Cowan v. Asuncion

TYRONE JUSTIN COWAN, Petitioner, v. DEBBIE ASUNCION, Respondent.

Case No. 1:16-cv-01826-DAD-SAB-HC

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA

June 7, 2017

FINDINGS AND RECOMMENDATION RECOMMENDING DENIAL OF PETITION FOR WRIT OF HABEAS CORPUS

Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254.

I.BACKGROUND

On April 23, 2013, Petitioner was convicted after a jury trial in the Fresno County Superior Court of first-degree murder (count 1), attempted first-degree murder (count 3), and two counts of second-degree robbery (counts 2 and 4). (2 CT¹ 410-13). The trial court sentenced Petitioner to an indeterminate term of life without the possibility of parole (count 1) and a consecutive indeterminate term of life with the possibility of parole (count 3). Additionally, the trial court imposed two consecutive terms of twenty-five years to life on the enhancements as to counts 1 and 3. The sentences for counts 2 and 4 were stayed. (2 CT 423, 425). On July 13, 2015,the California Court of Appeal, Fifth Appellate District affirmed the judgment. People v. Cowan, No. F067354, 2015 WL 4199118, at *8 (Cal. Ct. App. July 13, 2015). The California Supreme Court denied Petitioner's petition for review on October 14, 2015. (LDs² 22, 23).

On December 5, 2016, Petitioner filed the instant federal petition for writ of habeas corpus. (ECF No. 1). In the petition, Petitioner raises the following claims for relief: (1) a deficient Miranda admonition, (2) ineffective assistance of counsel, and (3) cumulative trial errors. Respondent has filed an answer, and Petitioner has filed a traverse. (ECF Nos. 9, 12).

II.STATEMENT OF FACTS³

The underlying incident occurred on August 1, 2007 in southwest Fresno near the intersection of Clara and Vine Avenues. Efigenia Meza had walked to a nearby school with her stepchildren that morning to register them for classes. A relative named Geremias Leon accompanied her on this errand. While crossing through a field on their way back home, the group was approached by a man carrying a rifle. The stranger began talking to them and gesturing towards Ms. Meza's and Ms. Leon's purses. Neither woman spoke English, but the children understood that he was saying, "Give me the bags." As the kids ran off to find help, the gunman shot and killed Ms. Meza. He also fired multiple rounds at Ms. Leon, who sustained a non-lethal bullet wound while attempting to reach safety. Both victims dropped their purses during the gunfire, and the killer took those items with him when he left the field.

Several law enforcement officers responded to reports of the shooting and secured the perimeter around Ms. Meza's body. The ensuing investigation led police to a nearby home where the suspect was believed to have fled. Following a stand-off that culminated in a SWAT team firing tear gas into the residence, Tyrone Cowan exited and surrendered to police. Cowan made several incriminating statements at the time of his arrest. He later participated in a recorded interview with homicide detectives, whereupon he further implicated himself in the shootings. We provide a more detailed summary of Cowan's statements in the Discussion, post.

. . .

There were extensive delays in the criminal proceedings due to questions concerning the defendant's mental competency. Cowan was transferred back and forth between the Fresno County Jail and Atascadero State Hospital (Atascadero) at least three times over a period of approximately four years. The staff members at Atascadero had suspected, and ultimately concluded, that he was feigning symptoms of mental illness in order to avoid prosecution. A final competency determination was made in August 2012, and the case was then tried to a jury in April 2013. An earlier plea of not guilty by reason of insanity was withdrawn by the defense prior to the commencement of trial.

The prosecution's case-in-chief included testimony from Ms. Leon and from Ms. Meza's stepchildren, which established the facts surrounding the offenses. The jury was made aware that Ms. Leon and Ms. Meza's stepson had previously identified Cowan as the perpetrator during live show-up and photographic line-up procedures. Jurors also heard evidence regarding the defendant's incriminating statements to police.

Testimony by law enforcement officers and crime scene technicians revealed that one .22-caliber bullet and five spent .22-caliber shell casings were recovered from the crime scene. A search of Cowan's home uncovered bloody clothing, as well as another live round and spent shell casing which were of the same caliber as those found next to the homicide victim. The presumed murder weapon, an illegally modified .22-caliber Ruger rifle, was located at the bottom of a ponding basin near the field where the shooting took place. Forensic analysis indicated that all of the recovered shell casings had been fired from the .22-caliber rifle.

