RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 11a0100p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
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JESSE J. COWANS,
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Petitioner-Appellant,
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No. 08-4393
v.
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Respondent-Appellee. -
MARGARET A. BAGLEY, Warden,
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Appeal from the United States District Court
for the Southern District of Ohio at Cincinnati.
No. 00-00618—Edmund A. Sargus, Jr., District Judge.
Argued: March 9, 2011
Decided and Filed: April 21, 2011
Before: MERRITT, SUTTON and McKEAGUE, Circuit Judges.
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COUNSEL
ARGUED: Vicki Ruth Adams Werneke, FEDERAL PUBLIC DEFENDER’S OFFICE,
Cleveland, Ohio, for Appellant. Brenda S. Leikala, OFFICE OF THE OHIO
ATTORNEY GENERAL, Columbus, Ohio, for Appellee. ON BRIEF: Vicki Ruth
Adams Werneke, Jillian S. Davis, FEDERAL PUBLIC DEFENDER’S OFFICE,
Cleveland, Ohio, for Appellant. Brenda S. Leikala, OFFICE OF THE OHIO
ATTORNEY GENERAL, Columbus, Ohio, for Appellee.
SUTTON, J., delivered the opinion of the court, in which MERRITT and
McKEAGUE, JJ., joined. MERRITT, J. (p. 15), delivered a separate concurring opinion.
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OPINION
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SUTTON, Circuit Judge. An Ohio jury convicted Jesse Cowans of the murder
of Clara Swart, and the court (consistent with the jury’s recommendation) sentenced him
to death. The Ohio courts upheld his conviction and sentence on direct and collateral
1
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review. Cowans filed a federal habeas petition, which the district court denied. Because
federal courts in habeas proceedings must defer to the state courts’ reasonable
adjudications of federal constitutional claims and because the state courts’ resolution of
Cowans’ claims meets this standard, we affirm.
I.
On August 29, 1996, a bus arrived at the home of Clara Swart to take her to the
Senior Citizen Center. The driver honked, knocked on the door and directed someone
to call the Swart residence, but Swart never answered. That evening, when Swart’s son
went to her house for dinner, he found her dead with a cord tied around her neck and her
hands bound.
Several pieces of evidence implicated Jesse Cowans. The day before the murder,
Swart’s neighbor, Mildred Kilgore, saw a man talking to Swart. After the man left,
Swart told Kilgore that she was scared of the man, whom she knew from a few weeks
before, when he had picked up a chair from her trash. Several people identified the man
as Cowans. A crime scene technician matched Cowans’ palm print to one found in
Swart’s home. The officers scented a bloodhound with Cowans’ scent starting at the
back of the Swart residence, and the bloodhound took the officers to Cowans’ home a
few blocks away.
Cowans’ parole officer, Sandra Higgins, searched Cowans’ residence and found
a small clown figurine that matched one missing from the Swart residence. The police
obtained written consent from Cowans’ wife to search the house and found a wooden car
that came from the top of a jewelry box matching one of Swart’s missing items. Police
also searched the area outside the property and found a jewelry box, jewelry, pillow
cases and an adding machine, all items missing from Swart’s home, near the edge of
Cowans’ property.
The police arrested Cowans. While Cowans was in jail awaiting trial, he
admitted to a cell-mate that he had committed the murder. The jail-house confession
included several non-public details—that Cowans found Swart on the toilet, that he tied
No. 08-4393 Cowans v. Bagley Page 3
her with a phone cord, that he left earrings and a wedding band on Swart, that an “old
people’s bus” arrived at the house and that the bus driver knocked on the door while he
was there. Appx. 758.
Before trial, Cowans openly struggled with his appointed counsel. He
complained that his counsel wanted him to plead guilty, and he asked for new counsel.
The court granted his request. At a later pre-trial hearing, Cowans requested a change
of counsel again, complaining that his new counsel also wanted him to plead guilty. The
court denied his request. Cowans eventually became so angry over this and other
developments that he told the court he no longer wanted to appear at the hearing. The
court granted his request and removed him from the courtroom. At Cowans’ direction,
his defense counsel filed a motion to withdraw. The court held a hearing, and his
counsel testified that Cowans had refused to talk with them since the last hearing. The
court did not grant the request.
