United States District Court, W.D. Wisconsin
COURTNEY M. COWINS, Petitioner,
GARY BOUGHTON, Respondent.
OPINION AND ORDER
D. Peterson, District Judge.
November 19, 2018, I denied petitioner Courtney M.
Cowins's petition for a writ of habeas corpus under 28
U.S.C. § 2254. Dkt. 30. Cowins challenged his
convictions for armed burglary, burglary with intent to
commit sexual assault and battery, first-degree reckless
endangerment, and four counts of first-degree sexual assault,
all as a repeater, in Dane County Case No. 2009CF247, on the
grounds that: (1) the state intentionally introduced false
testimony by a doctor who had treated the victim after her
attack; (2) the prosecutor engaged in misconduct by referring
to the doctor's false testimony in closing arguments; (3)
the two-year delay in charging and prosecuting Cowins
resulted in exculpatory evidence being destroyed; (4) trial
counsel was ineffective for numerous reasons; and (5)
appellate counsel was ineffective for failing to investigate
and raise numerous meritorious issues on appeal. I concluded
that none of Cowins's arguments had merit.
December 17, 2019, Cowins filed a motion to alter or amend
the judgment under Rule 59 of the Federal Rules of Civil
Procedure. Dkt. 34. In his Rule 59 motion, Cowins argues that
I: (1) failed to address his claim that appellate counsel was
ineffective for failing to follow proper no-merit procedures;
(2) erred in rejecting his due process claim based on the
state's two-year delay in filing criminal charges; (3)
erred in assessing prejudice resulting from the two-year
delay; (4) applied the wrong standard to his false testimony
claim; (5) misconstrued his false testimony claim; and (6)
erred in denying his false testimony claim. Cowins also
requests an evidentiary hearing.
prevail on a Rule 59(e) motion, Cowins must “clearly
establish” (1) that the court committed a manifest
error of law or fact; or (2) that newly discovered evidence
precluded entry of judgment. Blue v. Hartford Life &
Acc. Ins. Co., 698 F.3d 587, 598 (7th Cir. 2012). Cowins
does not rely on any newly discovered evidence, and he has
not met this burden to show a manifest error of law or fact.
his first argument, Cowins simply repeats the same argument
he made previously regarding his appellate counsel's
failure to consult with him and follow Wisconsin's
no-merit procedures. He has cited no new evidence or legal
authority that was not considered and addressed already in
the previous decision. For reasons explained already, the
Wisconsin Court of Appeals' adjudication of this claim
was reasonable, was not contrary to federal law, and did not
involve an unreasonable application of federal law to the
facts. Dkt. 30 at 16-17. As the court of appeals explained,
Cowins cannot succeed on a claim that appellate counsel was
ineffective because he has not identified any appealable
issue of potential merit. Id.
second and third arguments relate to his claim that the state
violated his due process rights by filing criminal charges
two years after the assault occurred. He contends that I
should not have required him to prove that the
prosecutor's delay in filing charges was intentional,
because there is a line of Seventh Circuit cases that does
not require the criminal defendant to prove that the
state's delay was intentional. Cowins is correct that the
Court of Appeals for the Seventh Circuit has discussed two
different methods by which a defendant may establish a
violation of due process by delay, see, e.g., United
States v. Koller, 956 F.2d 1408, 1415 (7th Cir. 1992)
(discussing two standards), though the court of appeals has
most recently applied the standard requiring proof that the
delay was intentional. See United States v. Wallace,
326 F.3d 881, 886 (7th Cir. 2003). But under both standards,
the criminal defendant has the burden to show “actual
and substantial prejudice from the delay.” Id.
As I explained in the November 19 decision, Cowins cannot
establish substantial prejudice caused by the delay in light
of the significant evidence presented against him at trial.
Dkt. 30 at 10. Cowins's arguments to the contrary are not
fourth, fifth, and sixth arguments relate to his claim that
the prosecution presented false testimony from the doctor who
treated the victim after she was attacked. Cowins argues that
I misconstrued his claim and applied the wrong standard when
assessing it. His arguments are not persuasive. For the
reasons explained thoroughly in the November 19 decision, the
doctor's testimony was not false and the prosecutor's
reference to the testimony was not misleading. Id.
three motions filed on January 7, 2019, Cowins raises a
seventh issue regarding jurisdiction. Dkts. 38-40. He argues
that the Wisconsin Court of Appeals and Wisconsin Supreme
Court lacked jurisdiction over his direct appeal and motions
for postconviction relief because portions of the appellate
record were not properly authenticated and certified as
required by state law. He further argues that because the
Wisconsin appellate courts did not have jurisdiction over his
appeals, this court did not have jurisdiction over his habeas
petition. But Cowins did not raise this argument as a basis
for federal habeas relief in his petition or in his previous
briefs supporting his petition, so it is too late to raise it
now. Rule 59(e) allows movants to challenge a judgment based
on manifest errors of law or fact or on newly discovered
evidence, but the rule does not allow parties to present new
legal theories. See Divane v. Krull Elec. Co., 194
F.3d 845, 850 (7th Cir. 1999).
I were to consider Cowins's jurisdictional argument, I
would conclude that it cannot provide a basis for habeas
relief because it presents a question solely of Wisconsin
law. Cowins argues that Wisconsin courts cannot exercise
jurisdiction over a direct appeal or postconviction motion
unless the relevant transcripts have been authenticated and
certified properly. But Cowins cites only Wisconsin cases and
state law regulations and does not explain how this claim
would implicate any constitutional right or invalidate his
conviction. See Arnold v. Dittmann, 901 F.3d 830,
835 (7th Cir. 2018) (“[E]rrors of state law are not
cognizable on habeas review.”); U.S. ex rel. Bell
v. Mathy, No. 08 C 5622, 2009 WL 90078, at *2 (N.D. Ill.
Jan. 14, 2009) (habeas petitioner's challenges to state
court's jurisdiction “pose questions of Illinois
state law, rather than the federal Constitutional issues that
are cognizable in Section 2254 proceedings”).
Cowins contends that he is entitled to an evidentiary hearing
on his petition and motions for reconsideration. But an
evidentiary hearing is not warranted because Cowins has
failed to identify any violation of his constitutional
rights. For the same reason, I will not grant Cowins a
certificate of appealability from this order. See 28
U.S.C. § 2253(c)(2) (certificate of appealability will
not issue unless petitioner makes “a substantial
showing of the denial of a constitutional right”).
IT IS ORDERED that:
1. Petitioner Courtney M. Cowins's motion to amend the
address listed in his motion to alter or amend the judgment,
Dkt. 37, is GRANTED.
2. Petitioner's motions to alter or amend the judgment,
Dkt. 34 and Dkt. 40, motion to stay, Dkt. 38, and motion to
amend his motion for reconsideration to add a jurisdictional
claim, Dkt. 39, are DENIED.
3. Petitioner is DENIED a certificate of appealability. He
may seek a certificate from the court of appeals under ...