Cowherd v. Million , 260 F. App'x 781 ( 2008 )


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  •                   NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
    File Name: 08a0051n.06
    Filed: January 15, 2008
    No. 06-5610
    UNITED STATES COURT OF APPEALS
    FOR THE SIXTH CIRCUIT
    JOHNNY COWHERD,                                     )
    )
    Petitioner-Appellant,                       )
    )
    v.                                                  )   ON APPEAL FROM THE UNITED
    )   STATES DISTRICT COURT FOR THE
    GEORGE MILLION,                                     )   EASTERN DISTRICT OF KENTUCKY
    )
    Respondent-Appellee.                        )
    Before: DAUGHTREY and GILMAN, Circuit Judges; EDMUNDS,* District Judge.
    PER CURIAM. The petitioner, Johnny Cowherd, is an inmate in the Kentucky prison
    system, following his conviction in state court on two counts of rape, four counts of
    sodomy, and one count of second-degree burglary. Faced with a resulting sentence of 104
    years, he filed this action in federal district court, seeking issuance a writ of habeas corpus.
    In his habeas petition, Cowherd contended that the lengthy sentence was
    unconstitutionally disproportionate to the crimes he committed, that he was improperly
    subjected to multiple convictions and multiple punishments for the same offense, and that
    his trial attorney provided him with ineffective assistance of counsel. The district court
    *
    The H on. Nancy G. Edm unds, United States District Judge for the Eastern District of Michigan,
    sitting by designation.
    No. 06-5610
    Cowherd v. Million
    denied relief, and the petitioner now appeals that order. For the reasons set out below, we
    affirm.
    I. FACTUAL AND PROCEDURAL BACKGROUND
    The appellate record filed in this case does not include a copy of the transcript from
    the petitioner’s trial in state court. According to the brief that Cowherd filed in his direct
    appeal to Kentucky’s highest state court, however, the following facts were established at
    trial:
    [Cowherd] came to stay with [Edna Galbreath and her boyfriend, Jeff,] six or
    seven times. . . . On April 6th[, 1993, while Jeff was in jail], after Galbreath
    had put her son[, DeAngelo,] in bed, [Cowherd] allegedly grabbed her from
    behind and put a box cutter to her throat. When she asked what he was
    doing, [Cowherd] allegedly replied, “Bitch, shut up.” When she asked again,
    he allegedly replied, “Bitch, I will kill you and DeAngelo.” He then threw her
    on the bed and tied her hands together with electrical cord he had cut off her
    curling iron. He next took off her pants and panties and cut off her shirt with
    the boxcutter. He tore off her brassiere. He then began to have sex with
    her. She tried to fight him off with her feet, but he cut the cord off a radio
    and tied her feet together. Then, according to Galbreath, the appellant rolled
    her over and put his penis in her rectum. He then put his penis in her mouth.
    Leaving her tied up in the bed, [Cowherd] went into the kitchen and cooked
    a hamburger. He then got money out of her purse and left the apartment.
    Before she could get loose, he returned. By then she had gotten her hands
    loose. She put her hands behind her back, but he saw that her hands were
    loose. He retied them with cord he cut off the fan. She then saw that
    [Cowherd] had bought some cocaine with her money. He smoked the
    cocaine. He blew the smoke into her face and tried to get her to inhale it.
    He then left the room and ate some potted meat. When he returned, he “did
    it all over again.” He kept saying, “Bitch, you better make me feel good. You
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    better make me come.” [Cowherd] also kept saying, “Jeff thinks he’s got this.
    Jeff thinks he’s got that.” According to Galbreath, [Cowherd] then had
    vaginal and rectal intercourse with her. He then put his penis in her mouth.
    He told her to “lick his asshole and then his balls.” He then told her to suck
    his penis again. Galbreath felt something coming out of her and saw that it
    was blood. She thought she was having a miscarriage. [Cowherd] saw the
    blood, but it didn’t stop him.
