Cowans v. Bagley

Decision Date30 September 2008
Docket NumberNo. 1:00-cv-618.,1:00-cv-618.
Citation624 F.Supp.2d 709
PartiesJesse COWANS, Petitioner, v. Margaret BAGLEY, Warden, Respondent.
CourtU.S. District Court — Southern District of Ohio

Harry Robert Reinhart, Reinhart Law Office, Dennis Celestino Belli, Columbus, OH, for Petitioner.

Daniel R. Ranke, U.S. Attorney's Office, Michael L. Collyer, Assistant Attorney General Capital Crimes Section, Cleveland, OH, for Respondent.


EDMUND A. SARGUS, JR., District Judge.

Petitioner, a prisoner sentenced to death by the State of Ohio, has pending before this Court a habeas corpus action pursuant to 28 U.S.C. § 2254. Petitioner filed his original habeas petition on July 31, 2000 (Doc. # 5) and an amended petition on May 3, 2001 (Doc. # 15). Petitioner amended his petition again on June 12, 2002, to add a claim that he had inadvertently omitted. (Doc. # 45.) Finally, on September 9, 2005, this Court issued an Opinion and Order permitting petitioner to amend his petition to add recently-exhausted claims of ineffective assistance of appellate counsel. (Doc. # 72.)

On September 30, 2002, this Court issued an Opinion and Order granting in part and denying in part respondent's motion to dismiss procedurally defaulted claims. (Doc. # 49.) Specifically, this Court dismissed as procedurally defaulted grounds 2(c), 2(f), 2(g), 6, and 11. Subsequently, in a March 26, 2003 opinion and order denying petitioner's motion to conduct additional discovery, this Court granted respondent's motion to dismiss ground 10 as procedurally defaulted. (Doc. # 56.) On September 12, 2006, the Court issued an Opinion and Order granting petitioner's motion for reconsideration of its procedural default order as to grounds 2(c), 2(f), 2(g), and 6, specifically to consider whether recently-exhausted claims of appellate counsel ineffectiveness constitute cause and prejudice to excuse the default of those claims. (Doc. # 84.) Thus, the Court will revisit those procedural default determinations in the instant order.

The Court permitted limited factual development, first issuing an order on April 18, 2001 granting petitioner's motion for funds under the criminal justice act to conduct DNA testing, (Doc. # 14), and then issuing an order on December 6, 2001 granting petitioner's motion for additional funds to complete the DNA testing (Doc. # 29). Petitioner filed a report summarizing the results of the testing on April 2, 2002. (Doc. # 37.) On September 30, 2002, this Court issued an Opinion and Order granting petitioner's motion to conduct certain discovery. (Doc. # 48.) On March 26, 2003, however, the Court issued an Opinion and Order denying petitioner's request to conduct additional discovery. (Doc. # 56.) And on September 26, 2003, the Court issued an Opinion and Order denying petitioner's motion for an evidentiary hearing. (Doc. # 60.)

This case is now ripe for a final decision on the merits of those claims that are properly before the Court: grounds 1, 2(a), 2(b), 2(d), 2(e), 2(h), 2(I), 2(j), 2(k), 3, 4, 5, 7, 8, 9, 12, 13, and 14. Additionally, as noted above, the Court will revisit its procedural default determinations as to grounds 2(c), 2(f), 2(g), and 6.

I. Factual and Procedural History

The details of this capital murder and aggravated robbery are set forth in numerous state court opinions, including the Ohio Supreme Court's published opinion in State v. Cowans, 87 Ohio St.3d 68, 717 N.E.2d 298 (1999):

Jessie J. Cowans, appellant, was convicted of the aggravated murder of Clara Swart and sentenced to death.

Mrs. Swart, a sixty-nine-year-old widow, lived alone in a rural section of Clermont County. One day in July 1996, when her son, Timothy, was taking some items to the side of the road to be picked up as trash, Cowans drove up and asked if he could take a glider-type swing that Timothy had placed by the road. Timothy agreed and helped him load the swing onto his truck.

On Wednesday, August 28, 1996, Mrs. Swart's neighbor Mildred Kilgore went to Mrs. Swart's house. Kilgore found Mrs. Swart standing outside talking to a man who looked like Cowans. When Kilgore approached, Mrs. Swart told the man that she was leaving with her friend, and he left. After he had gone, Mrs. Swart and Kilgore went inside, and Mrs. Swart said, "Oh, I'm scared. * * * He made me so nervous. * * * He scared me so bad." Kilgore asked, "Who was it, Clara?" Mrs. Swart replied, "It was the man who came and got the chair [sic] off the garbage a few weeks ago."

