                  NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                            File Name: 08a0051n.06
                            Filed: January 15, 2008

                                             No. 06-5610

                           UNITED STATES COURT OF APPEALS
                                FOR THE SIXTH CIRCUIT


JOHNNY COWHERD,                                     )
                                                    )
        Petitioner-Appellant,                       )
                                                    )
v.                                                  )   ON APPEAL FROM THE UNITED
                                                    )   STATES DISTRICT COURT FOR THE
GEORGE MILLION,                                     )   EASTERN DISTRICT OF KENTUCKY
                                                    )
        Respondent-Appellee.                        )




        Before: DAUGHTREY and GILMAN, Circuit Judges; EDMUNDS,* District Judge.


        PER CURIAM. The petitioner, Johnny Cowherd, is an inmate in the Kentucky prison

system, following his conviction in state court on two counts of rape, four counts of

sodomy, and one count of second-degree burglary. Faced with a resulting sentence of 104

years, he filed this action in federal district court, seeking issuance a writ of habeas corpus.

In his habeas petition, Cowherd contended that the lengthy sentence was

unconstitutionally disproportionate to the crimes he committed, that he was improperly

subjected to multiple convictions and multiple punishments for the same offense, and that

his trial attorney provided him with ineffective assistance of counsel. The district court




        *
          The H on. Nancy G. Edm unds, United States District Judge for the Eastern District of Michigan,
sitting by designation.
No. 06-5610
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denied relief, and the petitioner now appeals that order. For the reasons set out below, we

affirm.




                      I. FACTUAL AND PROCEDURAL BACKGROUND


          The appellate record filed in this case does not include a copy of the transcript from

the petitioner’s trial in state court. According to the brief that Cowherd filed in his direct

appeal to Kentucky’s highest state court, however, the following facts were established at

trial:


          [Cowherd] came to stay with [Edna Galbreath and her boyfriend, Jeff,] six or
          seven times. . . . On April 6th[, 1993, while Jeff was in jail], after Galbreath
          had put her son[, DeAngelo,] in bed, [Cowherd] allegedly grabbed her from
          behind and put a box cutter to her throat. When she asked what he was
          doing, [Cowherd] allegedly replied, “Bitch, shut up.” When she asked again,
          he allegedly replied, “Bitch, I will kill you and DeAngelo.” He then threw her
          on the bed and tied her hands together with electrical cord he had cut off her
          curling iron. He next took off her pants and panties and cut off her shirt with
          the boxcutter. He tore off her brassiere. He then began to have sex with
          her. She tried to fight him off with her feet, but he cut the cord off a radio
          and tied her feet together. Then, according to Galbreath, the appellant rolled
          her over and put his penis in her rectum. He then put his penis in her mouth.
          Leaving her tied up in the bed, [Cowherd] went into the kitchen and cooked
          a hamburger. He then got money out of her purse and left the apartment.
          Before she could get loose, he returned. By then she had gotten her hands
          loose. She put her hands behind her back, but he saw that her hands were
          loose. He retied them with cord he cut off the fan. She then saw that
          [Cowherd] had bought some cocaine with her money. He smoked the
          cocaine. He blew the smoke into her face and tried to get her to inhale it.
          He then left the room and ate some potted meat. When he returned, he “did
          it all over again.” He kept saying, “Bitch, you better make me feel good. You

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       better make me come.” [Cowherd] also kept saying, “Jeff thinks he’s got this.
       Jeff thinks he’s got that.” According to Galbreath, [Cowherd] then had
       vaginal and rectal intercourse with her. He then put his penis in her mouth.
       He told her to “lick his asshole and then his balls.” He then told her to suck
       his penis again. Galbreath felt something coming out of her and saw that it
       was blood. She thought she was having a miscarriage. [Cowherd] saw the
       blood, but it didn’t stop him.
       [Cowherd] told Galbreath to go to sleep. He put on Jeff’s sweatpants and
       began to walk around. He then got into bed beside her and went to sleep
       with the boxcutter in his hand.


       Eventually, Galbreath escaped with DeAngelo from her own apartment and

appeared, crying, at the door of a neighbor who contacted the police. At that time, the

neighbor noticed that Galbreath’s wrists were swollen and that “her mouth was ‘swollen up

real bad’ from being gagged.” When the police arrived at the neighbor’s apartment, they

“found [the] victim crying on the sofa,” claiming to have been raped by Cowherd. The

petitioner was subsequently apprehended by the police as he walked out of Galbreath’s

apartment, and an examination of the alleged crime scene revealed “cut wires and chairs

in front of [the] door” and a boxcutter “in the bed under a pillow.”