    [Cowherd] told Galbreath to go to sleep. He put on Jeff’s sweatpants and
    began to walk around. He then got into bed beside her and went to sleep
    with the boxcutter in his hand.
    Eventually, Galbreath escaped with DeAngelo from her own apartment and
    appeared, crying, at the door of a neighbor who contacted the police. At that time, the
    neighbor noticed that Galbreath’s wrists were swollen and that “her mouth was ‘swollen up
    real bad’ from being gagged.” When the police arrived at the neighbor’s apartment, they
    “found [the] victim crying on the sofa,” claiming to have been raped by Cowherd. The
    petitioner was subsequently apprehended by the police as he walked out of Galbreath’s
    apartment, and an examination of the alleged crime scene revealed “cut wires and chairs
    in front of [the] door” and a boxcutter “in the bed under a pillow.”
    Additional trial testimony was offered by Dr. Anita Rogers, the emergency room
    physician who examined Galbreath based upon the victim’s report that she had been
    raped. In his brief filed in the state supreme court, Cowherd summarized her testimony as
    follows:
    According to Rogers, Galbreath had no bruises on her face or abdomen.
    She did see remnants of tape on Galbreath’s left cheek. She saw no bruises
    on Galbreath’s abdomen or back. She did observe abrasions and bruises
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    on Galbreath’s ankles and wrists. According to Rogers, Galbreath had
    moderate swelling of her external genitalia. Their [sic] was no swelling of
    Galbreath’s vagina. Sperm were present. There was a 1 centimeter
    laceration at the 6:00 o’clock area of Galbreath’s rectum.
    Cowherd testified on his own behalf and admitted to engaging in anal, oral, and vaginal sex
    with Galbreath. The petitioner insisted, however, that all such acts were consensual and
    that Galbreath was tied with cords only because the two adults agreed “to have sex with
    bondage.”
    The jury obviously credited the testimony of Galbreath and prosecution witnesses
    because it returned guilty verdicts on all counts. In accord with Kentucky practice, the
    jurors then offered their recommendation that the petitioner be sentenced to 16 years in
    prison on each of the two rapes (vaginal intercourse) and 18 years in prison on each of the
    four sodomy charges (anal and oral sex). They further recommended that all such
    sentences be served concurrently, yielding an effective prison sentence of 18 years. The
    trial judge disregarded that recommendation, however, and ordered the six sentences for
    sexual offenses to be served consecutively, resulting in a prison term of 104 years.
    Cowherd’s attempts to overturn his convictions and sentence on both direct appeal
    and through state post-conviction proceedings were unsuccessful, leading him to file this
    habeas action in federal district court. Initially, the district court dismissed that petition as
    untimely. In so ruling, the court recognized that the federal filing occurred within one year
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    of the dismissal of Cowherd’s second state post-conviction petition. However, the court
    held that because the state-court action had not included a federal constitutional claim, the
    statute-of-limitations period created by the Antiterrorism and Effective Death Penalty Act
    of 1996 (AEDPA), Pub. L. No. 104-132, 110 Stat. 1214 (1996), was not tolled during the
    pendency of the state post-conviction proceedings. A panel of this court affirmed that
    dismissal. See Cowherd v. Million, No. 02-5499, 
    2003 WL 22114021
    (6th Cir. Sept. 10,
    2003). Subsequently, however, the Sixth Circuit, sitting en banc, vacated the panel
    decision, granted rehearing, unanimously overruled the prior circuit precedent upon which
    the original panel opinion had been based, and remanded the matter to the district court
    for whatever proceedings were necessary in order to render a decision on the merits of
    Cowherd’s habeas corpus petition.
    See Cowherd v. Million, 
    380 F.3d 909
    (6th Cir. 2004).
