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Pursuant to Sixth Circuit Rule 206

File Name: 11a0192p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT _________________

TRACY LYNN COWAN,

 Petitioner-Appellant,

v.

CLARICE STOVALL, Warden,

 Respondent-Appellee.

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No. 08-2338

Appeal from the United States District Court

for the Eastern District of Michigan at Detroit.

No. 06-13846—Robert H. Cleland, District Judge.

Argued: December 1, 2010

Decided and Filed: July 19, 2011 

Before: BATCHELDER, Chief Judge; ROGERS and KETHLEDGE, Circuit Judges.

_________________

COUNSEL

ARGUED: Evan B. Stephenson, WHEELER TRIGG O’DONNELL LLP, Denver,

Colorado, for Appellant. Mark G. Sands, OFFICE OF THE MICHIGAN ATTORNEY

GENERAL, Lansing, Michigan, for Appellee. ON BRIEF: Evan B. Stephenson,

WHEELER TRIGG O’DONNELL LLP, Denver, Colorado, for Appellant. Mark G.

Sands, OFFICE OF THE MICHIGAN ATTORNEY GENERAL, Lansing, Michigan,

for Appellee. 

KETHLEDGE, J., delivered the opinion of the court, in which ROGERS, J.,

joined. BATCHELDER, C. J. (pp. 9–10), delivered a separate dissenting opinion.

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OPINION

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KETHLEDGE, Circuit Judge. Tracy Cowan was charged with various drug

offenses in Michigan state court based on her presence in a house where the drugs were

found. Cowan did not own the house, and her defense was that she did not know the

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No. 08-2338 Cowan v. Stovall Page 2

drugs were there. But her lawyer at the time—who was high on cocaine for much of the

time he represented her—never interviewed any of the other people in the house or

called them as witnesses at trial. Cowan was eventually convicted of all the charges. 

Years later, she filed a pro se habeas petition in which she presented numerous claims.

One of them was that her trial lawyer was ineffective as a result of his failure to

interview the other people in the house. The district court held that Cowan had not

timely presented this claim, and thus did not consider it. We respectfully disagree with

the court as to whether Cowan timely presented her failure-to-interview claim, and to

that extent we remand the case; but we otherwise affirm.

I.

On September 26, 2002, the City of Farmington Hills Police Department

conducted a controlled buy of cocaine using a confidential informant. A dealer named

Tamir Bell took the informant to several locations during the buy, including a house on

Appoline Street in Detroit. Later that night, the police raided the house. Inside there

were six people: Cowan; her adult daughter, Crystal Cowan; her teenage daughter,

Rachel Carter; her teenage son, Richard Carter; her infant grandson; and Pappilon

Tucker, the teenage son of her ex-boyfriend, Rory Jones, who was himself an alleged

drug dealer. In a locked closet in the master bedroom, the police found 714 grams of

cocaine, a pound of marijuana, and two loaded firearms. In a locked pantry in the

basement, they found 800 grams of cocaine, scales, presses, and other dealer

paraphernalia. Although Cowan did not own the house and said she was only staying

there for the night, prosecutors later charged her with possession of the drugs and guns

that were found there. She had no criminal record at the time.

David Perlman took over as Cowan’s defense attorney four months before her

trial. He regularly used cocaine during the time he represented her, for which the

Michigan Attorney Grievance Commission later suspended his law license.

At trial, Perlman’s defense theory was that Cowan had not been present in the

house during the controlled buy and knew nothing about the drugs there. Instead,

Perlman argued, Cowan had gone to the house that night to visit her children and then
No. 08-2338 Cowan v. Stovall Page 3

had fallen asleep. Although Perlman knew that Cowan’s children had been in the house

that night, and thus that they potentially could have corroborated her story, he never

interviewed them or called them as witnesses at trial. Instead, as his sole witness,

Perlman called a personal investigator who testified primarily about the house’s layout

and how the drugs were hidden in the basement.

The jury convicted Cowan on all counts. She was sentenced to a minimum of

20 years for possessing the cocaine, 2 years for possessing the firearms, and 6 months

for possessing the marijuana, all to be served consecutively. She reported to prison in

2003.

