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Cowell v. Clarke

United States District Court, E.D. Virginia, Alexandria Division

March 4, 2019

George Sangria Cowell, Petitioner,
v.
Harold W. Clarke, Respondent.

          MEMORANDUM OPINION

          LIAM O'GRADY UNITED STATES DISTRICT JUDGE

         George Sangria Cowell, a Virginia inmate proceeding pro se, has filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging his conviction of drug offenses entered on a plea of guilty in the Circuit Court for the City of Chesapeake. The matter comes before the Court on a Motion to Dismiss the petition filed by the respondent, to which petitioner has filed his opposition. For the reasons which follow, the Motion to Dismiss will be granted, and the petition will be dismissed, with prejudice. Also pending is petitioner's Motion for Stay-and-Abeyance of Petitioner's Mixed Habeas Corpus Petition, which will be denied.

         I. Background

         On May 9, 2014, the trial court accepted Cowell's guilty plea and entered convictions for possession of a firearm while possessing drugs with the intent to distribute, possession of heroin with the intent to distribute, possession of cocaine with the intent to distribute, and possession of a firearm after having been convicted of a violent felony. Case No. CR12-200-00 through -03.[1] Cowell subsequently moved to withdraw the guilty plea, Resp. Ex. 5, and the trial court denied his request in open court after a hearing. Resp. Ex. 6, Tr. 4/15/14 at 13. Consistent with the terms of the plea agreement, which capped CowelFs maximum active term of imprisonment at 20 years, he was sentenced on May 1, 2014, to an active sentence of 18 years incarceration. Resp. Ex. 4. Cowell took no direct appeal.

         On May 4, 2015, Cowell timely filed a petition for a state writ of habeas corpus, in which he raised the following claims:

1. Trial counsel was ineffective for failing to investigate, interview and subpoena defense witnesses.
2. Trial counsel was ineffective for (a) failing to prepare for the suppression hearing, (b) refusing to allow Cowell to testify at that hearing, and (c) failing to appeal the denial of the motion to suppress.
3. Trial counsel was ineffective for failing to object to the denial of the defense's attempt to use exculpatory evidence.
4. Trial counsel was ineffective for coercing him to plead guilty after failing to use an available defense.
5. Trial counsel was ineffective for misadvising him about the true nature of the plea and the likely outcome at sentencing.
6. Trial counsel was ineffective for failing to (a) prepare for trial, (b) prepare for sentencing and review the presentence report with Cowell, and (c) file necessary motions.
7. Trial counsel was ineffective for refusing to provide Cowell with copies of the plea agreement and counsel's case file after Cowell requested them in a letter on May 1, 2014.
8. The trial court erred when it refused to permit the defense to use an affidavit containing a third-party confession to the crimes as exculpatory evidence.
9. Trial counsel was ineffective when he failed to (a) appeal the denial of Cowell's motion to withdraw . his guilty plea after Cowell instructed him to do so, and (b) inform Cowell that he could file such an appeal.
10. The trial court erred in failing to allow Cowell to withdraw his guilty plea where the motion to do so was supported by evidence of actual innocence.
11. The Commonwealth committed prosecutorial misconduct when it strategically moved to have a new judge hear certain exculpatory evidence.
12. The Commonwealth committed prosecutorial misconduct when it failed to honor a tentative plea agreement.
13. Counsel was ineffective for failing to move for dismissal of all charges after forensic evidence proved Cowell's innocence.
14. The trial court erred when it failed to allow Cowell to assert his rights to a speedy trial and a fair trial.

Resp. Ex. 7. Respondent in its Answer conceded that Cowell was entitled to relief in the form of a delayed appeal on Claim 9(b), and the trial court entered an Order on January 14, 2016, directing the respondent to petition the Court of Appeals of Virginia to grant Cowell the right to seek a delayed appeal. Cowell's remaining claims were determined to be without merit and were denied and dismissed with prejudice. Resp. Ex. 8. After the Court of Appeals granted Cowell the right to seek a delayed appeal, Resp. Ex. 9, the trial court entered a final order on March 22, 2016, finding that Cowell had been "granted the relief to which he is entitled and nothing further remains to be done." Resp. Ex. 10.

         Counsel was appointed to represent Cowell on the delayed appeal. On March 28, 2017, counsel filed a petition for appeal pursuant to Anders v. California. 386 U.S. 738 (1967), along with a motion to withdraw. Resp. Ex. 11-12. The sole potential error cited by counsel was the trial court's denial of CowelPs motion to withdraw the guilty plea. Resp. Ex. 11 at 2. Cowell filed a pro se supplemental petition for appeal, arguing that: (1) the trial court erred by allowing the Commonwealth to breach the plea agreement, and (2) the trial court erred by accepting a fraudulent plea agreement that left the sentence to the court's discretion. Resp. Ex. 13. On November 17, 2017, the Court of Appeals denied the petition for appeal and granted the motion to withdraw, finding the case to be "wholly frivolous." Cowell v. Commonwealth. R. No. 0486-16-1 (Va. Ct. App. Nov. 17, 2017); Resp. Ex. 14. Cowell's subsequent motions for rehearing and rehearing en banc were denied, Resp. Ex. 16-17, and although he noticed an appeal to the Supreme Court of Virginia, Resp. Ex. 19, he never perfected the appeal.