    Upon that remand, the matter was referred to a magistrate judge who issued a
    report and recommendation suggesting that the 104-year prison sentence was not
    constitutionally disproportionate to the crimes committed, that the multiple convictions did
    not contravene double jeopardy principles, and that Cowherd’s trial attorney did not provide
    him with ineffective assistance of counsel. The district judge adopted the report and
    recommendation in its entirety and denied the habeas corpus petition.
    II. DISCUSSION
    A. Standard of Review
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    Cowherd filed his petition for issuance of the writ of habeas corpus on June 11,
    2001, well after the April 24, 1996, effective date of AEDPA. Consequently, the provisions
    of that act govern the resolution of this dispute. See Lindh v. Murphy, 
    521 U.S. 320
    , 336
    (1997); Greer v. Mitchell, 
    264 F.3d 663
    , 671 (6th Cir. 2001). Pursuant to the provisions of
    AEDPA, a federal court may not grant the writ unless the state court adjudication on the
    merits either:
    (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 upon an unreasonable
    determination of the facts in light of the evidence presented in the State court
    proceeding.
    28 U.S.C. § 2254(d).
    As explained by the United States Supreme Court in Williams v. Taylor, 
    529 U.S. 362
    , 412-13 (2000):
    Under the “contrary to” clause, a federal habeas court may grant the writ if
    the state court arrives at a conclusion opposite to that reached by this Court
    on a question of law or if the state court decides a case differently than this
    Court has on a set of materially indistinguishable facts. Under the
    “unreasonable application” clause, a federal habeas court may grant the writ
    if the state court identifies the correct governing legal principle from this
    Court’s decisions but unreasonably applies that principle to the facts of the
    prisoner’s case.
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    In deciding whether a state court ruling involved an “unreasonable application” of federal
    law, a habeas court does not focus merely upon whether the state court decision was
    erroneous or incorrect; rather, a federal court may issue a writ of habeas corpus only if the
    state court’s application of clearly-established federal law was objectively unreasonable.
    See 
    id. at 409-11.
    Furthermore, “[t]his court reviews a district court’s legal conclusions in
    a habeas proceeding de novo and its factual findings for clear error.” 
    Greer, 264 F.3d at 671
    (citing Lucas v. O’Dea, 
    179 F.3d 412
    , 416 (6th Cir. 1999)).
    B. Constitutionality of 104-Year Sentence
    Cowherd asserts that the 104-year prison sentence imposed upon him is so grossly
    disproportionate to the crimes he committed that it violates the proscription of the Eighth
    Amendment to the United States Constitution against cruel and unusual punishment.
    Specifically, he argues that the jury recommended a sentence of only 18 years and, thus,
    the state trial court’s decision to run his six sentences consecutively so as to result in a
    sentence almost six times as long should be considered unreasonable, especially when
    viewed in relation to the sentence he could have received under the United States
    Sentencing Guidelines.
    As we noted in United States v. Marks, 
    209 F.3d 577
    , 583 (6th Cir. 2000), however,
    “[t]he Supreme Court has determined that strict proportionality between a crime and its
    punishment is not required.” (Citing Harmelin v. Michigan, 
    501 U.S. 957
    , 959-60 (1991)
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    (upholding a sentence of life without parole for possession of more than 650 grams of
    cocaine)). Instead, “[t]he Supreme Court has articulated a ‘narrow proportionality principle’
    whereby it held that only ‘extreme sentences that are grossly disproportionate to the crime
    are prohibited.’” United States v. Flowal, 
    163 F.3d 956
    , 963 (6th Cir. 1998) (quoting
    
    Harmelin, 501 U.S. at 995-97
    ). In implementing this “narrow proportionality principle,” the
    Sixth Circuit has recognized that “only an extreme disparity between crime and sentence
    offends the Eighth Amendment.” 
    Marks, 209 F.3d at 583
    .