Cowan filed a direct appeal with the help of a new lawyer. She challenged her

conviction on several grounds, including that her trial counsel was constitutionally

ineffective. The Michigan Court of Appeals rejected her arguments. People v. Cowan,

No. 250838, 2005 WL 119811 (Mich. Ct. App. Jan. 20, 2005). She sought leave to

appeal from the Michigan Supreme Court, which denied her request. People v. Cowan,

702 N.W.2d 579 (Mich. 2005) (table).

Cowan thereafter filed a pro se habeas petition in federal court. She asserted

numerous claims, including that Perlman was ineffective for failing to interview “willing

and available” witnesses who “would have supported Petitioner’s defense that she was

not present during the [drug] transaction.” Cowan later filed a motion to amend her

petition, in which she spelled out in greater detail the witnesses whom Perlman had

ignored and the substance of what their testimony would have been. The district court

denied the motion. Cowan also moved for an evidentiary hearing, which the district

court denied. The court then denied her petition. Cowan moved for reconsideration,

attaching sworn affidavits from the uncalled witnesses to the effect that Cowan had

known nothing about the drugs. The district court denied that motion as well.

The district court denied Cowan permission to appeal. She asked this court for

a certificate of appealability, which we granted only with respect to her ineffectiveassistance claim.
No. 08-2338 Cowan v. Stovall Page 4

II.

We review de novo the district court’s denial of habeas relief. Maples v. Stegall,

340 F.3d 433, 436 (6th Cir. 2003).

A.

Cowan argues, among many other things, that we should remand her case with

instructions to grant the writ based upon Perlman’s failure to interview the other people

in the house where the drugs were found. The district court did not reach the merits of

this claim because it thought the claim was not timely presented. We consider that issue

first.

The habeas statute imposes a one-year limitations period on habeas applications

by state prisoners. See 28 U.S.C. § 2244(d). But Fed. R. Civ. P. 15(c)(1) as applied in

habeas cases creates an exception to that rule: when a prisoner files an original petition

within the one-year deadline, and later presents new claims in an amended petition filed

after the deadline passes, the new claims relate back to the date of the original petition

if the new claims share a “common core of operative facts” with the original petition.

Mayle v. Felix, 545 U.S. 644, 664 (2005).

Here, Cowan filed her original petition within the one-year limitations period.

According to the district court, however, Cowan’s original petition did not include an

ineffective-assistance claim based on Perlman’s failure to interview the other people in

the house. Later, after the one-year limitations period had passed, Cowan moved to file

an amended petition that clearly did include a failure-to-interview claim. But the district

court thought that claim was based on facts that “differ[ed] in both time and type” from

the facts set forth in her original petition. Thus the claim would not relate back to the

date of the original petition, which in turn meant the claim would be untimely. The

district court therefore denied leave to file the claim.

Thus, the linchpin of the district court’s refusal to consider Cowan’s failure-tointerview claim was that it did not share a common core of operative facts with Cowan’s
No. 08-2338 Cowan v. Stovall Page 5

original petition. That is the question we focus on now. In her original petition, Cowan

alleged as part of her ineffective-assistance claim:

Defense counsel failed to investigate the case and if counsel had

investigated the case, he would have found the testimony of witnesses

[that] would have helped Petitioner’s case substantially. The witnesses

were willing and available. Because counsel does not know what an

investigation will reveal is no reason not to conduct the investigation.

Counsel’s failure [to investigate thoroughly] was not sound trial strategy.

Interview of witnesses would have supported Petitioner’s defense that

she was not present during the [drug] transaction. Lack of investigation

restricts counsel’s ability to make reasonable professional judgments, and

deprived Petitioner of a substantial defense, and the effectiveness of

assistance of counsel.

Petition at 10 (emphasis added). Cowan also attached a “memorandum” to her petition

in which she argued that Perlman had failed to interview “alibi witnesses.”

In her motion to amend, Cowan described the witnesses whom Perlman could

have interviewed, and how they could have shown that she had been away from the

house all day and had arrived there only after the controlled buy was over. She

concluded by stating that she had “provided her trial attorney with a list of witnesses

who could verify her whereabouts and thus defense theory, as explained above. Counsel

failed to interview any of the witness[es] and did not raise the alibi defense,” which she

said was “partially predicated on the theory that while Ms. Cowan was away from the

house, her former boyfriend [Rory Jones] brought the narcotics to the house and stashed

it.”