After a trial, the jury convicted Cowans of murdering Swart. As the jury read its
verdict, Cowans started swearing and challenged the jury to look him in the eye. The
judge removed him from the courtroom before the foreman read the rest of the verdict.
Sentencing also had its bumps. Cowans initially asked not to be present during
the mitigation hearing. When the judge removed him to watch the proceedings via
closed circuit TV, Cowans disabled the TV. He also directed his counsel not to present
any mitigating evidence. The court spoke with Cowans about this decision, and Cowans
explained that he felt the jurors already had made up their minds. The jury
recommended a death sentence, and the trial judge independently agreed to impose the
sentence.
Cowans appealed his conviction and sentence, and the Ohio Supreme Court
affirmed. State v. Cowans, 717 N.E.2d 298 (Ohio 1999). The state courts denied his
requests for post-conviction relief. State v. Cowans, No. CA98-10-090, 1999 WL
699870 (Ohio Ct. App. Sept. 7, 1999). Cowans asked the Ohio Supreme Court to reopen
his proceedings, see Ohio App. R. 26(B), but the Court denied his request, State v.
Cowans, 812 N.E.2d 1286 (Ohio 2004) (unpublished table order).
No. 08-4393 Cowans v. Bagley Page 4
Cowans filed a federal habeas petition. The district court denied the petition,
Cowans v. Bagley, 624 F. Supp. 2d 709 (S.D. Ohio 2008), but granted him a certificate
of appealability with respect to several claims, and we added one claim more.
II.
Cowans filed his petition for habeas corpus after the effective date of the
Antiterrorism and Effective Death Penalty Act (AEDPA). We thus may grant a writ
with respect to claims “adjudicated on the merits in State court proceedings” only if the
state court adjudication “(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 on an
unreasonable determination of the facts in light of the evidence presented in the State
court proceeding.” 28 U.S.C. § 2254(d).
A.
Mitigating evidence at sentencing. Cowans’ first argument—that the
Constitution prevents a defendant from waiving his right to present mitigating evidence
at a capital trial—fails because AEDPA allows federal courts to grant the writ only when
state courts misapply “clearly established” federal law, id. § 2254(d)(1), and no such law
exists. The Supreme Court has never held that the Eighth Amendment or any other
constitutional provision requires a defendant to present mitigating evidence at the
sentencing phase of a capital trial. The Court, in point of fact, has suggested otherwise.
Schriro v. Landrigan, 550 U.S. 465 (2007), reversed the Ninth Circuit’s decision to grant
an evidentiary hearing on a defendant’s claim that he did not knowingly and voluntarily
waive his right to present mitigating evidence at his capital sentencing hearing. The
Court held that the defendant’s behavior and statements indicated he did not want to
present mitigating evidence, id. at 479–80, a holding that necessarily suggests a
defendant has the right not to introduce mitigating evidence.
Cowans’ related argument—that he did not knowingly and intelligently waive
his right to present mitigating evidence—fails for similar reasons. Schriro reversed the
No. 08-4393 Cowans v. Bagley Page 5
Ninth Circuit for granting an evidentiary hearing on a similar claim, noting that the
Court has “never imposed an ‘informed and knowing’ requirement upon a defendant’s
decision not to introduce [mitigating] evidence.” Id. at 479. Attempting to overcome
Schriro, Cowans invokes the Ohio Supreme Court’s decision in State v. Ashworth, 706
N.E.2d 1231 (Ohio 1999), which created a list of questions for trial courts to ask capital
defendants who wish to waive the presentation of mitigating evidence. A claim for relief
based on state law, however, generally cannot provide grounds for federal habeas relief.
28 U.S.C. § 2254(a); Wilson v. Corcoran, __ U.S. __, 131 S. Ct. 13, 16–17 (2010) (per
curiam). Even if Ashworth meant to establish a federal constitutional rule (it is not
clear), that does not help Cowans because we may grant relief based only on decisions
of the Supreme Court of the United States, not the Supreme Court of Ohio. 28 U.S.C.