At 8:00 a.m. on Thursday, August 29, a Clermont County Senior Services bus arrived at Mrs. Swart's house to pick her up. When Mrs. Swart did not respond to the sound of the driver's horn, the driver went to the door and knocked. She heard some noise inside the house, but Mrs. Swart did not answer the door; nor did Mrs. Swart answer her telephone when the Senior Services office called. Mrs. Swart's son came to visit her later in the day and found her body.

Mrs. Swart had been strangled with a purse strap, which was still around her neck. An electrical cord had been tied around her neck and to the handle of the refrigerator, and her hands had been tied with a telephone cord. She was still wearing her wedding ring and earrings. Officers found a palm print on a plastic bag covering a blender in Mrs. Swart's kitchen.

After talking to Kilgore, sheriff's investigators began to consider Cowans a suspect. Investigators discovered that Cowans was on parole, so they called his parole officer, Sandra Higgins, to help them obtain Cowans's fingerprints.

The investigators believed that they lacked enough evidence to obtain a search warrant for Cowans's house. However, Higgins decided to search it herself in order to determine whether Cowans had violated his parole. Two deputies helped her. Once of the deputies testified that he found an Emmett Kelly clown figurine in the closet of Cowans's bedroom. The figurine was later identified as belonging to Mrs. Swart. Subsequently, the deputies obtained Mrs. Cowans's permission to continue searching. In the closet, they found a small wooden car.

While searching a wooded area behind Cowans's house, a deputy found other items taken from Mrs. Swart's house, including a wooden jewelry box. The little wooden car found in Cowans's house appeared to have been broken off the lid of that box.

On the afternoon of September 2, Deputy Sheriff Jim DeCamp used a T-shirt belonging to Cowans to scent a bloodhound at Mrs. Swart's residence. Once scented, the dog appeared to track the scent from Mrs. Swart's backyard, over a fence, and for a short distance into a wooded area. The dog then lost the scent. After being rescented with the shirt, the dog appeared to follow it to the vicinity of a fallen tree where the handler was told that other deputies had found Mrs. Swart's personal property. At this location, which was near the back end of Cowans's property line, the dog was pulled off the scent. Again the dog was rescented and it continued to Cowans's Chevrolet Blazer, which was parked at his house.

Mamie Trammel, one of Cowans's neighbors, testified that she had a conversation with Cowans two days after the murder. Trammel testified that when she asked Cowans if he had heard about the murder, he said, "Yeah, isn't that terrible * * * to hang a lady by the refrigerator with her hands behind her back." This detail had not been made public by the sheriff's department.

Cowans was arrested on September 2. Deputy Sheriff Robert Evans drove him to the Clermont County Jail on a route that led past Mrs. Swart's house. Evans slowed down as he passed the house, as he later testified, "just to see what Mr. Cowans would do." Staring at the house, Cowans began to talk about the case. He complained that, as an "ex-con," he was being "singled out." Evans testified that Cowans said he had heard on the news that Mrs. Swart "was hung" and had later heard that she was strangled—information that had not been made public. Cowans also said "that he had been there [at Mrs. Swart's house] on one occasion * * * for the purpose of picking up a swing."

While confined in jail, Cowans discussed the charges against him with a fellow inmate, Marvin A. Napier. He told Napier at first that "he had chased some kids out of his backyard" and they "threw [some items] down on the ground. And he * * * went through some stuff and left what he didn't want and took what he did want."

Napier testified that Cowans later admitted to killing and robbing Mrs. Swart and gave details consistent with the facts of the case. For example, Napier testified that Cowans said he had found Mrs. Swart in the bathroom and "jerked [her] up off the toilet." This was consistent with the fact that investigators found urine in the toilet bowl. Napier also testified that Cowans said he had tied Mrs. Swart with the phone cord, strangled her with a purse strap, and "ransacked" the house; also, that an "old people's bus" arrived while he was there, and "[t]hey knocked on the door."

Napier further testified that Cowans said he left Mrs. Swart's house and walked home through the woods, that he went through the stolen property as he went, and that he left most of it in the woods as "junk" but brought home "[s]ome clown figurines" and some jewelry. Cowans allegedly told Napier "that he wished he'd have took the earrings and the wedding band off the lady's finger."

Cowans was indicted on four counts of aggravated murder. Count One alleged murder with prior calculation and design under R.C. 2903.01(A). Counts Two through Four alleged felony-murder under R.C. 2903.01(B). Each...

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