Cowans v. Bagley

• Decision Date: 24 May 2011
• Docket Number: No. 08–4393.,08–4393.
• Citation: 639 F.3d 241
• Parties: Jesse J. COWANS, Petitioner–Appellant,v.Margaret A. BAGLEY, Warden, Respondent–Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

639 F.3d 241

Jesse J. COWANS, Petitioner–Appellant,

v.Margaret A. BAGLEY, Warden, Respondent–Appellee.

No. 08–4393.

United States Court of Appeals, Sixth Circuit.

Argued: March 9, 2011.Decided and Filed: April 21, 2011.Rehearing and Rehearing En Banc Denied May 24, 2011.*

ARGUED: Vicki Ruth Adams Werneke, Federal Public Defender's Office, Cleveland, Ohio, for Appellant. Brenda S. Leikala, Office of the Ohio Attorney General, Columbus, Ohio, for Appellee. ON BRIEF: Vicki Ruth Adams Werneke, Jillian S. Davis, Federal Public Defender's Office, Cleveland, Ohio, for Appellant. Brenda S. Leikala, Office of the Ohio Attorney General, Columbus, Ohio, for Appellee.Before: MERRITT, SUTTON and McKEAGUE, Circuit Judges.SUTTON, J., delivered the opinion of the court, in which MERRITT and McKEAGUE, JJ., joined. MERRITT, J. (p. 253), delivered a separate concurring opinion.

OPINION

SUTTON, Circuit Judge.

An Ohio jury convicted Jesse Cowans of the murder of Clara Swart, and the court (consistent with the jury's recommendation) sentenced him to death. The Ohio courts upheld his conviction and sentence on direct and collateral review. Cowans filed a federal habeas petition, which the district court denied. Because federal courts in habeas proceedings must defer to the state courts' reasonable adjudications of federal constitutional claims and because the state courts' resolution of Cowans' claims meets this standard, we affirm.

I.

On August 29, 1996, a bus arrived at the home of Clara Swart to take her to the Senior Citizen Center. The driver honked, knocked on the door and directed someone to call the Swart residence, but Swart never answered. That evening, when Swart's son went to her house for dinner, he found her dead with a cord tied around her neck and her hands bound.

Several pieces of evidence implicated Jesse Cowans. The day before the murder, Swart's neighbor, Mildred Kilgore, saw a man talking to Swart. After the man left, Swart told Kilgore that she was scared of the man, whom she knew from a few weeks before, when he had picked up a chair from her trash. Several people identified the man as Cowans. A crime scene technician matched Cowans' palm print to one found in Swart's home. The officers scented a bloodhound with Cowans' scent starting at the back of the Swart residence, and the bloodhound took the officers to Cowans' home a few blocks away.

Cowans' parole officer, Sandra Higgins, searched Cowans' residence and found a small clown figurine that matched one missing from the Swart residence. The police obtained written consent from Cowans' wife to search the house and found a wooden car that came from the top of a jewelry box matching one of Swart's missing items. Police also searched the area outside the property and found a jewelry box, jewelry, pillow cases and an adding machine, all items missing from Swart's home, near the edge of Cowans' property.

The police arrested Cowans. While Cowans was in jail awaiting trial, he admitted to a cell-mate that he had committed the murder. The jail-house confession included several non-public details—that Cowans found Swart on the toilet, that he tied her with a phone cord, that he left earrings and a wedding band on Swart, that an “old people's bus” arrived at the house and that the bus driver knocked on the door while he was there. Appx. 758.

Before trial, Cowans openly struggled with his appointed counsel. He complained that his counsel wanted him to plead guilty, and he asked for new counsel. The court granted his request. At a later pre-trial hearing, Cowans requested a change of counsel again, complaining that his new counsel also wanted him to plead guilty. The court denied his request. Cowans eventually became so angry over this and other developments that he told the court he no longer wanted to appear at the hearing. The court granted his request and removed him from the courtroom. At Cowans' direction, his defense counsel filed a motion to withdraw. The court held a hearing, and his counsel testified that Cowans had refused to talk with them since the last hearing. The court did not grant the request.

After a trial, the jury convicted Cowans of murdering Swart. As the jury read its verdict, Cowans started swearing and challenged the jury to look him in the eye. The judge removed him from the courtroom before the foreman read the rest of the verdict.

Sentencing also had its bumps. Cowans initially asked not to be present during the mitigation hearing. When the judge removed him to watch the proceedings via closed circuit TV, Cowans disabled the TV. He also directed his counsel not to present any mitigating evidence. The court spoke with Cowans about this decision, and Cowans explained that he felt the jurors already had made up their minds. The jury recommended a death sentence, and the trial judge independently agreed to impose the sentence.