Cowan expressly asserted in both documents, therefore, that Perlman should have

interviewed witnesses who could have testified to her whereabouts on the date of the

controlled buy. The motion to amend merely added more detail with respect to who the

witnesses were and what they would say. The facts recited in the two documents

differed not in kind, but in specificity. In that respect her case is similar to Mandacina

v. United States, 328 F.3d 995 (8th Cir. 2003), which the Supreme Court in Mayle

expressly cited as a case where relation-back was proper. As the Supreme Court

explained it, in Mandacina “the original petition alleged violations of Brady v.
No. 08-2338 Cowan v. Stovall Page 6

Maryland, while the amended petition alleged the Government’s failure to disclose a

particular report.” Mayle, 545 U.S. at 664 n.7 (citation omitted). This case is similar:

Cowan’s initial petition alleged that Perlman failed to interview witnesses who could

have supported her defense theory, while her amended petition set forth certain

particulars of that claim. Thus, even if one assumes that her original petition did not

state a failure-to-interview claim—and we have our doubts about that assumption—her

failure-to-interview claim as set forth in her motion to amend did share a common core

of operative facts with her original petition. And that means the claim would have

related back to the date of the original petition, which means it would have been timely.

See Mayle, 545 U.S. at 664.

That said, we hardly fault the district court for failing to match up the factual

bases of Cowan’s amended claim and those of her original petition. The court had the

unenviable task of sifting through a formidable mass of pro se allegations, most of which

were meritless. But ultimately the basis on which the district court denied Cowan’s

motion was incorrect; and, as shown below, we otherwise think that Cowan’s failure-tointerview claim is anything but frivolous. Her motion to amend should have been

granted.

It does not follow, however, that we can grant Cowan the relief she now seeks.

As the Warden correctly points out, Cowan has not presented her failure-to-interview

claim to the Michigan state courts. (She did present some other theories of ineffective

assistance there, but not a failure-to-interview one. See generally Caver v. Straub, 349

F.3d 340, 346-47 (6th Cir. 2003).) Cowan can still present this claim in the Michigan

courts by filing a motion for relief from judgment. See M.C.R. 6.502. Thus, the claim

is unexhausted and we cannot grant relief on it. See Wagner v. Smith, 581 F.3d 410, 419

(6th Cir. 2009). Cowan must present this claim to the state courts before she can obtain

any relief on it in the federal courts.

 In the meantime we must decide what to do with this claim. If the claim were

plainly meritless, we could reject it now. Id. But it is not plainly meritless. Cowan’s

claim is that her lawyer was ineffective as a result of his failure to interview at least four
No. 08-2338 Cowan v. Stovall Page 7

other witnesses who were in the Appoline house on the date of the controlled buy and

raid. That omission itself amounted to patently deficient performance on her lawyer’s

part. And we think it only common sense that the prejudice that flowed from that

omission comprises all of the testimony that the record suggests those witnesses would

have offered. The record is not fully developed before us, in part because the claim is

unexhausted. But the record does include sworn affidavits from four witnesses whom

Perlman should have interviewed. Those affidavits suggest that at least two

witnesses—one of whom was Rory Jones’s son—would have testified that Cowan had

been absent not only during the controlled buy, but also when Jones allegedly stashed

the drugs in the house that same day. See Tucker Aff. ¶ 6; Richard Carter Aff. ¶ 5. The

latter affidavit also says that Cowan became upset with Jones on one occasion when he

left drugs in the house. Id. ¶ 7. Further development of the claim may yield additional

relevant testimony. None of this is to say, of course, that Cowan’s claim is actually

meritorious; that issue is for the state courts to decide, at least in the first instance. But

it is to say that we should not dismiss the claim out of hand as frivolous. Even the

Warden conceded at oral argument before us that we should remand the claim, rather

than dismiss it outright, if we held that it was timely presented and unexhausted—and

now we have so held.

So two options remain: first, dismiss the claim without prejudice while Cowan

pursues it in state court, in which case the claim might be time-barred if she later returns

with it to federal court, see 28 U.S.C. § 2244(d); or second, stay her petition (which now

comprises only this claim) and hold it in abeyance while she returns to state court. See

Wagner, 581 F.3d at 419. Under that approach Cowan could return later to federal court

for a ruling on the merits of this claim if the state courts deny relief on it.

Given the nature of the claim here, it is hard to disagree with the road map laid

out in Wagner: if “Petitioner can show good cause for failing to present th[is] claim[]

to the state court in the first instance, we see no reason why the district court should not

grant a ‘stay and abeyance’ while Petitioner exhausts in state court[.]” Id. (quoting
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Rhines v. Weber, 544 U.S. 269, 277 (2005)). In any event, we remand the claim so that

the district court can decide in the first instance what to do with it.

B.

