JAMES K. SINGLETON, JR., Senior District Judge.
Robert Lindsay Cowan, a state prisoner represented by counsel, filed a Petition for a Writ of Habeas Corpus with this Court pursuant to 28 U.S.C. § 2254. Cowan is in the custody of the California Department of Corrections and Rehabilitation and incarcerated at the California Institution for Men. Respondent has answered, and Cowan has replied.
On June 23, 2010, Cowan was charged with nine separate counts of committing lewd acts upon and with the body of two children under the age of 14. The information additionally alleged that Cowan had committed the charged crimes against two or more victims. Cowan pleaded not guilty to the charges and denied the allegation. On direct appeal of Cowan's conviction, the California Court of Appeal laid out the following facts underlying the charges against Cowan, the procedural history of the case, and the evidence presented at trial:
People v. Cowan, No. C066033, 2013 WL 3213332, at *1-2 (Cal. Ct. App. Jun. 26, 2013).
At the conclusion of trial, the jury found Cowan guilty of Counts 1-5 and found the allegation of two or more victims to be true. The jury was unable to reach unanimous verdicts as to Counts 6-9 and, upon the People's motion, the trial court dismissed those counts. Cowan was subsequently sentenced to an aggregate term of 30 years to life imprisonment, consisting of two consecutive terms of 15 years to life imprisonment on Counts 1 and 5 and concurrent terms on Counts 2-4.
Through counsel, Cowan appealed his conviction, arguing that: 1) the pretrial court erred in denying, after conducting an in camera review, Cowan's motion for third party discovery regarding the victims' paternal grandfather's 2003 conviction of a lewd or lascivious act; and 2) the trial court compounded the error by refusing to re-review the records. On June 26, 2013, the Court of Appeal issued a reasoned, unpublished opinion unanimously affirming the judgment against Cowan in its entirety. Cowan, 2013 WL 3213332 at *3. Cowan filed in the California Supreme Court a counseled petition requesting review of the claims he unsuccessfully raised before the Court of Appeals, which was summarily denied on September 11, 2013.
Cowan then filed in the California Supreme Court a counseled petition for a writ of habeas corpus. In that petition, Cowan alleged that counsel was ineffective for failing to: 1) move to dismiss the information based on the unconstitutional way in which Cowan's incriminating admissions were obtained; 2) move to suppress the unlawfully-obtained admissions; 3) move to dismiss the information based on Cowan's warrantless arrest; and 4) move to suppress Cowan's admissions based on his subsequent warrantless arrest. In support of his Petition, Cowan additionally submitted the declaration of a theologian who opined that statements Cowan made at a meeting requested and secretly recorded by the victims' parents with the assistance of law enforcement were involuntary due to his religious beliefs. Cowan additionally submitted the declarations of two court runners who indicated that there were no outstanding warrants for Cowan at the time of his arrest. The Supreme Court denied Cowan's habeas petition without comment on April 1, 2015.
Cowan timely filed a counseled Petition for a Writ of Habeas Corpus in this Court on June 12, 2015. Docket No. 1 ("Petition"); see 28 U.S.C. § 2244(d)(1)(A).
In his counseled Petition before this Court, Cowan raises the four ineffective assistance claims that were silently denied by the California Supreme Court on state habeas review. Specifically, Cowan argues that counsel was ineffective for failing to: 1) move to dismiss the information based on the unconstitutional way in which Cowan's incriminating admissions were obtained; 2) move to suppress the unlawfully-obtained admissions; 3) move to dismiss the information based on Cowan's warrantless arrest; and 4) move to suppress Cowan's admissions based on his subsequent warrantless arrest.
Under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), 28 U.S.C. § 2254(d), this Court cannot grant relief unless the decision of the state court was "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States," § 2254(d)(1), or "was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding," § 2254(d)(2). A state-court decision is contrary to federal law if the state court applies a rule that contradicts controlling Supreme Court authority or "if the state court confronts a set of facts that are materially indistinguishable from a decision" of the Supreme Court, but nevertheless arrives at a different result. Williams v. Taylor, 529 U.S. 362, 406 (2000).
