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Cowser v. Schaub

United States District Court, E.D. Wisconsin

December 2, 2016

DEANNE SCHAUB, Respondent.



         The petitioner, Cassandra Cowser, seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254. (Docket # 1.) She alleges that her state court conviction and sentence were imposed in violation of the Constitution; specifically, she alleges that she was deprived of effective assistance of postconviction counsel. (Id. at 6.) The respondent argues that Cowser's claims are procedurally defaulted. For the reasons explained below, I agree, and the petition will be denied and dismissed.

         In April 2006, Cowser was charged with first-degree intentional homicide. After offering Cowser some crack cocaine he was smoking, the victim then expected Cowser to have sex with him in exchange for the crack cocaine. (Ct. App. Decision in 2008AP2779-CRNM, Docket # 17-4 at 2.). When Cowser told him that she was menstruating, he forced her to perform oral sex on him as he threatened her with a knife. As he began to relax, he lowered the knife, at which point Cowser grabbed the knife and the two struggled. Cowser stabbed the victim 160 times. Though he was still breathing, he went limp; Cowser panicked and wiped off her hands and the victim's mouth and hands with bleach. Afterwards she went home, disposing of the knife in a sewer and her clothes elsewhere. She then went to work. (Id.)

         Cowser initially pled not guilty to the first-degree intentional homicide charge. After Cowser's attorneys had her seen by the psychologist at the jail, Dr. Stonefield, who diagnosed Cowser with post-traumatic stress disorder (“PTSD”), Cowser's attorney appeared in court and asked that Cowser's not guilty plea be amended to not guilty by reason of mental disease or defect (“NGI”). They also requested that Dr. Pankiewicz be appointed to conduct the examination. (Id.) Dr. Pankiewicz agreed that Cowser had PTSD but he did not support an NGI plea. (Id.) Cowser's counsel informed the trial court that she had retained her own expert, Dr. Campbell, and that Cowser was in the process of being examined. (Id. at 3-4.) Dr. Campbell evaluated Cowser over the course of several days and opined that, at the time of the offense, Cowser was suffering from severe mental disease or defect and that her mental illness prevented her from being able to appreciate the wrongfulness of her actions. (Id. at 4.)

         On May 21, 2007, one of Cowser's attorneys appeared in court (without Cowser, who waived her appearance). (Id.) The judge mentioned an off-the-record discussion with Cowser's attorney and the prosecutor about Dr. Campbell's report and granted both the defense and the prosecutor time to ensure they had an opportunity to review the report. (Id. at 4-5.) Cowser states that she was told that Dr. Campbell's findings were insufficient to back up an NGI plea. (Id. at 5.) She was also told that the jail psychologist could not be used as a witness because of a “a spot on his record.” (Id.) Cowser states that she was never supplied with any of the written reports. (Id. at 5-6.)

         Cowser ultimately entered a guilty plea to a reduced charged (second degree reckless homicide), foregoing her previously-entered NGI plea. (Id. at 6; Br. in Opposition, Docket # 27 at 2.) She was sentenced to the maximum possible sentence of 20 years initial confinement and 10 years extended supervision. (Docket # 17-1.)

         Cowser was appointed postconviction and appellate counsel, who filed a no-merit report pursuant to Anders v. California, 386 U.S. 738 (1967), and Wis.Stat. Rule 809.32(1). (Ct. App. Dec. in 2008AP2779, Docket # 17-4 at 1.) Cowser responded to the no-merit report, in which she raised five issues: (1) the trial court's reliance on the unchallenged court-appointed competency evaluation; (2) her self-defense claim; (3) the trial court's imposition of an allegedly excessive sentence; (4) two allegedly new sentencing factors warranting sentence modification; and (5) trial counsel's allegedly deficient performance. (Id. at 3.) The court of appeals addressed each of Cowser's five issues and found they each lacked arguable merit. (Id. at 3-7.) The court also conducted an independent review of the record, as it was required to do under Anders, and it concluded that there were no other potentially meritorious issues. (Id.) The court of appeals affirmed the judgment of conviction. (Id.) Cowser did not file a petition for review with the Wisconsin Supreme Court. (Case History in Appeal 2008AP2779, Docket # 17-5.)