       Additional trial testimony was offered by Dr. Anita Rogers, the emergency room

physician who examined Galbreath based upon the victim’s report that she had been

raped. In his brief filed in the state supreme court, Cowherd summarized her testimony as

follows:


       According to Rogers, Galbreath had no bruises on her face or abdomen.
       She did see remnants of tape on Galbreath’s left cheek. She saw no bruises
       on Galbreath’s abdomen or back. She did observe abrasions and bruises

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       on Galbreath’s ankles and wrists. According to Rogers, Galbreath had
       moderate swelling of her external genitalia. Their [sic] was no swelling of
       Galbreath’s vagina. Sperm were present. There was a 1 centimeter
       laceration at the 6:00 o’clock area of Galbreath’s rectum.


Cowherd testified on his own behalf and admitted to engaging in anal, oral, and vaginal sex

with Galbreath. The petitioner insisted, however, that all such acts were consensual and

that Galbreath was tied with cords only because the two adults agreed “to have sex with

bondage.”




       The jury obviously credited the testimony of Galbreath and prosecution witnesses

because it returned guilty verdicts on all counts. In accord with Kentucky practice, the

jurors then offered their recommendation that the petitioner be sentenced to 16 years in

prison on each of the two rapes (vaginal intercourse) and 18 years in prison on each of the

four sodomy charges (anal and oral sex). They further recommended that all such

sentences be served concurrently, yielding an effective prison sentence of 18 years. The

trial judge disregarded that recommendation, however, and ordered the six sentences for

sexual offenses to be served consecutively, resulting in a prison term of 104 years.


       Cowherd’s attempts to overturn his convictions and sentence on both direct appeal

and through state post-conviction proceedings were unsuccessful, leading him to file this

habeas action in federal district court. Initially, the district court dismissed that petition as

untimely. In so ruling, the court recognized that the federal filing occurred within one year

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of the dismissal of Cowherd’s second state post-conviction petition. However, the court

held that because the state-court action had not included a federal constitutional claim, the

statute-of-limitations period created by the Antiterrorism and Effective Death Penalty Act

of 1996 (AEDPA), Pub. L. No. 104-132, 110 Stat. 1214 (1996), was not tolled during the

pendency of the state post-conviction proceedings. A panel of this court affirmed that

dismissal. See Cowherd v. Million, No. 02-5499, 2003 WL 22114021 (6th Cir. Sept. 10,

2003). Subsequently, however, the Sixth Circuit, sitting en banc, vacated the panel

decision, granted rehearing, unanimously overruled the prior circuit precedent upon which

the original panel opinion had been based, and remanded the matter to the district court

for whatever proceedings were necessary in order to render a decision on the merits of

Cowherd’s habeas corpus petition.

See Cowherd v. Million, 380 F.3d 909 (6th Cir. 2004).


       Upon that remand, the matter was referred to a magistrate judge who issued a

report and recommendation suggesting that the 104-year prison sentence was not

constitutionally disproportionate to the crimes committed, that the multiple convictions did

not contravene double jeopardy principles, and that Cowherd’s trial attorney did not provide

him with ineffective assistance of counsel. The district judge adopted the report and

recommendation in its entirety and denied the habeas corpus petition.


                                     II. DISCUSSION


A. Standard of Review

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       Cowherd filed his petition for issuance of the writ of habeas corpus on June 11,

2001, well after the April 24, 1996, effective date of AEDPA. Consequently, the provisions

of that act govern the resolution of this dispute. See Lindh v. Murphy, 521 U.S. 320, 336

(1997); Greer v. Mitchell, 264 F.3d 663, 671 (6th Cir. 2001). Pursuant to the provisions of

AEDPA, a federal court may not grant the writ unless the state court adjudication on the

merits either:


       (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 upon an unreasonable
       determination of the facts in light of the evidence presented in the State court
       proceeding.


28 U.S.C. § 2254(d).


       As explained by the United States Supreme Court in Williams v. Taylor, 529 U.S.

362, 412-13 (2000):


       Under the “contrary to” clause, a federal habeas court may grant the writ if
       the state court arrives at a conclusion opposite to that reached by this Court
       on a question of law or if the state court decides a case differently than this
       Court has on a set of materially indistinguishable facts. Under the
       “unreasonable application” clause, a federal habeas court may grant the writ
       if the state court identifies the correct governing legal principle from this
       Court’s decisions but unreasonably applies that principle to the facts of the
       prisoner’s case.