Cowans appealed his conviction and sentence, and the Ohio Supreme Court affirmed. State v. Cowans, 87 Ohio St.3d 68, 717 N.E.2d 298 (1999). The state courts denied his requests for post-conviction relief. State v. Cowans, No. CA98–10–090, 1999 WL 699870 (Ohio Ct.App. Sept. 7, 1999). Cowans asked the Ohio Supreme Court to reopen his proceedings, see Ohio App. R. 26(B), but the Court denied his request, State v. Cowans, 103 Ohio St.3d 1403, 812 N.E.2d 1286 (2004) (unpublished table order).

Cowans filed a federal habeas petition. The district court denied the petition, Cowans v. Bagley, 624 F.Supp.2d 709 (S.D.Ohio 2008), but granted him a certificate of appealability with respect to several claims, and we added one claim more.

II.

Cowans filed his petition for habeas corpus after the effective date of the Antiterrorism and Effective Death Penalty Act (AEDPA). We thus may grant a writ with respect to claims “adjudicated on the merits in State court proceedings” only if the state court adjudication “(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).

A.

Mitigating evidence at sentencing. Cowans' first argument—that the Constitution prevents a defendant from waiving his right to present mitigating evidence at a capital trial—fails because AEDPA allows federal courts to grant the writ only when state courts misapply “clearly established” federal law, id. § 2254(d)(1), and no such law exists. The Supreme Court has never held that the Eighth Amendment or any other constitutional provision requires a defendant to present mitigating evidence at the sentencing phase of a capital trial. The Court, in point of fact, has suggested otherwise. Schriro v. Landrigan, 550 U.S. 465, 127 S.Ct. 1933, 167 L.Ed.2d 836 (2007), reversed the Ninth Circuit's decision to grant an evidentiary hearing on a defendant's claim that he did not knowingly and voluntarily waive his right to present mitigating evidence at his capital sentencing hearing. The Court held that the defendant's behavior and statements indicated he did not want to present mitigating evidence, id. at 479–80, 127 S.Ct. 1933, a holding that necessarily suggests a defendant has the right not to introduce mitigating evidence.

Cowans' related argument—that he did not knowingly and intelligently waive his right to present mitigating evidence—fails for similar reasons. Schriro reversed the Ninth Circuit for granting an evidentiary hearing on a similar claim, noting that the Court has “never imposed an ‘informed and knowing’ requirement upon a defendant's decision not to introduce [mitigating] evidence.” Id. at 479, 127 S.Ct. 1933. Attempting to overcome Schriro, Cowans invokes the Ohio Supreme Court's decision in State v. Ashworth, 85 Ohio St.3d 56, 706 N.E.2d 1231 (1999), which created a list of questions for trial courts to ask capital defendants who wish to waive the presentation of mitigating evidence. A claim for relief based on state law, however, generally cannot provide grounds for federal habeas relief. 28 U.S.C. § 2254(a); Wilson v. Corcoran, ––– U.S. ––––, 131 S.Ct. 13, 16–17, 178 L.Ed.2d 276 (2010) (per curiam). Even if Ashworth meant to establish a federal constitutional rule (it is not clear), that does not help Cowans because we may grant relief based only on decisions of the Supreme Court of the United States, not the Supreme Court of Ohio. 28 U.S.C. § 2254(d)(1).

AEDPA's requirement that we defer to state courts' factual determinations also undermines this claim. See id. §§ 2254(d)(2), (e)(1). The Ohio Supreme Court held that “there is nothing to indicate that Cowans did not knowingly and voluntarily relinquish his right to present mitigating evidence,” Cowans, 717 N.E.2d at 314, and there is nothing unreasonable about that determination. Cowans told his attorneys that he did not want to present any mitigating evidence and instructed potential witnesses not to testify. In open court, the sentencing judge verified that Cowans did not want to present any mitigating evidence and probed Cowans' understanding of the consequences of that decision. The record supports this finding.

B.

Competency examination. Also unavailing is Cowans' challenge to the district court's decision not to order him to undergo a competency examination. If before or during trial “sufficient doubt” arises about a defendant's competence—“the capacity to understand the nature and object of the proceedings against him, to consult with counsel, and to assist in preparing his defense”—the trial court should order a competency hearing. Drope v. Missouri, 420 U.S. 162, 171, 180, 95 S.Ct. 896, 43 L.Ed.2d 103 (1975). “There are, of course, no fixed or immutable signs” of incompetence, the standard is a high one, and the relevant factors—“evidence of a defendant's irrational behavior, his...