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Cowherd v. Dooley

United States District Court, D. South Dakota, Western Division

May 2, 2019

RANDY COWHERD, Petitioner,
v.
BOB DOOLEY, WARDEN, SDSP; AND ATTORNEY GENERAL FOR THE STATE OF SOUTH DAKOTA, Respondents.

          ORDER

          VERONICA L. DUFFY UNITED STATES MAGISTRATE JUDGE.

         INTRODUCTION[1]

         This matter is before the court on Randy Cowherd's petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Mr. Cowherd is currently incarcerated at the South Dakota State Penitentiary in Sioux Falls, South Dakota. This matter was referred to this magistrate judge pursuant to 28 U.S.C. § 636(b)(1)(B) and the October 16, 2014, standing order of the Honorable Jeffrey L. Viken, Chief United States District Judge.

         FACTS

         Mr. Cowherd was convicted of driving while intoxicated in Pennington County, South Dakota, on February 24, 2016. See State v. Randy L. Cowherd, File No. 51 CR 15-004050, (Seventh Judicial Circuit, Pennington County, South Dakota); Docket 7-1, p. 12. Mr. Cowherd subsequently admitted to five prior DWI convictions as alleged in the Part II habitual offender information which had been filed by the state. Docket 7-2. On April 5, 2016, the trial court, the Honorable Robert Guisinsky presiding, sentenced Mr. Cowherd to ten years' imprisonment in the South Dakota State Penitentiary, with four years suspended. Docket Nos. 7-3; 7-10.

         Mr. Cowherd filed a direct appeal. Docket 7-4. Mr. Cowherd's trial counsel did not believe there were any arguably meritorious issues for appeal, but did assist Mr. Cowherd in submitting a Korth[2] brief to the South Dakota Supreme Court. Docket 7-4. On direct appeal, Mr. Cowherd raised the following issues:

1. Mr. Cowherd asked trial counsel to obtain the security video from the bar where he (Cowherd) had been drinking the night of his DWI arrest to show proof of his alcohol intake, but counsel did not procure the video. Counsel also did not procure an independent blood alcohol expert.
2. After Mr. Cowherd's first attorney quit and he was appointed a public defender, his request for an alternate representation was denied;
3. Mr. Cowherd's public defender failed to obtain an independent blood alcohol expert;
4. Mr. Cowherd's public defender failed to adequately cross-examine the state's blood alcohol expert at trial and failed to adequately question Mr. Cowherd and/or object to the state's cross-examination of Mr. Cowherd;
5. Mr. Cowherd's trial counsel refused to file a direct appeal, forcing Mr. Cowherd to file a pro se direct appeal.

Id.

         On March 27, 2017, the South Dakota Supreme Court summarily affirmed Mr. Cowherd's conviction. Docket 7-5.

         On September 26, 2017, Mr. Cowherd filed his first pro se petition for habeas corpus in state court.[3] Docket 7-6. Since then, on February 8, and February 26, 2018, Mr. Cowherd filed amended pro se petitions for habeas corpus in state court. Dockets 7-8 and 7-9. ...


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