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In deciding whether a state court ruling involved an “unreasonable application” of federal

law, a habeas court does not focus merely upon whether the state court decision was

erroneous or incorrect; rather, a federal court may issue a writ of habeas corpus only if the

state court’s application of clearly-established federal law was objectively unreasonable.

See id. at 409-11. Furthermore, “[t]his court reviews a district court’s legal conclusions in

a habeas proceeding de novo and its factual findings for clear error.” Greer, 264 F.3d at

671 (citing Lucas v. O’Dea, 179 F.3d 412, 416 (6th Cir. 1999)).


B. Constitutionality of 104-Year Sentence


       Cowherd asserts that the 104-year prison sentence imposed upon him is so grossly

disproportionate to the crimes he committed that it violates the proscription of the Eighth

Amendment to the United States Constitution against cruel and unusual punishment.

Specifically, he argues that the jury recommended a sentence of only 18 years and, thus,

the state trial court’s decision to run his six sentences consecutively so as to result in a

sentence almost six times as long should be considered unreasonable, especially when

viewed in relation to the sentence he could have received under the United States

Sentencing Guidelines.


       As we noted in United States v. Marks, 209 F.3d 577, 583 (6th Cir. 2000), however,

“[t]he Supreme Court has determined that strict proportionality between a crime and its

punishment is not required.” (Citing Harmelin v. Michigan, 501 U.S. 957, 959-60 (1991)



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(upholding a sentence of life without parole for possession of more than 650 grams of

cocaine)). Instead, “[t]he Supreme Court has articulated a ‘narrow proportionality principle’

whereby it held that only ‘extreme sentences that are grossly disproportionate to the crime

are prohibited.’” United States v. Flowal, 163 F.3d 956, 963 (6th Cir. 1998) (quoting

Harmelin, 501 U.S. at 995-97). In implementing this “narrow proportionality principle,” the

Sixth Circuit has recognized that “only an extreme disparity between crime and sentence

offends the Eighth Amendment.” Marks, 209 F.3d at 583.


       No such “extreme disparity” exists in this situation. The petitioner readily admits that

the jury’s recommended sentence of 18 years for a rape or for sodomy would not be

constitutionally suspect and falls within the applicable statutory sentencing ranges for the

Class B felony offenses of rape in the first degree, see K.R.S. § 510.040(2), and sodomy

in the first degree, see K.R.S. § 510.070(2). See also K.R.S. § 532.020(1)(c) (setting the

penalty for Class B felonies at “[a]t least ten (10) but not more than twenty (20) years).”

In this case, Cowherd committed six separate acts that each constituted a prohibited

sexual offense. See, e.g., Van Dyke v. Commonwealth, 581 S.W.2d 563, 564 (Ky. 1979)

(Kentucky legislature “intended to punish each separate act of rape or sodomy” where

“evidence clearly discloses . . . three distinct offenses [of] rape, sodomy and a second rape

when [the defendant] penetrated [the victim’s] vagina to accomplish the first act of

intercourse, penetrated her mouth to accomplish the act of sodomy, and thereafter

penetrated her vagina to accomplish the second act of intercourse”). Unlike a situation in

which one crime (for example, a rape) occurs during the pendency of another (for example,

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Cowherd v. Million

a burglary), Cowherd serially committed the six violent offenses, even taking time after the

commission of three of the offenses to cook and eat a meal before resuming his criminal

acts. Moreover, each of the offenses was accompanied by physical restraint of the victim

and by the threat of imminent use of force.


        Had Cowherd imposed himself sexually upon the victim only briefly, only once, and

under different circumstances before ceasing his violent, criminal activities, the lengthy,

104-year sentence might have been more difficult to justify. However, because the

petitioner continued to restrain the victim by binding her hands and legs throughout the

ordeal, because Cowherd maintained his dominant position in the encounter through the

continued threat of deadly force, and because he refused to avail himself of the opportunity

to end the assaults, but instead engaged in repeated prohibited acts, the state court

determination that the 104-year prison sentence did not create “an extreme disparity

between crime and sentence” was neither contrary to nor an unreasonable application of

clearly established federal law as determined by the United States Supreme Court.1


        In his appellate brief, Cowherd also intimates that the lengthy prison term imposed

upon him must be considered disproportionate to the crimes committed because, had he

been punished under the federal sentencing guidelines, his incarceration would likely have

lasted only 188 to 210 months. The Supreme Court has not, however, ever held or

        1
         Further inform ing our conclusion that the 104-year sentence does not create “an extrem e disparity
between crim e and sentence” is the representation of the warden’s counsel at oral argum ent that Cowherd
m ay be eligible for parole after serving 20 years of his sentence, and possibly as early as the spring of 2008.