         While the delayed appeal proceedings were ongoing, Cowell filed a pro se petition for appeal in the Supreme Court of Virginia, challenging the trial court's dismissal of the remainder of the claims he raised in his state habeas petition. Resp. Ex. 20. On April 12, 2017, the Supreme Court determined that there was no error in the trial court's judgment and refused the petition for appeal. Cowell v. Wright. R. No. 161085 (Va. Apr. 12, 2017); Resp. Ex. 21.

         On or about June 8, 2018, Cowell timely filed the instant petition for a writ of habeas corpus pursuant to § 2254.[2] [Dkt. No. 9] In it, he makes the following claims:[3]

1. The trial court abused its discretion when it (a) denied Cowell's motion to suppress, in violation of his Fourth and Fifth Amendment rights; (b) accepted his guilty plea that was not knowing, voluntary or intelligent, in violation of his Fifth Amendment rights; and (c) refused to allow him to withdraw the guilty plea, in violation of his Fourteenth Amendment rights.
2. (a) Appellate counsel was ineffective for failing to argue that Cowell's guilty plea was not knowing, voluntary or intelligent, (b) Trial counsel was ineffective for erroneously advising Cowell that he could still appeal the denial of his motion to suppress after he entered an unconditional guilty plea.
3. Trial counsel was ineffective for (a) deliberately choosing not to prepare for criminal proceedings; (b) failing to investigate, contact, interview and subpoena critical witnesses; and (c) failing to present an available defense.
4. The trial court abused its discretion and violated Cowell's Fourteenth Amendment rights by accepting a plea agreement that stated that the court would have discretion at sentencing, thereby rendering the agreement faulty, fraudulent and void.

         On July 9, 2018, respondent filed a Motion to Dismiss with a supporting brief and exhibits, and provided petitioner with the notice required by Roseboro v. Garrison. 528 F.2d 309 (4th Cir. 1975) and Local Rule 7K. [Dkt. No. 13-15] After receiving an extension of time, Cowell filed his opposition to the Motion to Dismiss on August 2, 2018. [Dkt. No. 22] In addition, Cowell filed a Motion for Stay-and-Abeyance on July 30, 2018. [Dkt. No. 20] Accordingly, this matter is ripe for disposition.

         II. Exhaustion and Procedural Default

         Before bringing a federal habeas petition, a person convicted of a state crime must first exhaust his claims in the appropriate state court. 28 U.S.C. § 2254(b); Granberrv v Greer. 481 U.S. 129 (1987); Rose v. Lundv. 455 U.S. 509 (1982). To comply with the exhaustion requirement, a petitioner "must give the state courts one full opportunity to resolve any constitutional issues by invoking one complete round of the State's established appellate review process." O'Sullivan v. Boerckel. 526 U.S. 838, 845 (1999). Thus, a petitioner convicted in Virginia first must have presented the same factual and legal claims raised in his federal habeas corpus application to the Supreme Court of Virginia on direct appeal or in a state habeas corpus petition. Duncan v. Henrv. 513 U.S. 364 (1995).

         In addition, "[a] claim that has not been presented to the highest state court nevertheless may be treated as exhausted if it is clear that the claim would be procedurally barred under state law if the petitioner attempted to present it to the state court." Gray v. Netherland. 518 U.S. 152, 161 (1996). Importantly, "the procedural bar that gives rise to exhaustion provides an independent and adequate state-law ground for the conviction and sentence, and thus prevents federal habeas review of the defaulted claim." Id. at 162. Therefore, such a claim is deemed to be simultaneously exhausted and defaulted for purposes of federal habeas review. See Bassette v. Thompson. 915 F.2d 932 (4th Cir. 1990).

         Where a state court "clearly and expressly bases its dismissal of a habeas petitioner's claim on a state procedural rule, and that procedural rule provides and independent and adequate ground for the dismissal, the habeas petitioner has procedurally defaulted his federal claim." Breard v. Pruett. 135 F.3d 615, 619 (4th Cir. 1998). Thus, "[a] habeas petitioner is barred from seeking federal review of a claim that was presented to a state court and 'clearly and expressly' denied on the independent, adequate state ground of procedural default." Bennett v. Angelone. 92 F.3d 1336, 1343 (4th Cir. 1996). A state procedural rule is "adequate if it is firmly established and regularly or consistently applied by the state courts, and "independent" if it does not depend upon a federal constitutional ruling. Yeatts v. Angelone. 166 F.3d 255, 263-64 (4th Cir. 1998). Moreover, a claim is defaulted for federal purposes whenever a state court makes a finding of procedural default, regardless of whether it discusses the merits of the claim in the alternative. Alderman v. Zant. 22 F.3d 1541, 1549 (11th Cir. 1994) (holding that "where a state court has ruled in the alternative, addressing both the independent state procedural ground and the merits if the federal claim, the federal court should apply the state procedural bar and decline to reach the merits of the claim."). Pursuant to these principles, claims 1(a), 1(b), 1(c) 2(b), portions of claims 3(a) and 3(c), and claim 4 of this petition are procedurally barred from federal review.

         In claim 1(a), Co well argues that the trial court violated his Fourth and Fifth Amendment rights and abused its discretion when it denied his motion to suppress. This claim was not exhausted in the state forum, as Cowell failed to raise it on direct appeal or in his state habeas corpus petition. Resp. Ex. 7, 11, 13. Were he to return to the state courts to attempt to raise it now, the claim would be barred pursuant to Va. Code § 8.01-654(B)(2), which states that "[n]o writ shall be granted on the basis of any allegation of facts of which petitioner had knowledge at the time of ...


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