Cowan also asks us to grant the writ on yet another theory of ineffective

assistance, namely, that Perlman failed to discover other exculpatory evidence that came

to light during the trial of Tamir Bell. See People v. Bell, No. 282222, 2009 WL

1027462 (Mich. Ct. App. Apr. 16, 2009). Cowan says she first learned of the Bell

evidence, as she calls it, while this appeal was pending. But the fact remains that Cowan

has never presented this claim to the state courts, or even the district court. So we

cannot grant relief on it.

Alternatively, Cowan asks for permission to file a second or successive petition

to present this claim in the district court. For us to grant her request, she must show that

her new evidence, considered together with the evidence presented at her trial, “would

be sufficient to establish by clear and convincing evidence that, but for constitutional

error, no reasonable factfinder would have found [her] guilty of the underlying offense.”

28 U.S.C. § 2244(b)(2)(B)(ii). Cowan says the Bell evidence exonerates her because it

shows that her ex-boyfriend, Rory Jones, controlled the drugs that were found in the

house on Appoline Street. But the State contended in both her trial and Bell’s that

Cowan and Jones acted in concert. The Bell evidence does not refute that theory. Nor

does it affirmatively show that Cowan was unaware that the drugs were in the house.

After carefully reviewing the record, therefore, we conclude that the Bell evidence does

not establish by a clear and convincing margin that no reasonable jury could find Cowan

guilty. We therefore do not grant her permission to file a second petition to present this

claim.

* * *

The district court’s judgment is affirmed in part and reversed in part, and the case

remanded for further proceedings consistent with this opinion.
No. 08-2338 Cowan v. Stovall Page 9

1

Cowan states this claim in her habeas petition as: “Interview of witnesses would have supported

Petitioner’s defense that she was not present during the [d]rug transaction.”

___________________

DISSENT

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ALICE M. BATCHELDER, Chief Judge, dissenting. The majority asserts that

Cowan’s trial counsel “should have interviewed witnesses who could have testified to

her whereabouts at the time of the controlled buy,”1

 and holds that her “failure-tointerview claim is anything but frivolous.” I must respectfully disagree. Her claim is

frivolous.

The prosecutor charged Cowan with four counts: possession with intent to

deliver more than 650 grams of cocaine, possession with intent to deliver marijuana, and

two counts of felony firearm possession. The case was tried to a jury and the

prosecutor’s theory was that, while Cowan herself may not have been an active “drug

dealer,” the Appoline house was a “stash house” for another drug dealer and Cowan was

a participant inasmuch as she had possession of (dominion and control over) the

contraband — it was in her house, she knew it was there, and she acquiesced. The

prosecutor played the video of her interview for the jury, in which she stated that she had

dominion and control over the house, the locked rooms, and everything therein. Officers

testified to finding Cowan’s belongings and mail in the house, further demonstrating that

it was her house. Officers also testified about the appearance and location of the

contraband, which demonstrated that she must have known what it was, that it was there

in her house, and that it was being packaged for distribution. The prosecutor established

that Cowan lived in the house at least sometimes (e.g., on the night of the raid), but had

not notified the police or taken any measures to remove or destroy the contraband.

The fact that she was not present at the time of the controlled buy is not relevant

to her conviction. The prosecutor announced this prior to trial, during a preliminary

hearing, stating: “But we don’t have to prove that she specifically handed cocaine to an

individual on a specific instance in order for her to be found to . . . .” Whereupon the
No. 08-2338 Cowan v. Stovall Page 10

trial court interrupted: “I’m satisfied she has dominion and control over the house to the

exclusion of Rory whatever his name is, because there’s no demonstration he had any

right to the property except as a guest.” And, at trial, the prosecutor was very clear in

her closing argument:

You are also going to hear that anybody who helps another in

possessing with the intent to distribute is just as guilty as the person who

distributes it. So the defense may say we — you don’t have any evidence

that this defendant delivered narcotics, and you know what? We don’t

have any evidence that this defendant delivered narcotics, but this

defendant is not charged with delivering narcotics. This defendant is

charged with the intent to distribute or knowing somebody else is going

to distribute the narcotics.

Let’s talk about why you know that this defendant knew that

those drugs were in her house, that she had absolute right and control

over the entire house[.]

Suppose defense counsel had produced witnesses — very persuasive witnesses

— to testify that Cowan was not present during the controlled buy. That would not have

changed the outcome of her trial, inasmuch as that was not an aspect of the crime for

which she was charged. Consequently, her claim is frivolous and there is simply no

basis for the majority’s stay and abeyance.

I must respectfully dissent.