         In April 2011, Cowser filed a Wis.Stat. § 974.06 motion alleging that her trial counsel was ineffective. (Ct. App. Dec. in 2011AP1804, Docket # 17-9 at 3.) Specifically, she alleged that her counsel was ineffective in three respects: (1) failing to submit Dr. Stonefield's evaluation report to the circuit court; (2) failing to challenge Dr. Pankiewicz's report with Dr. Campbell's; and (3) advising her to withdraw her NGI plea and plead guilty. The circuit court, having concluded that Cowser's motion raised issues already litigated in the no-merit appeal, denied the motion without a hearing. It also found that, to the extent Cowser was raising new issues, those issues were procedurally barred because she had not sufficiently explained why she had not raised them in her no-merit response. Cowser then appealed. (Id.)

         On appeal, the court of appeals found that two of Cowser's arguments-the omission of Dr. Stonefield's report and the failure to use Dr. Campbell's report to challenge Dr. Pankiewicz's-were already litigated and would not be revisited. (Id. at 5.) As to Cowser's final argument that her counsel was ineffective for encouraging her to plead guilty, the court of appeals found that, to the extent the argument had not been previously raised, Cowser failed to show sufficient reason for not previously raising the argument.

         Cowser argued that the no-merit procedures had not been properly followed during her direct appeal and that this was the “sufficient reason” she had not previously raised the issue(s). (Id. at 5.) The court of appeals rejected her argument, finding that there was no claim of “obvious merit” and that, in addition, identifying an issue-even one of arguable merit-that the court of appeals did not discuss does not constitute a “sufficient reason.” (Id. (citing Allen, 328 Wis.2d 1, ¶ 83).) The defendant would need to identify something that undermined the court's confidence in the decision. (Id. (citing Allen, 328 Wis.2d 1, ¶ 83).) The court of appeals affirmed the circuit court, and Cowser filed a petition for review with the Wisconsin Supreme Court, in which she raised three claims: (1) that the circuit erred when it denied her postconviction motion on the basis that the arguments raised were raised in the her no-merit response; (2) that trial counsel provided ineffective assistance of counsel by advising her to plead guilty; and (3) the court of appeals erred when it held that she failed to adequately explain why the issues were not raised in her no-merit response. (Docket # 17-10.) The supreme court denied her petition for review. (Docket # 17-11.)


         Cowser's petition is governed by the Antiterrorism and Effective Death Penalty Act (“AEDPA”). Under AEDPA, a writ of habeas corpus may be granted if the state court decision on the merits of the petitioner's claim (1) was “contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States, ” 28 U.S.C. § 2254(d) (1); or (2) “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)(2).

         However, the respondent has argued that Cowser's petition must be denied for procedural reasons, namely that she procedurally defaulted her claims by failing to present them through an entire round of state court review. It is well-established that a federal court may not entertain a petition from a prisoner being held in state custody unless the petitioner has exhausted his state remedies. 28 U.S.C. § 2254(b)(1)(A). A claim is not considered exhausted if the petitioner “has the right under the law of the State to raise, by any available procedure, the question presented.” 28 U.S.C. § 2254(c). With some exceptions, a petition for writ of habeas corpus should be dismissed if state remedies have not been exhausted as to any one of the petitioner's federal claims. See Rhines v. Weber, 544 U.S. 269, 277-78 (2005); Cruz v. Warden of Dwight Corr. Ctr., 907 F.2d 665, 667 (7th Cir. 1990). For a constitutional claim to be fairly presented to a state court, both the operative facts and the controlling legal principles must be submitted to that court. Verdin v. O'Leary, 972 F.2d 1467, 1474 (7th Cir. 1992). Also, the petitioner must invoke one complete round of the normal appellate process, including seeking discretionary review before the state supreme court. McAtee v. Cowan, 250 F.3d 506, 508-09 (7th Cir. 2001).

         If state court remedies are no longer available because the prisoner failed to comply with the deadline for seeking state court review or for taking an appeal, those remedies are technically exhausted; however, exhaustion in this sense does not automatically entitle the habeas petitioner to litigate his or her claims in federal court. Woodford v. Ngo, 548 U.S. 81, 93 (2006). A habeas petitioner who has exhausted his state court remedies without properly asserting his federal ...

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