    No such “extreme disparity” exists in this situation. The petitioner readily admits that
    the jury’s recommended sentence of 18 years for a rape or for sodomy would not be
    constitutionally suspect and falls within the applicable statutory sentencing ranges for the
    Class B felony offenses of rape in the first degree, see K.R.S. § 510.040(2), and sodomy
    in the first degree, see K.R.S. § 510.070(2). See also K.R.S. § 532.020(1)(c) (setting the
    penalty for Class B felonies at “[a]t least ten (10) but not more than twenty (20) years).”
    In this case, Cowherd committed six separate acts that each constituted a prohibited
    sexual offense. See, e.g., Van Dyke v. Commonwealth, 
    581 S.W.2d 563
    , 564 (Ky. 1979)
    (Kentucky legislature “intended to punish each separate act of rape or sodomy” where
    “evidence clearly discloses . . . three distinct offenses [of] rape, sodomy and a second rape
    when [the defendant] penetrated [the victim’s] vagina to accomplish the first act of
    intercourse, penetrated her mouth to accomplish the act of sodomy, and thereafter
    penetrated her vagina to accomplish the second act of intercourse”). Unlike a situation in
    which one crime (for example, a rape) occurs during the pendency of another (for example,
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    a burglary), Cowherd serially committed the six violent offenses, even taking time after the
    commission of three of the offenses to cook and eat a meal before resuming his criminal
    acts. Moreover, each of the offenses was accompanied by physical restraint of the victim
    and by the threat of imminent use of force.
    Had Cowherd imposed himself sexually upon the victim only briefly, only once, and
    under different circumstances before ceasing his violent, criminal activities, the lengthy,
    104-year sentence might have been more difficult to justify. However, because the
    petitioner continued to restrain the victim by binding her hands and legs throughout the
    ordeal, because Cowherd maintained his dominant position in the encounter through the
    continued threat of deadly force, and because he refused to avail himself of the opportunity
    to end the assaults, but instead engaged in repeated prohibited acts, the state court
    determination that the 104-year prison sentence did not create “an extreme disparity
    between crime and sentence” was neither contrary to nor an unreasonable application of
    clearly established federal law as determined by the United States Supreme Court.1
    In his appellate brief, Cowherd also intimates that the lengthy prison term imposed
    upon him must be considered disproportionate to the crimes committed because, had he
    been punished under the federal sentencing guidelines, his incarceration would likely have
    lasted only 188 to 210 months. The Supreme Court has not, however, ever held or
    1
    Further inform ing our conclusion that the 104-year sentence does not create “an extrem e disparity
    between crim e and sentence” is the representation of the warden’s counsel at oral argum ent that Cowherd
    m ay be eligible for parole after serving 20 years of his sentence, and possibly as early as the spring of 2008.
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    suggested that state sentences and federal sentences must approximate each other in
    order to pass constitutional muster. Similarly, we recently rejected an argument that a
    federal sentence was unreasonable simply because it provided for a lengthier period of
    imprisonment than did applicable state sentencing principles. See United States v.
    Malone, 
    503 F.3d 481
    , 485-86 (6th Cir. 2007). Instead, the Malone panel joined other
    circuits in holding that the requirement in 18 U.S.C. § 3553(a)(6) that district judges
    consider unwarranted disparities in sentences refers only to disparities in sentences
    imposed upon federal defendants and not those that may exist between federal and state
    court sentences. See 
    id. at 486.
    Because of the parallel, non-intersecting nature of the
    state and federal criminal justice systems and sentencing frameworks, the petitioner is not
    entitled to relief based on this argument.
    C. Double Jeopardy Considerations
    In pertinent part, the Fifth Amendment to the United States Constitution provides
    that no person shall “be subject for the same offence [sic] to be twice put in jeopardy of life
    or limb.” Petitioner Cowherd now contends, however, that he was in fact convicted multiple
    times for the same crime. In support of that argument, he notes that counts 1 and 2 of the
    indictment returned against him “are identical charges of first degree rape, and counts 3
    through 6 are identical charges of first degree sodomy.” In fact, both counts 1 and 2 did
    read identically, charging that “[o]n or about the 6th day of April, 1993, in Fayette County,
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    Kentucky, the above named Defendant committed first degree rape by forcing Edna
    Galbreath to engage in sexual intercourse by forcible compulsion.” Similarly, counts 3, 4,
    5, and 6 each charged that “[o]n or about the 6th day of April, 1993, in Fayette County,
    Kentucky, the above named Defendant committed first degree sodomy by engaging in
    deviate sexual intercourse with Edna Galbreath by forcible compulsion.”