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suggested that state sentences and federal sentences must approximate each other in

order to pass constitutional muster. Similarly, we recently rejected an argument that a

federal sentence was unreasonable simply because it provided for a lengthier period of

imprisonment than did applicable state sentencing principles. See United States v.

Malone, 503 F.3d 481, 485-86 (6th Cir. 2007). Instead, the Malone panel joined other

circuits in holding that the requirement in 18 U.S.C. § 3553(a)(6) that district judges

consider unwarranted disparities in sentences refers only to disparities in sentences

imposed upon federal defendants and not those that may exist between federal and state

court sentences. See id. at 486. Because of the parallel, non-intersecting nature of the

state and federal criminal justice systems and sentencing frameworks, the petitioner is not

entitled to relief based on this argument.




C. Double Jeopardy Considerations


       In pertinent part, the Fifth Amendment to the United States Constitution provides

that no person shall “be subject for the same offence [sic] to be twice put in jeopardy of life

or limb.” Petitioner Cowherd now contends, however, that he was in fact convicted multiple

times for the same crime. In support of that argument, he notes that counts 1 and 2 of the

indictment returned against him “are identical charges of first degree rape, and counts 3

through 6 are identical charges of first degree sodomy.” In fact, both counts 1 and 2 did

read identically, charging that “[o]n or about the 6th day of April, 1993, in Fayette County,

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Kentucky, the above named Defendant committed first degree rape by forcing Edna

Galbreath to engage in sexual intercourse by forcible compulsion.” Similarly, counts 3, 4,

5, and 6 each charged that “[o]n or about the 6th day of April, 1993, in Fayette County,

Kentucky, the above named Defendant committed first degree sodomy by engaging in

deviate sexual intercourse with Edna Galbreath by forcible compulsion.”


       Such poorly-drafted indictments present at least two potential double jeopardy

problems: (1) the possibility that insufficient specificity in the indictment would not enable

Cowherd “to plead convictions or acquittals as a bar to future prosecutions”; and (2) the

possibility that the undifferentiated counts would subject Cowherd “to double jeopardy in

his initial trial by being punished multiple times for what may have been the same offense.”

Valentine v. Konteh, 395 F.3d 626, 634-35 (6th Cir. 2005). Unlike the situation presented

in Valentine, however, the trial evidence adduced in the proceedings against Cowherd

cured any defects in the indictment’s drafting. In Valentine, the defendant was charged

with 20 identically-worded counts of child rape and 20 identically-worded counts of

felonious sexual penetration, all occurring at some unspecified time between March 1,

1995, and January 16, 1996. See id. at 628-29. At trial, however, “[t]he only evidence as

to the number of offenses was provided by the testimony of the child victim, who described

typical abuse scenarios and estimated the number of times the abusive offenses occurred,

e.g., ‘about 20,’ ‘about 15' or ‘about 10' times.” Id. at 628. Consequently, neither the

defendant nor any reviewing court could ascertain for certain whether the resulting 40

convictions were in fact connected to 40 separate, proven crimes.

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       By contrast, petitioner Cowherd cannot now claim that he is unsure of the basis for

his six sexual offense convictions. The trial testimony of the victim clearly delineated the

sequence of events that occurred on April 6, 1993. According to Galbreath, Cowherd

bound her, threatened her with a knife, and forced her to engage in vaginal, anal, and oral

sex before pausing to cook and eat a meal, leave the premises, return, ingest illegal drugs,

and then repeat the vaginal, anal, and oral sexual assaults. More importantly, Cowherd

himself admitted to each of the charged activities but insisted that Galbreath was a willing

participant in the acts.


       The indictment, despite inartful drafting, nevertheless charges Cowherd with two

counts of vaginal rape and four counts of sodomy. The only testimony at trial regarding

the alleged crimes clearly indicated that the petitioner twice penetrated Galbreath’s vagina

with his penis against her will, twice penetrated her anus with his penis against her will, and

twice forced his penis into her mouth against her will. Moreover, the jury convicted

Cowherd of each of the two rape charges and of each of the four sodomy allegations. The

confluence of the charges, the trial testimony, and the jury verdicts thus ensures both that

Cowherd could successfully plead these convictions as a bar to any future prosecution

based upon these acts, and that Cowherd was punished only for these six crimes and only

once for each of the six offenses. The petitioner’s double jeopardy challenge is thus

without merit, and the district court appropriately concluded that the state court’s treatment

of this issue was neither contrary to, nor an unreasonable application of, clearly established

Supreme Court precedent relevant to the claim.