§ 2254(d)(1).
AEDPA’s requirement that we defer to state courts’ factual determinations also
undermines this claim. See id. §§ 2254(d)(2), (e)(1). The Ohio Supreme Court held that
“there is nothing to indicate that Cowans did not knowingly and voluntarily relinquish
his right to present mitigating evidence,” Cowans, 717 N.E.2d at 314, and there is
nothing unreasonable about that determination. Cowans told his attorneys that he did
not want to present any mitigating evidence and instructed potential witnesses not to
testify. In open court, the sentencing judge verified that Cowans did not want to present
any mitigating evidence and probed Cowans’ understanding of the consequences of that
decision. The record supports this finding.
B.
Competency examination. Also unavailing is Cowans’ challenge to the district
court’s decision not to order him to undergo a competency examination. If before or
during trial “sufficient doubt” arises about a defendant’s competence—“the capacity to
understand the nature and object of the proceedings against him, to consult with counsel,
and to assist in preparing his defense”—the trial court should order a competency
hearing. Drope v. Missouri, 420 U.S. 162, 171, 180 (1975). “There are, of course, no
fixed or immutable signs” of incompetence, the standard is a high one, and the relevant
No. 08-4393 Cowans v. Bagley Page 6
factors—“evidence of a defendant’s irrational behavior, his demeanor at trial, and any
prior medical opinion on competence”—“are difficult to evaluate.” Id. at 180. These
open-ended standards and the high threshold for establishing incompetence give state
courts wide latitude in a habeas case. When virtually everything is potentially relevant
and nothing is dispositive, reasonable minds occasionally may come to different
conclusions about whether to hold a competency hearing. See Yarborough v. Alvarado,
541 U.S. 652, 664 (2004).
That at most is what happened here. Although Cowans’ demeanor at trial and
his decision not to present mitigating evidence raised concerns about his mental
capacity, the state appellate courts determined that the trial court did not have to order
a competency exam, a reasonable determination in view of the universe of relevant
circumstances. None of Cowans’ outbursts suggested he was “incompetent,” meaning
incapable of understanding the nature of the charges against him or assisting in his
defense. See Drope, 420 U.S. at 171. Cowans has no significant mental history, whether
before the trial or since. At the guilt phase of the trial, he showed himself capable of self
control and did not have any outbursts. His outbursts before trial and at the penalty
phase also were not irrational, as they coincided with negative developments in the
proceedings. His behavior—requesting new counsel and angry outbursts at the jury,
judge and counsel—could be read in one of two ways: as evidence of mental
incompetence or of an angry, hostile personality. The trial court, which had the benefit
of interacting with Cowans, concluded that he acted out of pique, not out of mental
incompetence. Cowans, 717 N.E.2d at 312. That was a reasonable determination on this
record.
Nor does the evidence obtained since trial undermine the trial court’s decision.
His psychiatrists’ affidavits include diagnoses ranging from substance abuse problems
to personality disorders but not mental incompetence. The affidavits say only that some
of the evidence “suggest[s]” the “possibility” of mental illness, not that he was
incompetent during trial. Appx. 414. That does not suffice to displace the state court’s
No. 08-4393 Cowans v. Bagley Page 7
competency determination. See 28 U.S.C. § 2254(d)(2); Thompson v. Keohane, 516 U.S.
99, 111 (1995)
Cowans persists that the presumption of correctness for state court findings does
not apply to the state court’s determination because the state courts never held a
competency hearing. Nothing in § 2254(d)(2), however, suggests we defer to a state
court’s factual findings only if the state court held a hearing on the issue. Cf. Harrington
v. Richter, __U.S.__, 131 S. Ct. 770, 783–84 (2011). “By its terms, § 2254(d) bars
relitigation of any claim ‘adjudicated on the merits’ in state court, subject only to the
exceptions in §§ 2254(d)(1) and (d)(2). There is no text in the statute requiring” a
hearing. Id. at 784. The Supreme Court has deferred to a state court’s competency
determination even when the state court did not hold a hearing, see Maggio v. Fulford,
462 U.S. 111, 117 (1983) (per curiam), and we have never suggested that § 2254(d)(2)
does not apply to competency determinations issued without a hearing. See Mackey v.