    Such poorly-drafted indictments present at least two potential double jeopardy
    problems: (1) the possibility that insufficient specificity in the indictment would not enable
    Cowherd “to plead convictions or acquittals as a bar to future prosecutions”; and (2) the
    possibility that the undifferentiated counts would subject Cowherd “to double jeopardy in
    his initial trial by being punished multiple times for what may have been the same offense.”
    Valentine v. Konteh, 
    395 F.3d 626
    , 634-35 (6th Cir. 2005). Unlike the situation presented
    in Valentine, however, the trial evidence adduced in the proceedings against Cowherd
    cured any defects in the indictment’s drafting. In Valentine, the defendant was charged
    with 20 identically-worded counts of child rape and 20 identically-worded counts of
    felonious sexual penetration, all occurring at some unspecified time between March 1,
    1995, and January 16, 1996. See 
    id. at 628-29.
    At trial, however, “[t]he only evidence as
    to the number of offenses was provided by the testimony of the child victim, who described
    typical abuse scenarios and estimated the number of times the abusive offenses occurred,
    e.g., ‘about 20,’ ‘about 15' or ‘about 10' times.” 
    Id. at 628.
    Consequently, neither the
    defendant nor any reviewing court could ascertain for certain whether the resulting 40
    convictions were in fact connected to 40 separate, proven crimes.
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    By contrast, petitioner Cowherd cannot now claim that he is unsure of the basis for
    his six sexual offense convictions. The trial testimony of the victim clearly delineated the
    sequence of events that occurred on April 6, 1993. According to Galbreath, Cowherd
    bound her, threatened her with a knife, and forced her to engage in vaginal, anal, and oral
    sex before pausing to cook and eat a meal, leave the premises, return, ingest illegal drugs,
    and then repeat the vaginal, anal, and oral sexual assaults. More importantly, Cowherd
    himself admitted to each of the charged activities but insisted that Galbreath was a willing
    participant in the acts.
    The indictment, despite inartful drafting, nevertheless charges Cowherd with two
    counts of vaginal rape and four counts of sodomy. The only testimony at trial regarding
    the alleged crimes clearly indicated that the petitioner twice penetrated Galbreath’s vagina
    with his penis against her will, twice penetrated her anus with his penis against her will, and
    twice forced his penis into her mouth against her will. Moreover, the jury convicted
    Cowherd of each of the two rape charges and of each of the four sodomy allegations. The
    confluence of the charges, the trial testimony, and the jury verdicts thus ensures both that
    Cowherd could successfully plead these convictions as a bar to any future prosecution
    based upon these acts, and that Cowherd was punished only for these six crimes and only
    once for each of the six offenses. The petitioner’s double jeopardy challenge is thus
    without merit, and the district court appropriately concluded that the state court’s treatment
    of this issue was neither contrary to, nor an unreasonable application of, clearly established
    Supreme Court precedent relevant to the claim.
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    D. Ineffective Assistance of Counsel Claim
    In his final appellate issue, Cowherd submits that his trial attorney provided him with
    ineffective assistance of counsel by failing to investigate fully the petitioner’s version of the
    events of April 6, 1993. Specifically, Cowherd argues that had his attorney attempted to
    locate witnesses to Galbreath’s alleged prior drug use, or had he sought verification that
    the victim’s fingerprints were on a crack pipe also used by the petitioner, counsel could
    have discredited the victim and provided support for the defense theory that Galbreath
    made baseless rape allegations in order to punish Cowherd for refusing to pay for the
    drugs the two individuals willingly consumed.