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D. Ineffective Assistance of Counsel Claim


       In his final appellate issue, Cowherd submits that his trial attorney provided him with

ineffective assistance of counsel by failing to investigate fully the petitioner’s version of the

events of April 6, 1993. Specifically, Cowherd argues that had his attorney attempted to

locate witnesses to Galbreath’s alleged prior drug use, or had he sought verification that

the victim’s fingerprints were on a crack pipe also used by the petitioner, counsel could

have discredited the victim and provided support for the defense theory that Galbreath

made baseless rape allegations in order to punish Cowherd for refusing to pay for the

drugs the two individuals willingly consumed.


       In addressing this claim of ineffective assistance of counsel, we must be guided by

the now-familiar two-part test of Strickland v. Washington, 466 U.S. 668 (1984). As

required by that analytical framework:


       First, the defendant must show that counsel’s performance was deficient.
       This requires showing that counsel made errors so serious that counsel was
       not functioning as the “counsel” guaranteed the defendant by the Sixth
       Amendment. Second, the defendant must show that the deficient
       performance prejudiced the defense. This requires showing that counsel’s
       errors were so serious as to deprive the defendant of a fair trial, a trial whose
       result is reliable.


Id. at 687.


       In Groseclose v. Bell, 130 F.3d 1161, 1167 (6th Cir. 1997), in discussing the first

prong of the Strickland analysis, we recognized that:

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       The [Supreme] Court cautioned that in undertaking an ineffective-assistance
       review, “[j]udicial scrutiny of counsel’s performance must be highly
       deferential,” and must avoid the “second-guess[ing of] counsel’s
       assistance . . ., [as] it is all too easy for a court, examining counsel’s defense
       after it has proved unsuccessful, to conclude that a particular act or omission
       of counsel was unreasonable.” Strickland, 466 U.S. at 689 . . . . In order to
       avoid “the distorting effects of hindsight,” a reviewing “court must indulge a
       strong presumption that counsel’s conduct falls within the wide range of
       reasonable professional assistance; that is, the defendant must overcome
       the presumption that . . . the challenged action ‘might be considered sound
       trial strategy.’” Id. (citation omitted).


Furthermore, in evaluating the prejudice suffered by a petitioner as a result of alleged

ineffective assistance of counsel, “[i]t is not enough for the defendant to show that the

errors had some conceivable effect on the outcome of the proceeding.” Strickland, 466

U.S. at 693. Indeed, “[v]irtually every act or omission of counsel would meet that test, and

not every error that conceivably could have influenced the outcome undermines the

reliability of the result of the proceeding.” Id. (citation omitted). Rather, the petitioner “must

show that there is a reasonable probability that, but for counsel’s unprofessional errors, the

result of the proceeding would have been different.            A reasonable probability is a

probability sufficient to undermine confidence in the outcome.” Id. at 694.


       Finally, in conducting this inquiry, we need not apply Strickland’s principles in a

mechanical fashion. As the Supreme Court explained:


       [A] court need not determine whether counsel’s performance was deficient
       before examining the prejudice suffered by the defendant as a result of the
       alleged deficiencies. The object of an ineffectiveness claim is not to grade
       counsel’s performance. If it is easier to dispose of an ineffectiveness claim


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       on the ground of lack of sufficient prejudice, which we expect will often be so,
       that course should be followed.


Id. at 697.


       Just such a reverse treatment of the two prongs of the Strickland test is appropriate

in this case. Even if Cowherd’s counsel had established at trial that Galbreath had

previously used illegal drugs and that her fingerprints were on the crack pipe found in the

residence, such information still would not have established that the petitioner did not

forcefully rape the victim on April 6, 1993. Any prior drug use by Galbreath was thus

completely irrelevant to the question of whether she consented to the sexual acts Cowherd

himself admitted performing.       Because the alleged deficiencies in representation

highlighted by the petitioner do not undermine confidence in the outcome of the

proceedings, Cowherd is also not entitled to habeas relief on this ground.


                                    III. CONCLUSION


       Because the decisions of the Kentucky courts in this matter were neither contrary

to nor an unreasonable application of any clearly established federal law, as determined

by the United States Supreme Court, petitioner Cowherd is not entitled to habeas corpus

relief on any of the issues he now raises on appeal. We thus AFFIRM the district court’s

denial of Cowherd’s habeas petition.




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