Cowan's grounds for relief are untimely, procedurally defaulted, lacking merit and/or present only noncognizable issues, I recommended that his petition be DISMISSED with prejudice.

         II. Procedural History

         A. Original Proceedings Leading to Conviction

         On September 18, 2013, Cowan was indicted on one count of aggravated trafficking in violation of Ohio Rev. Code § 2925.03(C)(1)(f) with a major drug offender specification and a forfeiture of money specification. ECF Doc. 8-1 at 46-48. An attorney was appointed to represent Cowan. Before trial, Cowan sent a letter to the trial court requesting that his counsel be replaced. ECF Doc. 8-2 at 284-285. The trial court denied Cowan's request in a judgment entry and order dated April 7, 2014. ECF Doc. 8-1 at 50-51.

         Prior to trial, the state moved to amend the indictment to “reflect a SCHEDULE II, rather than a I as indicted.” ECF Doc. 8-1 at 52. Cowan did not object and the trial court granted the motion on April 14, 2014. ECF Doc. 8-1 at 54.

         The case went to trial. When the state rested, Cowan's attorney moved for acquittal under Ohio Crim. R. 29. ECF Doc. 8-1 at 55. He renewed the motion after resting defendant's case. Id. The court granted defendant's request for a jury instruction on the affirmative defense of duress. ECF Doc. 8-1 at 68-69. The jury found Cowan guilty on the sole charge, with the additional finding of a sufficient weight of drugs necessary to support the major drug offender specification and the forfeiture specification. ECF Doc. 8-1 at 76-78. The trial court sentenced Cowan to a mandatory 11 year prison term. ECF Doc. 8-1 at 79-81.

         B. Direct Appeal

         The trial court appointed new counsel to represent Cowan on appeal. ECF Doc. 8-1 at 83. Cowan filed a notice of appeal with the Sixth District Court of Appeals on April 30, 2014. ECF Doc. 8-1 at 85. Cowan raised the following assignments of error on direct appeal:

FIRST ASSIGNMENT OF ERROR: The Appellant was denied his right to counsel as guaranteed by the United States and Ohio Constitutions when the court did not grant trial counsel's motion to withdraw.
SECOND ASSIGNMENT OF ERROR: The trial court abused its discretion in denying trial counsel's motion to withdraw as counsel.
THIRD ASSIGNMENT OF ERROR: Appellant's conviction is against the manifest weight of the evidence.
FOURTH ASSIGNMENT OF ERROR: The trial court abused its discretion when it allowed the admission of evidence in violation of Evid. R. 609 over trial counsel's objection.

ECF Doc. 8-1 at 88. The court of appeals affirmed the trial court's judgment on May 29, 2015. ECF Doc. 8-1 at 135-146.

         On July 13, 2015, Cowan filed a pro se appeal notice in the Ohio Supreme Court. ECF Doc. 8-1 at 147. Cowan's memorandum in support of jurisdiction asserted the following propositions of law:

PROPOSITION OF LAW I: The appellant was denied his right to effective counsel as guaranteed by the U.S. and Ohio Constitutions where trial counsel did not present or pursue existing evidence proving appellant's family was under continuous and serious threat nor presenting that despite prior felony, appellant did not carry a gun - a requirement indicative of a member of a vicious Mexican drug cartel.
PROPOSITION OF LAW II: The felony trial court has no proof that defendant is a member of the Mexican drug cartel; they fail to disprove ongoing distress against Appellant's family, nor does the trial court have jurisdiction to find appellant a member of a violent Mexican drug cartel as this appellant's Sixth Amendment right to be informed by indictment of this issues has been violated. The court cannot enhance or determine charges against the appellant without that issue having been determined by a jury.

ECF Doc. 8-1 at 150. On September 30, 2015, the Ohio Supreme Court declined jurisdiction and denied leave to appeal. ECF Doc. 8-1 at 175. No. further action was taken on Cowan's direct appeal.

         C. Post-Conviction Relief

         While his direct appeal was pending, Cowan filed a pro se petition for post-conviction relief on November 10, 2014, raising three grounds for relief:

GROUND FOR RELIEF I: ineffective assistance of counsel;
GROUND FOR RELIEF II: Cowan was disadvantaged by judicial prejudicial action; and
GROUND FOR RELIEF III: inadequate jury instructions presented only for finding of guilty as a major drug supplier with no alternative that the defendant was only a mule pressed into service by the vicious threats of a cartel.

ECF Doc. 8-1 at 179-181. The trial court denied Cowan's petition on April 23, 2015. ECF Doc. 8-1 at 185-187. Cowan did not appeal this decision.