    In addressing this claim of ineffective assistance of counsel, we must be guided by
    the now-familiar two-part test of Strickland v. Washington, 
    466 U.S. 668
    (1984). As
    required by that analytical framework:
    First, the defendant must show that counsel’s performance was deficient.
    This requires showing that counsel made errors so serious that counsel was
    not functioning as the “counsel” guaranteed the defendant by the Sixth
    Amendment. Second, the defendant must show that the deficient
    performance prejudiced the defense. This requires showing that counsel’s
    errors were so serious as to deprive the defendant of a fair trial, a trial whose
    result is reliable.
    
    Id. at 687.
    In Groseclose v. Bell, 
    130 F.3d 1161
    , 1167 (6th Cir. 1997), in discussing the first
    prong of the Strickland analysis, we recognized that:
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    The [Supreme] Court cautioned that in undertaking an ineffective-assistance
    review, “[j]udicial scrutiny of counsel’s performance must be highly
    deferential,” and must avoid the “second-guess[ing of] counsel’s
    assistance . . ., [as] it is all too easy for a court, examining counsel’s defense
    after it has proved unsuccessful, to conclude that a particular act or omission
    of counsel was unreasonable.” 
    Strickland, 466 U.S. at 689
    . . . . In order to
    avoid “the distorting effects of hindsight,” a reviewing “court must indulge a
    strong presumption that counsel’s conduct falls within the wide range of
    reasonable professional assistance; that is, the defendant must overcome
    the presumption that . . . the challenged action ‘might be considered sound
    trial strategy.’” 
    Id. (citation omitted).
    Furthermore, in evaluating the prejudice suffered by a petitioner as a result of alleged
    ineffective assistance of counsel, “[i]t is not enough for the defendant to show that the
    errors had some conceivable effect on the outcome of the proceeding.” 
    Strickland, 466 U.S. at 693
    . Indeed, “[v]irtually every act or omission of counsel would meet that test, and
    not every error that conceivably could have influenced the outcome undermines the
    reliability of the result of the proceeding.” 
    Id. (citation omitted).
    Rather, the petitioner “must
    show that there is a reasonable probability that, but for counsel’s unprofessional errors, the
    result of the proceeding would have been different.            A reasonable probability is a
    probability sufficient to undermine confidence in the outcome.” 
    Id. at 694.
    Finally, in conducting this inquiry, we need not apply Strickland’s principles in a
    mechanical fashion. As the Supreme Court explained:
    [A] court need not determine whether counsel’s performance was deficient
    before examining the prejudice suffered by the defendant as a result of the
    alleged deficiencies. The object of an ineffectiveness claim is not to grade
    counsel’s performance. If it is easier to dispose of an ineffectiveness claim
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    on the ground of lack of sufficient prejudice, which we expect will often be so,
    that course should be followed.
    
    Id. at 697.
    Just such a reverse treatment of the two prongs of the Strickland test is appropriate
    in this case. Even if Cowherd’s counsel had established at trial that Galbreath had
    previously used illegal drugs and that her fingerprints were on the crack pipe found in the
    residence, such information still would not have established that the petitioner did not
    forcefully rape the victim on April 6, 1993. Any prior drug use by Galbreath was thus
    completely irrelevant to the question of whether she consented to the sexual acts Cowherd
    himself admitted performing.       Because the alleged deficiencies in representation
    highlighted by the petitioner do not undermine confidence in the outcome of the
    proceedings, Cowherd is also not entitled to habeas relief on this ground.
    III. CONCLUSION
    Because the decisions of the Kentucky courts in this matter were neither contrary
    to nor an unreasonable application of any clearly established federal law, as determined
    by the United States Supreme Court, petitioner Cowherd is not entitled to habeas corpus
    relief on any of the issues he now raises on appeal. We thus AFFIRM the district court’s
    denial of Cowherd’s habeas petition.
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