The Supreme Court has explained that "clearly established Federal law" in § 2254(d)(1) "refers to the holdings, as opposed to the dicta, of [the Supreme Court] as of the time of the relevant state-court decision." Id. at 412. The holding must also be intended to be binding upon the states; that is, the decision must be based upon constitutional grounds, not on the supervisory power of the Supreme Court over federal courts. Early v. Packer, 537 U.S. 3, 10 (2002). Where holdings of the Supreme Court regarding the issue presented on habeas review are lacking, "it cannot be said that the state court `unreasonabl[y] appli[ed] clearly established Federal law.'" Carey v. Musladin, 549 U.S. 70, 77 (2006) (citation omitted).
To the extent that the Petition raises issues of the proper application of state law, they are beyond the purview of this Court in a federal habeas proceeding. See Swarthout v. Cooke, 131 S.Ct. 859, 863 (2011) (per curiam) (holding that it is of no federal concern whether state law was correctly applied). It is a fundamental precept of dual federalism that the states possess primary authority for defining and enforcing the criminal law. See, e.g., Estelle v. McGuire, 502 U.S. 62, 67-68 (1991) (a federal habeas court cannot reexamine a state court's interpretation and application of state law); Walton v. Arizona, 497 U.S. 639, 653 (1990) (presuming that the state court knew and correctly applied state law), overruled on other grounds by Ring v. Arizona, 536 U.S. 584 (2002).
In applying these standards on habeas review, this Court reviews the "last reasoned decision" by the state court. See Robinson v. Ignacio, 360 F.3d 1044, 1055 (9th Cir. 2004) (citing Avila v. Galaza, 297 F.3d 911, 918 (9th Cir. 2002)). A summary denial is an adjudication on the merits and entitled to deference. Harrington v. Richter, 562 U.S. 86, 99 (2011). Under the AEDPA, the state court's findings of fact are presumed to be correct unless the petitioner rebuts this presumption by clear and convincing evidence. 28 U.S.C. § 2254(e)(1); Miller-El v. Cockrell, 537 U.S. 322, 340 (2003).
Cowan alleges that counsel was ineffective for failing to move to dismiss the indictment and suppress his admissions because he was unlawfully arrested without a search warrant and his incriminating admissions were unconstitutionally obtained at a meeting that was secretly recorded by the victims' parents. To demonstrate ineffective assistance of counsel under Strickland v. Washington, a defendant must show both that counsel's performance was deficient and that the deficient performance prejudiced his defense. 466 U.S. 668, 687 (1984). A deficient performance is one in which "counsel made errors so serious that counsel was not functioning as the `counsel' guaranteed by the Sixth Amendment." Id.
The Supreme Court has explained that, if there is a reasonable probability that the outcome might have been different as a result of a legal error, the defendant has established prejudice and is entitled to relief. Lafler v. Cooper, 132 S.Ct. 1376, 1385-86 (2012); Glover v. United States, 531 U.S. 198, 203-04 (2001); Williams, 529 U.S. at 393-95. Where a habeas petition governed by AEDPA alleges ineffective assistance of counsel, the Strickland prejudice standard is applied and federal courts do not engage in a separate analysis applying the Brecht harmlessness standard. Avila v. Galaza, 297 F.3d 911, 918, n.7 (9th Cir. 2002); see also Musalin v. Lamarque, 555 F.3d 830, 834 (9th Cir. 2009). Under this rubric, in reviewing ineffective assistance of counsel claims in a federal habeas proceeding:
Knowles v. Mirzayance, 556 U.S. 111, 123 (2009) (citations omitted); see also Runningeagle v. Ryan, 686 F.3d 758, 775 (9th Cir. 2012).
Thus, Cowan must show that defense counsel's representation was not within the range of competence demanded of attorneys in criminal cases, and there is a reasonable probability that, but for counsel's ineffectiveness, the result would have been different. See Hill v. Lockhart, 474 U.S. 52, 57 (1985). An ineffective assistance of counsel claim should be denied if the petitioner fails to make a sufficient showing under either of the Strickland prongs. See Strickland, 466 U.S. at 697 (courts may consider either prong of the test first and need not address both prongs if the defendant fails on one).