         D. Ohio Appellate Rule 26(B) Application to Reopen Direct Appeal

         On August 19, 2015, Cowan filed a pro se Ohio App. R. 26(B) application to reopen his direct appeal. ECF Doc. 8-1 at 189. Cowan alleged his appellate counsel was ineffective for failing to raise the following assignments of error on direct appeal:

Appellant was not indicted for being a member of a violent Mexican drug cartel gang. Using this issue against him as proof of, or monetary enhancement of, his sentence not only violates his Sixth Amendment right to trial by jury but also his Fifth Amendment right against imprisonment.
Failure to present duress defense directly due to ineffective assistance of trial counsel which violates Sixth Amendment right to effective assistance of counsel.
Appellant was disadvantaged by judicial prejudice.

ECF Doc. 8-1 at 190, 193, 196. On February 4, 2016, the Ohio Court of Appeals determined that Cowan had failed to demonstrate a genuine issue as to whether he received ineffective assistance of counsel and denied his motion to reopen his direct appeal. ECF Doc. 8-1 at 200.

         Cowan filed a timely notice of appeal with the Ohio Supreme Court on March 10, 2016. ECF Doc. 8-1 at 205. He filed a memorandum in support of jurisdiction raising these propositions of law:

1. When an appellant not indicted for being a member of a violent Mexican Drug Cartel gang, can this issue be used against him as proof of, or monetary enhancement of, his sentence in violation of his Sixth Amendment right to trial by jury and his Fifth Amendment right against imprisonment without indictment;
2. A failure to present duress defense as an alibi to the state is directly due to ineffective assistance of trial counsel which violates Sixth Amendment right to effective assistance of counsel; and
3. Appellant was disadvantaged by judicial prejudice.

ECF Doc. 8-1 at 208. On May 18, 2016, the Ohio Supreme Court declined jurisdiction. ECF Doc. 28 at 226. Cowan did not file a petition for certiorari in the United States Supreme Court.

         III. Federal Habeas Petition

         On May 22, 2017, Cowan placed his pro se petition for a writ of habeas corpus in the prison mail system. Although not filed until May 27, 2017, under the prison mailbox rule, it is considered filed on the day he placed it into the prison mail system. His petition raises two grounds for relief:

GROUND ONE: Right to Effective Counsel - Court refused to allow Defense Counsel to withdraw.
SUPPORTING FACTS: Available in trial transcript: Appointed counsel did not pursue a question of evidence to show that Appellant tried to get his family out of danger. Did not pursue why part of the Audio from the D.E.A. arrest was not available when the appellant was questioned beside the Toyota Tacoma out side the hotel at the beginning of the arrest. Did not protest the judge stopping the trial for side bar to assist the prosecutors cross examining the state witness about knowing about the situation of the family when the answer would have shown perjury to previous statement. Did not pursue the questioning to bring out the perjury. Did not try to show that appellant was not a willing member of a Mexican Cartel. Did not try to stop the prosecution from continually saying that the appellant was a high ranking member of a Mexican Cartel.
GROUND TWO: The state presented evidence of prior bad acts not related to current offense. Defense counsel did not object.
SUPPORTING FACTS: See trial transcript: The prior bad act was committed over 10 years prior. The appellant was punished for this at the time and completed 100 percent of the punishment without mishap. This came forth only because the appellant was not trying to hide anything.

ECF Doc. 1.

         IV. Law and Analysis

         A. Factual Background

         We begin with the factual determinations from the Ohio courts. Factual findings of state courts are presumed correct unless a petitioner rebuts them with clear and convincing evidence. 28 U.S.C. § 2254(e)(1); Moore v. Mitchell, 708 F.3d 760, 775 (6th Cir. 2013). The Ohio Court of Appeals made the following findings of fact:

{¶ 2} On September 18, 2013, the Wood County Grand Jury indicted appellant on one count of aggravated trafficking in drugs, in violation of R.C. 2925.03(A)(1) and (C)(1)(f), with a major drug offender specification. The charges were based on appellant's conduct on September 10, 2013, when he sold eight kilograms of methamphetamines to an undercover agent.
{¶ 3} Because appellant was indigent, the trial court appointed an attorney to represent him. Thereafter, appellant entered a plea of not guilty, and the matter proceeded towards a jury trial scheduled to begin on April 9, 2014.
{ΒΆ 4} On April 4, 2014, the trial court held a hearing in response to a handwritten letter from appellant in which he requested that his appointed counsel be terminated. Appellant asserted in the letter that counsel had expressed problems with the prosecutor, had not pursued or verified some parts of his defense, had not informed appellant of the status of the case, and seemed more concerned with the clothes that appellant would be wearing to court. Appellant concluded that he was not receiving fair representation from appointed counsel. At the hearing, appointed counsel disputed the allegations in the letter, but nonetheless advocated that the fact of ...

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