Cowan v. McCall

• Decision Date: 22 August 2011
• Docket Number: C/A No. 0:10-2100-RBH-PJG
• Court: U.S. District Court — District of South Carolina
• Parties: Landrecus Cowan, Petitioner, v. Warden Michael McCall, Respondent.

Landrecus Cowan, Petitioner,

v.Warden Michael McCall, Respondent.

C/A No. 0:10-2100-RBH-PJG

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF SOUTH CAROLINA

August 22, 2011

REPORT AND RECOMMENDATION

Landrecus Cowan ("Cowan"), a self-represented state prisoner, filed this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. This matter comes before the court pursuant to 28 U.S.C. § 636(b) and Local Civil Rule 73.02(B)(2) DSC for a Report and Recommendation on the respondent's motion for summary judgment. (ECF No. 16.) Pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), the petitioner was advised of the summary judgment and dismissal procedures and the possible consequences if he failed to respond adequately to the respondent's motion. (ECF No. 18.) Cowan filed a response in opposition. (ECF No. 22.) Having carefully considered the parties' submissions and the record in this case, the court concludes that the respondent's motion for summary judgment should be granted.

BACKGROUND

Cowan was indicted in Anderson County in September 2001 for murder (01-GS-04-2381), possession of a firearm or knife during the commission of a violent crime (01-GS-04-2382), and armed robbery (01-GS-04-2383). (ECF No. 17-26 at 1-6.) Cowan was represented by Robert A. Gamble, Esquire, and on October 15, 2002, was tried by a jury and found guilty of murder and possession of a firearm or knife during the commission of a violent crime. (App. at 408-9, ECF No. 17-8 at 52-53.) The circuit court sentenced Cowan to life imprisonment for murder and five years'imprisonment for possession of a firearm, both sentences to be served concurrently. (App. at 414, ECF No.17-9 at 2.)

Cowan filed a direct appeal and was represented by Robert M. Dudek, Esquire, Assistant Appellate Defender of the South Carolina Office of Appellate Defense, who filed a final brief raising the following issues:

1. Whether the trial judge erred by allowing the solicitor to cross-examine and challenge petitioner to name the real shooter, and name what witnesses saw the real shooter, since this cross-examination was burden-shifting and fundamentally unfair?

2. Did the trial judge err by ruling Officer Hill's testimony about [what] witnesses Brownlee and Stowers told him at the hospital at some time after the shooting was an excited utterance and not hearsay, since one witness was acting "normal," and the other was simply upset, since these statements did not qualify as excited utterances?

(ECF No. 17-12 at 4.) On March 18, 2005, the South Carolina Court of Appeals affirmed the decision of the lower court. (State v. Cowan, 2005-UP-197 (S.C. Ct. App. Mar. 18, 2005), App. at 416-22, ECF No. 17-9 at 4-10.) Cowan filed a petition for rehearing, which was denied. (ECF No. 17-14 & 17-15.) Cowan then filed a petition on November 23, 2005 with the South Carolina Supreme Court seeking certiorari review of the issues presented to the Court of Appeals. (ECF No. 17-16 at 4.) On January 18, 2007, the South Carolina Supreme Court issued a letter order denying Cowan's petition. (ECF No. 17-18.) The remittitur was issued on January 24, 2007. (ECF No. 17-19.)

Following the dismissal of his appeal, on February 13, 2007 Cowan filed a pro se application for post-conviction relief ("PCR"). (See Cowan v. State of South Carolina, 07-CP-04-416; App. at 423-35, ECF No. 17-9 at 11-23.) In his application, Cowan raised the grounds for relief that he was denied effective assistance of counsel and due process when his trial counsel failed to request jury instructions on self-defense and manslaughter. (App. at 431, ECF No. 17-9 at 19.) The State fileda return. (App. at 436-40, ECF No. 17-9 at 24-28.) On April 22, 2008, Cowan, through counsel Stephen Henry, Esquire, filed an amended PCR application alleging ineffective assistance of counsel for the following reasons:

a. Trial counsel did not adequately prepare for trial.

b. Trial counsel was assigned to the case approximately one month prior to trial and did not have time to prepare for trial.

c. Trial counsel did not seek a continuance although more time was needed to prepare a defense.

d. Trial counsel did not submit a proposed jury instruction for the crime of manslaughter as an alternative to the murder charge.

e. Trial counsel did not submit a proposed jury instruction for self-defense.

f. Trial counsel failed to locate and call Michael Davis as a defense witness.

g. Trial counsel did not prepare the defendant for his testimony.

h. Trial counsel failed to introduce evidence of the victim's prior history of violence.

i. Trial counsel failed to adequately present the criminal history and evidence of benefit for testifying against the defendant of a key witness (Stanley Brownlee).

j. Trial counsel failed to properly interview and prepare key defense witnesses.

k. Trial counsel failed to fully discuss with defendant the impact of his taking the witness stand, including the advantage of final argument to the jury.

l. Trial counsel failed to object to the prosecutor's improper questions, including misstatement of testimony, the introduction of bad character evidence in her questions and other inadmissible evidence.