Cowan first argues that trial counsel was ineffective for failing to move to dismiss the indictment and suppress Cowan's recorded admissions because of the unconstitutional manner in which those admissions were obtained. The record indicates that, on December 1, 2009, the parents of the victims conducted a pretext conversation with Cowan at their home, which was recorded by law enforcement while a detective was in the parents' bedroom behind a closed door. During the conversation, the father informed Cowan about the allegations of his daughters that, on the evening at issue, Cowan had put his hand under their underwear and touched and rubbed their intimate parts. Cowan recalled that R.G. was sitting on his "knee" and that K.G. "came over" and he "grabbed her by the front of her britches." He admitted that, at one point, his hand or "thumb" inadvertently "went down the front of" R.G.'s and/or K.G.'s "pants," and he "rubbed her tummy." He had no recollection "of ever touching" K.G.'s or R.G.'s intimate parts but admitted that "evidently" his "hand went down there." He suggested that he had fallen asleep. Cowan further agreed that he did not think the girls "would make this up" and stated that whatever happened that evening was "an anomaly." Cowan asked for forgiveness numerous times. The jury was provided with copies of a transcript of the conversation and heard an audio recording of it.
Cowan now argues that counsel was ineffective for failing to move for dismissal under California Penal Code § 995 in light of the unconstitutional and deceptive nature in which his incriminating admissions were obtained. According to Cowan, his statements should not be deemed voluntary because the parents arranged the conversation as a "Matthew 18 meeting,"
Cowan, however, provides no grounds to believe that a motion to dismiss the indictment would have been successful. Penal Code § 995(a)(1)(B) requires a trial court to set aside an information, on motion of the defendant, where "the defendant has been indicted without reasonable or probable cause." Here, however, even without the incriminating statements made during that meeting, there existed sufficient probable cause to support the indictment based on the interviews of the victims, which were detailed and consistent and tended to corroborate each other. Counsel thus cannot be faulted for failing to file a meritless motion. See Rupe v. Wood, 93 F.3d 1434, 1444-45 (9th Cir. 1996) (defense counsel's failure to raise a meritless argument or to take a futile action does not constitute ineffective assistance of counsel).
Nor does Cowan establish that counsel was ineffective for not moving to suppress the statements he made during the meeting with the victims' parents.
Likewise, although Cowan suggests that his statements were involuntary and thus inadmissible, that assertion is not supported by the transcript, which is devoid of any coercive police misconduct that could be the basis for a due process claim. See Colorado v. Connelly, 479 U.S. 157, 164 (1986) ("Absent police conduct causally related to the confession, there is simply no basis for concluding that any state actor has deprived a criminal defendant of due process of law."); McElvain v. Lewis, 283 F.Supp.2d 1104, 1123-24 (C.D. Cal. 2003) (rejecting claim that counsel was deficient for failing to move to suppress secretly-recorded audiotape of conversation between petitioner and the victim on the ground it was coerced and involuntary). Further, because Cowan was not in custody at the time of the conversation, nor was he being interrogated, the conversation cannot be classified as a custodial interrogation requiring Miranda warnings, even if the victims' parents could be deemed government agents. See Miranda v. Arizona, 384 U.S. 436, 469-70 (1966); Illinois v. Perkins, 496 U.S. 292, 296-97 (1990) (police use of informants or uncover agents to question a suspect does not implicate Miranda or violate the Fifth Amendment). Consequently, Cowan's argument that counsel should have brought a motion to suppress is not supported by the record nor by any facts alleged by Cowan.
Cowan additionally faults counsel for failing to move to dismiss the indictment and suppress his incriminating statements because Cowan was arrested without a valid arrest warrant. But the record indicates that law enforcement was acting pursuant to a warrant when Cowan was taken into custody. In his state habeas petition, Cowan attached email correspondence from the trial prosecutor informing current counsel of the warrant number and issuance date one day prior to Cowan's arrest.
In any event, even if Cowan's arrest was unlawful, he cannot show that his unlawful arrest would have provided a valid basis to dismiss the indictment against him.
At Docket No. 23, counsel for Cowan submitted a letter motion requesting the expedited determination of Cowan's Petition due to his age and health. The letter may request that the Court be compelled to render a decision in his case. Title 28 U.S.C. § 1361, the Mandamus Act, provides that "[t]he district courts shall have original jurisdiction of any action in the nature of mandamus to compel an officer or employee of the United States or any agency thereof to perform a duty owed to the plaintiff." But because this Court has now considered and rejected Cowan's Petition on the merits, such request is moot.
Cowan is not entitled to relief on any ground raised in his Petition.
The Clerk of the Court is to enter judgment accordingly.