Dutton, 217 F.3d 399, 413 n.14 (6th Cir. 2000).
C.
Dog-tracking videotape. The officers videotaped a re-enactment of the dog-
tracking (absent the bloodhound or any other dog) that showed the path the officers took
from the victim’s house to Cowans’ house, and they played the videotape for the jury.
Cowans says that the presentation of the videotape violated his due process rights. A
state evidentiary ruling, however, rises to the level of a due process violation only if
admitting the evidence “so infused the trial with unfairness as to deny [the defendant]
due process of law.” Estelle v. McGuire, 502 U.S. 62, 75 (1991).
Cowans has not shown that this evidence rendered the proceedings “so egregious
that it resulted in a denial of fundamental fairness.” Giles v. Schotten, 449 F.3d 698, 704
(6th Cir. 2006). When the trial court admitted the re-enactment video, it gave a limiting
instruction and directed the jury to consider the evidence with caution, stating that the
video had only “slight probative value” and should be viewed with “the utmost caution.”
Appx. 2846. In closing argument, the prosecution admitted that the evidence was of
marginal value and conceded that the evidence by itself did not suffice to convict.
No. 08-4393 Cowans v. Bagley Page 8
During cross-examination, defense counsel pointed out the deficiencies in the videotape:
how the tape differed from the actual tracking and how the bloodhound lost the scent
twice in the actual tracking. It was not unreasonable for the state courts to conclude that
this evidence did not deprive Cowans of a fair trial.
D.
Ineffective assistance of trial counsel. Cowans raises several claims related to
the performance of his trial counsel. To prevail, he must show that his attorney’s
performance was objectively unreasonable and that his attorney’s failings so infected the
proceedings as to make the trial unfair and the verdict unreliable. See Strickland v.
Washington, 466 U.S. 668, 688 (1984). Because the state courts adjudicated these
claims on the merits, we defer to the state court’s reasonable interpretations of
Strickland. Under this “doubly deferential” standard of review, Yarborough v. Gentry,
540 U.S. 1, 6 (2003), “the question is not whether counsel’s actions were reasonable.
The question is whether there is any reasonable argument that counsel satisfied
Strickland’s deferential standard,” Richter, 131 S. Ct. at 788.
Mitigating evidence. Cowans makes two arguments on this score: (1) his
counsel should have ensured that Cowans knowingly and voluntarily opted not to
introduce mitigating evidence at the penalty phase of the trial; and (2) his counsel should
have presented mitigating evidence anyway or at least requested that independent
counsel do so. Both claims fail for lack of prejudice.
Even assuming counsel should have ensured that Cowans made his decision not
to present mitigating evidence knowingly and voluntarily, Cowans was not prejudiced
given the Ohio Supreme Court’s determination that “Cowans’s waiver was knowing and
voluntary.” Cowans, 717 N.E.2d at 315; Cowans, 1999 WL 699870, at *6. That finding
stands unless the state courts unreasonably applied Supreme Court precedent or
unreasonably determined the facts, and the state courts did neither. Cowans does not
allege any government overreaching, which is fatal to his claim of involuntariness. See
Colorado v. Connelly, 479 U.S. 157, 169–70 (1986). The facts also support the state
court’s conclusion. Cowans first voiced his desire not to participate in the sentencing
No. 08-4393 Cowans v. Bagley Page 9
proceedings after the verdict was read. Two weeks later, at the mitigation hearing, he
continued to express his wish not to contribute any defense at sentencing. His firm
resolve over a period of time suggests he knew what he was doing, that his waiver was
knowing and voluntary. The trial court also asked Cowans to explain his decision and
verified that Cowans did not want to present mitigating evidence. The court explained
the probable consequences of that decision, including that the jury likely would sentence
him to death. The next day, before the jury heard any evidence, the court confirmed that
Cowans had not changed his mind. At both hearings Cowans’ counsel stated that they
had discussed this decision with him several times.