(ECF No. 17-21 at 2.) On October 23, 2008, the PCR court held an evidentiary hearing at which Cowan appeared and testified and continued to be represented by Stephen Henry, Esquire. (App. at 441-539, ECF No. 17-9 at 29 through ECF No. 17-11 at 43.) At the beginning of the hearing, counsel for Cowan withdrew specification "f" as quoted above. (App. at 444-45, ECF No. 17-9 at32-33.) On November 30, 2008, PCR counsel filed an "Applicant's Brief in Support of Post Conviction Relief." (App. at 547-60, ECF No. 17-11 at 51-64.) By order dated March 12, 2009, the PCR judge denied and dismissed with prejudice Cowan's PCR application. (App. at 561-76, ECF No. 17-11 at 65-80.)

On appeal, Cowan was represented by Robert M. Pachak, Esquire, Assistant Appellate Defender of the South Carolina Commission on Indigent Defense, Division of Appellate Defense, who filed a who filed a Johnson¹ petition for a writ of certiorari that presented the following issue: "Whether trial counsel failed to provide an adversarial challenge to the State's case?" (ECF No. 17-22 at 3.) Cowan filed a pro se response to the Johnson petition in which he alleged:

1. Trial counsel failed to present a competent alibi defense and undermined applicant[']s chance for a manslaughter verdict.

2. Trial counsel failed to request a jury charge on manslaughter.

3. Trial counsel did not challenge a hearsay statement purportedly made [to] Lt. Hill by Andrew Watson.

4. Trial counsel did not object to a prior statement by defense witness Andrew Watson that he (Watson) thought the applicant would commit murder.

5. Failure to object to Solicitor's improper closing arguments.

6. Failure to object to leading questions by the prosecutor.

(ECF No. 17-23.) The South Carolina Supreme Court denied Cowan's petition.² (See Letter from Clerk of Court, ECF No. 17-24.) The remittitur was issued on July 13, 2010. (ECF No. 17-25.)

FEDERAL HABEAS ISSUES

In Cowan's federal petition for a writ of habeas corpus, he raises the following issues:

Ground One: Excited utterance

Supporting Facts: Officer Hill testified that Brownlee was acting normal at the hospital. There was not any basis for admitting his testimony as an excited utterance. Further, Hill's testimony that Stowers was "upset" also did not qualify for his statement at the hospital to be admitted as an excited utterance.

Ground Two: Burden Shifting

Supporting Facts: On cross Solicitor ask[ed] appellant who the real shooter was and she asked who saw the real shooter. The State have the burden of proving appellant's guilt. Appellant's not obligated to prove anything. Even that a third party killed the decedent. The solicitor shifted the burden of proof.

Ground Three: Ineffective Assistance of Counsel

Supporting Facts: (1) Counsel failed to present a competent alibi defense and undermined applicant's chance for a manslaughter verdict; (2) counsel failed to request a jury charge on manslaughter; (3) counsel did not challenge hearsay statement made to Lt. Hill by Watson; (4) counsel did not object to prior statement by Watson that he thought applicant would commit murder; (5) failure to object to closing arguments; (6) failure to object to leading questions; [and] (7) counsel no prepared for trial.

(Pet., ECF No. 1) (errors in original).

DISCUSSION

A. Summary Judgment Standard

Summary judgment is appropriate only if the moving party "shows that there is no genuine dispute as to any material fact and the [moving party] is entitled to judgment as a matter of law."Fed. R. Civ. P. 56(a). A party may support or refute that a material fact is not disputed by "citing to particular parts of materials in the record" or by "showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact." Fed. R. Civ. P. 56(c)(1). Rule 56 mandates entry of summary judgment "against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).

In deciding whether there is a genuine issue of material fact, the evidence of the non-moving party is to be believed and all justifiable inferences must be drawn in favor of the non-moving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). However, "[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted." Id. at 248.

The moving party has the burden of proving that summary judgment is appropriate. Once the moving party makes this showing, however, the opposing party may not rest upon mere allegations or denials, but rather must, by affidavits or other means permitted...