Cohen v. Covello

Background

Daniel Cohen petitioned under 28 U.S.C. § 2254, the federal law allowing a state prisoner to challenge custody that violates federal law. He challenged his state conviction for first-degree murder, the finding that the murder was committed while lying in wait, and a firearm enhancement. The state proceedings had ended with the California Court of Appeal affirming the judgment and denying habeas relief, followed by the California Supreme Court’s denial of review.

The state-court record described evidence that Gordon Smith was shot four times at his office. Police found four spent bullet casings and a revolver in a storage unit rented to Cohen; forensic testing connected the revolver to the bullets, and Cohen’s fingerprints were on the gun. DNA from a blood spot on Cohen’s shoe matched Smith’s DNA. The opinion states that a jury found Cohen guilty and that he received life without the possibility of parole, plus a consecutive 25-years-to-life firearm-enhancement term.

Ineffective Assistance of Counsel

Cohen argued that his trial counsel provided ineffective assistance by failing to investigate mental-health defenses after consulting Dr. Harvey Dondershine. Cohen asserted that further investigation, including obtaining medical and psychiatric records and consulting an expert, could have supported defenses involving a shared delusion, a dissociative state, impaired premeditation, imperfect defense of another, or insanity.

Under the two-part test for ineffective assistance of counsel, a petitioner must show that counsel’s performance fell below an objective standard of reasonableness and that the deficient performance probably affected the result. Applying the deferential federal standard for reviewing state-court decisions, the court held that counsel’s failure to obtain Cohen’s medical and psychiatric records was deficient performance. The court reasoned that the record contained evidence of possible mental-health problems and that counsel could not make an informed decision about further investigation without the records.

The court nevertheless denied relief on this claim because Cohen failed to show prejudice. The medical and psychiatric records were before the state court, but no expert had interpreted them in the record. The court therefore could not determine whether the records would have supported an insanity or other mental-health defense or otherwise created a reasonable probability of a different outcome. The court concluded that the state court’s denial of the claim was not contrary to, or an unreasonable application of, clearly established federal law, and was not based on an unreasonable factual determination.

Request for Funds for a Mental-Health Expert

Cohen also argued that the state court violated his constitutional rights by denying his request for funds for an expert to review his medical, psychiatric, and Social Security records and provide an opinion. He relied on Supreme Court decisions recognizing a right to mental-health assistance at trial when a defendant’s mental condition is relevant.

The court agreed with the respondent that those decisions did not clearly establish a right to a mental-health expert on appeal or in collateral review. Because there was no clearly established federal right to such an expert during an appeal, the court held that the state court’s denial of this claim was not contrary to, or an unreasonable application of, clearly established federal law. The court denied federal habeas relief on this claim as well.

Disposition

Judge Jon S. Tigar denied the petition for a writ of habeas corpus and denied a certificate of appealability. The court directed the clerk to enter judgment for the respondent and close the file.