Cowans also challenges his attorneys’ acquiescence in his decision not to present
mitigating evidence. Cowans now believes that his counsel should have proffered
mitigating evidence, should have presented mitigating evidence or should have hired
independent counsel to present mitigating evidence. Counsel’s failure to present
mitigating evidence at sentencing, it is no doubt true, may in some circumstances
constitute ineffective assistance. Martin v. Mitchell, 280 F.3d 594, 612 (6th Cir. 2002).
But Cowans’ attorneys did not decide for themselves on a whim not to present mitigating
evidence; they reached this decision after several conversations over a period of time
with their client. That was not unreasonable, as several other courts have held on similar
records. See Wood v. Quarterman, 491 F.3d 196, 203 (5th Cir. 2007); Shelton v.
Carroll, 464 F.3d 423, 439–40 (3d Cir. 2006); Jeffries v. Blodgett, 5 F.3d 1180, 1197–98
(9th Cir. 1993).
Schriro also supports the state court’s decision. It held that a district court did
not have to grant an evidentiary hearing on a similar ineffective-assistance claim
predicated on counsel’s failure to pursue and present mitigating evidence at a capital
sentencing hearing when the defendant had not allowed his counsel to present any
mitigating evidence. “[T]he District Court could conclude,” the Court stated, that
because the defendant “would have interrupted and refused to allow his counsel” to
present mitigating evidence, the defendant “could not demonstrate prejudice” from
counsel’s failure to present any such evidence. 550 U.S. at 477. The Ohio state courts
No. 08-4393 Cowans v. Bagley Page 10
reasonably could say the same—that “because of [Cowans’] established recalcitrance”
in refusing to allow his counsel to present mitigating evidence (indeed Cowans contacted
potential witnesses himself and directed them not to testify on his behalf), he “could not
demonstrate prejudice” from his counsel’s failure to present the evidence. Id.
Competency hearing. Cowans claims that his attorneys unreasonably failed to
request a competency hearing. Yet Cowans cannot establish prejudice here either, in
view of the state court’s presumptively correct finding that Cowans was competent. See
28 U.S.C. § 2254(d)(2); Thompson, 516 U.S. at 111. Had the attorneys requested a
competency hearing, in other words, the results of the trial would not have changed.
Search of his home. Cowans claims that his counsel should have challenged the
police officers’ search of his home. Although Cowans’ attorneys argued before the state
courts that the parole officer’s search was invalid, Cowans now believes the motion to
suppress should have focused on the validity of his wife’s consent to search their home.
This argument faces two problems.
The first is that trial counsel’s failure to make an additional (or alternative)
Fourth Amendment objection does not fall below an objective standard of
reasonableness. Often an attorney will have several possible arguments available to her
and will choose the one she thinks is the most likely to succeed or offers the greatest
possible return for her client. Choosing the ground on which to contest a search is
classically the kind of strategic decision that attorneys are hired to make. See Strickland,
466 U.S. at 690–91. Counsel ultimately decided to challenge the search of the parole
officer, Higgins, rather than the validity of Judith Cowans’ consent. That is
understandable because Higgins’ search uncovered the first piece of incriminating
evidence linking Cowans to Swart’s murder, the clown figurine that matched one taken
from Swart’s house.
The second problem is that Cowans has not established prejudice. The officers
obtained consent to search the home from Judith Cowans, who was his wife and shared
the home with him. Although Judith and Jesse were separated at the time and did not
occupy the same rooms, that is not relevant to the validity of her consent, which turns
No. 08-4393 Cowans v. Bagley Page 11
on what the officers knew (or should have known under the circumstances). Under
Illinois v. Rodriguez, 497 U.S. 177 (1990), “[a] search consented to by a third party
without actual authority over the premises is nonetheless valid if the officers reasonably
could conclude from the facts available that the third party had authority to consent to
the search.” United States v. Gillis, 358 F.3d 386, 390–91 (6th Cir. 2004). A reasonable
officer could conclude from the facts available to her at the time—that Judith was Jesse’s
wife and was at home when the officers called—that Judith had authority to consent to
a search of the home. The state courts thus reasonably concluded that Cowans would
not have prevailed if his counsel had made a different Fourth Amendment objection to
the search of his home.