Pathologist Michael Chambliss, M.D., testified regarding the autopsy he performed on the deceased victim. His testimony explained that Ms. Meza was shot three times; once in the upper body and twice in the head. Dr. Chambliss believed that the injury to the back of the victim's head came last in the sequence of shots, preceded by bullet strikes to the left chest and right side of the face. The characteristics of Ms. Meza's final head wound indicated that the barrel of the gun was placed directly against her skull when it was fired.

The defense case was comprised of testimony from one expert witness. Dr. Avak Howsepian, a psychiatrist, evaluated Cowan on two occasions in October 2007 (approximately four months after his arrest). Based on those face-to-face meetings and a review of the defendant's medical records, Dr. Howsepian concluded that Cowan suffered from "bipolar disorder not otherwise specified; psychotic disorder not otherwise specified; mild mental retardation; and anxiety disorder not otherwise specified." He also noted that Cowan had a history of aggressive and "disinhibitive" personality changes which were attributed to a head injury he sustained as a child. Dr. Howsepian believed that Cowan's conditions sometimes caused his thought processes to become "highly distorted and highly disorganized," which could impair his ability to premeditate and deliberate, i.e., "to think things through clearly [and] consider consequences of what [he] might be doing."

In rebuttal, the prosecution called two court-appointed psychologists: Harold Seymour, Ph.D., and Richard Kendall, Ph.D. Dr. Seymour interviewed Cowan in 2010 and again in 2013, and diagnosed him with "a mood disorder not otherwise specified and with a borderline intellectual function." The expert did not find Cowan to be psychotic. He did, however, note that Cowan "was self-identifying with a lot of dramatic and atypical psychotic symptoms," which "is very unusual for somebody who's actually very mentally ill." This prompted Dr. Seymour to administer a standardized test designed to determine if someone is faking psychosis. Cowan's score on the examination was highly indicative of malingering.

Through the use of hypothetical questions, the prosecution elicited opinions from Dr. Seymour relevant to the defendant's mental state at the time of the shooting. The expert agreed that using a gun to facilitate a robbery and then shooting the victim when he or she failed to relinquish the demanded property would be classified as "goal-directed behavior." Subsequent flight from the crime scene, disposing of the stolen goods and murder weapon, changing out of bloody clothes,and hiding from police would all likewise indicate planning and a goal-oriented thought process.

Dr. Kendall interviewed Cowan in February 2013, approximately six weeks before trial. Cowan reportedly told the expert, "All I remember is a whole lot of blood and demons, that's what I saw ... I found the gun and then I played with it ... I fired it and then I blacked out and I shot the gun again. I saw demons. I saw this lady laying on the ground. Then I left.... I did pick up the purses, but I put them on the street and I think someone else took [them]."

Cowan also disclosed details about what he had done after the shooting: "I ran back to my house, I took off my shirt and clothes because they had blood on them, then I went to my friend's house."⁴ It was Dr. Kendall's opinion that Cowan had been feigning symptoms of mental illness during their interview. As for the defendant's behavior on the day of the shooting, the expert believed his actions demonstrated an intentional and "goal-directed" course of conduct.

Cowan, 2015 WL 4199118, at *1-3 (footnote in original).

III.STANDARD OF REVIEW

Relief by way of a petition for writ of habeas corpus extends to a person in custody pursuant to the judgment of a state court if the custody is in violation of the Constitution or laws or treaties of the United States. 28 U.S.C. § 2254(a); 28 U.S.C. § 2241(c)(3); Williams v. Taylor, 529 U.S. 362, 375 (2000). Petitioner asserts that he suffered violations of his rights as guaranteed by the U.S. Constitution. The challenged convictions arise out of the Fresno County Superior Court, which is located within the Eastern District of California. 28 U.S.C. § 2241(d).

On April 24, 1996, Congress enacted the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), which applies to all petitions for writ of habeas corpus filed after its enactment. Lindh v. Murphy, 521 U.S. 320 (1997); Jeffries v. Wood, 114 F.3d 1484, 1499 (9th Cir. 1997) (en banc). The instant petition was filed after the enactment of the AEDPA and is therefore governed by its provisions.

Under the AEDPA, relitigation of any claim adjudicated on the merits in state court is barred unless a petitioner can show that the state court's adjudication of his claim:

(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law,

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