Dog-tracking video. Cowans faults his counsel for failing to keep the dog-
tracking video out of the trial record. Yet his counsel requested (and the court issued)
a special instruction cautioning the jury about the credibility of the video, objected
during testimony about the dog’s error rate, objected to the reliability of the re-enactment
and renewed a continuing objection to the video before the tape was played. None of
this falls short of prevailing professional norms.
Pre-trial investigation. Cowans raises three ineffective-assistance claims
predicated on his counsel’s failure to pursue alternative pre-trial investigations, namely:
not testing biological evidence at the crime scene, not challenging the palm print
identification and not requesting expert funds to assist with these forensic matters.
While the parties skirmish over whether Cowans procedurally defaulted these claims by
failing to raise them on direct appeal, Cowans, 1999 WL 699870, at *7–8, the point
makes no difference here as they each fail on the merits.
Biological Evidence. A crime scene technician discovered blood on the floor
near Swart’s body and on her coat and took swabs of the samples. Later DNA testing
(in the federal habeas proceeding) revealed the blood was not from Cowans and that
Swart could “not be eliminated as the source” of the blood. Cowans argues his trial
counsel should have ordered these tests. Yet, at the time of counsel’s investigation,
counsel reasonably could have decided not to focus on this evidence, which was not part
No. 08-4393 Cowans v. Bagley Page 12
of the State’s case against his client. The prosecution never introduced any evidence (or
any theory of the crime) that Swart bled during the attack. Nor did the State contend that
Swart’s assailant bled or left any biological evidence at the scene other than a palm print
in the kitchen. Swart was an older woman when she died by strangulation, and there was
never any indication of a struggle or a link between the blood on her coat and the
perpetrator. “An attorney can avoid activities that appear ‘distractive from more
important duties,’” Richter, 131 S. Ct. at 789, and Cowans’ counsel may have done just
that. As the Court recently explained:
It is only because forensic evidence has emerged concerning the source
of the blood pool that the issue could with any plausibility be said to
stand apart. Reliance on “the harsh light of hindsight” to cast doubt on
a trial that took place now more than 15 years ago is precisely what
Strickland and AEDPA seek to prevent.
Id.
Of equal significance, Cowans has not established that he was prejudiced by his
counsel’s purported failure because the significance of the biological evidence is far
from clear. The State initially collected blood stains from the kitchen floor, Swart’s
housecoat and Swart’s nightgown. Testing revealed that the blood from the kitchen floor
and nightgown came from a female and that Swart could not be eliminated as the source.
The sample from Swart’s housecoat, however, had a mixture of female and male DNA,
and the lab results eliminated Cowans as the source of the male DNA. Nothing in the
lab results (or anything else) indicates how much blood was on the coat or, most
importantly, suggests the blood stain originated at the time of the murder. A blood
sample unconnected to the defendant does little in the context of a strangulation, in the
context of a murder containing no evidence that anyone bled and in the context of a
sample’s having no temporal proximity to the murder.
No reasonable probability exists that, if the jury had heard this ambiguous
evidence, the result of Cowans’ trial would have been different. Consider the evidence
against him: he confessed to his cell-mate that he murdered Swart and included non-
No. 08-4393 Cowans v. Bagley Page 13
public details in his confession. The police found items from Swart’s home in and
around Cowans’ house and found Cowans’ palm print in Swart’s home.
Palm Print. Cowans claims that trial counsel should have challenged the method
the police used to create the palm print and should have challenged whether the evidence
remained in the police’s chain of custody. As to the method, counsel did object, though
unsuccessfully, and as to the chain of custody, the Constitution does not require defense
counsel to pursue every imaginable trial strategy, whether likely to bear fruit or not. See
Engle v. Isaac, 456 U.S. 107, 134 (1982). “[E]xperienced trial counsel learn that
objections to each potentially objectionable event could actually act to their party’s
detriment” and thus often “use objections in a tactical manner.” Lundgren v. Mitchell,
440 F.3d 754, 774 (6th Cir. 2006). Cowans’ attorney made numerous objections during
trial, primarily to the evidence that he thought was the weakest—the dog-tracking video.
On this record, another objection to another piece of the State’s evidence, the palm print,
may have drawn the jury’s attention to the other, more reliable piece of evidence linking
Cowans to the crime. No precedent establishes that defense counsel must challenge the
chain of custody of a palm print identification or risk falling below the minimum
requirements of the Sixth Amendment. Cf. Richter, 131 S. Ct. at 788. This claim also
falters on the prejudice prong of Strickland. Cowans has not provided any evidence that
undermines the validity of palm print identifications or that raises a question about
whether the palm print in fact ever left the State’s custody or was in fact Cowans’.
Expert Funds. Cowans argues that trial counsel should have requested funds to
pay for experts to challenge this biological evidence. Cowans rests his claim on Ake v.
Oklahoma, 470 U.S. 68 (1985), which held that courts must provide a defendant access
to psychiatrists if the defendant’s sanity will be a significant factor at trial. For the
reasons noted, however, Cowans was not prejudiced by counsel’s decision not to request
these funds. The prosecution’s theory of the crime never related to the blood evidence
at the scene, so the expert’s findings at most would have been ancillary to the
prosecution’s case. And Cowans has not provided evidence questioning the validity of
No. 08-4393 Cowans v. Bagley Page 14
palm print identifications or raising a reasonable probability that an expert’s assistance
on that front would have changed the outcome.
E.
Ineffective assistance of appellate counsel. The standard for ineffective
assistance of appellate counsel mirrors the one governing the performance of trial
counsel. In order to prevail, Cowans must demonstrate that counsel’s performance fell
below an objective standard of reasonableness and that, but for counsel’s deficient
performance, there is a reasonable probability that the outcome of his appeal would have
been different. Goff v. Bagley, 601 F.3d 445, 462–63 (6th Cir. 2010). Because the state
court denied Cowans’ claims, Cowans, 812 N.E.2d 1286, he can prevail only if “there
was no reasonable basis for the state court to deny relief,” Richter, 131 S. Ct. at 784.
Unfortunately for Cowans, there was. In the context of claims premised on
counsel’s failure to raise certain issues on appeal, the question is whether the state courts
had any “reasonable basis” for concluding Cowans would not have prevailed if his
counsel had raised these issues on appeal. Id.; Goff, 601 F.3d at 462. Cowans faults his
appellate counsel for failing to raise five claims on direct appeal, namely trial counsel’s
failure (1) to ensure Cowans knowingly and voluntarily waived the presentation of
mitigating evidence; (2) to test blood evidence at the crime scene; (3) to challenge the
validity of a palm print identification and the State’s compliance with the chain-of-
custody requirement; (4) to request expert funds to assist in (2) and (3); and (5) to argue
that any death sentence would be arbitrary and capricious because the jury did not hear
mitigating evidence. We rejected claims (1), (2), (3) and (4) on the merits, and the state
courts could reasonably do the same. Appellate counsel’s failure to raise the fifth
issue—the challenge to his death sentence—did not prejudice Cowans because the Ohio
Supreme Court independently addressed and rejected this claim on direct appeal.
Cowans, 717 N.E.2d at 310.
III.
For these reasons, we affirm.
No. 08-4393 Cowans v. Bagley Page 15
___________________
CONCURRING
___________________
MERRITT, Circuit Judge, concurring. Based on the case presented to our court
here, I can find no arguable basis on which the writ could issue. The evidence that
Cowans intentionally murdered the defenseless old lady remains “beyond a reasonable
doubt” and admissible and so is the evidence that he knowingly decided to forbid his
lawyers from offering any mitigating evidence. Cowans’ behavior indicates that at the
sentencing hearing he was willing to commit suicide by offering no serious defense, plea
for mercy, or argument that his life should be spared. Both the trial judge and his
lawyers explained at length that his refusal to offer any mitigating proof probably would
lead to the death penalty. Other than this conduct, counsel has developed no evidence
that Cowans is retarded or unable to understand the charges against him. He was clearly
able to understand the probability that the failure to offer any reason for mercy would
lead to his death, but that is what he chose to do. There is no federal constitutional
prohibition of his execution under these circumstances. Therefore, I concur in the
court’s opinion.