Cooper v. Sec'y, Fla. Dep't of Corr., Case No. 3:11-cv-783-J-34JBT

• Decision Date: 22 April 2014
• Docket Number: Case No. 3:11-cv-783-J-34JBT
• Parties: TIMOTHY COOPER, Petitioner, v. SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS AND THE ATTORNEY GENERAL OF THE STATE OF FLORIDA, Respondents.
• Court: U.S. District Court — Middle District of Florida

TIMOTHY COOPER, Petitioner, v. SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONSAND THE ATTORNEY GENERAL OF THE STATE OF FLORIDA, Respondents.

Case No. 3:11-cv-783-J-34JBT

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA JACKSONVILLE DIVISION

DONE AND ORDERED: April 22, 2014

ORDER

I. Status

Petitioner Timothy Cooper, an inmate of the Florida penal system, initiated this action by filing a pro se Petition for Writ of Habeas Corpus (Doc. #1) under 28 U.S.C. § 2254 on August 2, 2011. Cooper filed an Amended Petition (Doc. #7) on September 7, 2011. In this action, Cooper challenges a 2007 state court (Duval County, Florida) judgment of conviction for trafficking oxycodone and hydocodone. Respondents submitted a memorandum in opposition to the Amended Petition on September 27, 2012. See Respondents' Answer to Petition for Writ of Habeas Corpus and Order to Show Cause(Response) (Doc. #26) with exhibits (Resp. Ex.). On October 3, 2011, the Court entered an Order to Show Cause and Notice to Petitioner (Doc. #10), admonishing Cooper regarding his obligations and giving Cooper a time frame in which to submit a reply. Cooper notified the Court on October 31, 2012, that he does not intend to submit a brief in reply. See Notice (Doc. #27). This case is ripe for review.

II. Procedural History

On October 20, 2006, the State of Florida charged Cooper with trafficking in morphine, opium, oxycodone, heroin, hydrocodone or their derivatives (count one) and trafficking in cocaine (count two). Resp. Ex. A at 10-11, Information.¹ The State later amended the Information on March 2, 2007, charging him with trafficking in morphine, opium, oxycodone, heroin, hydrocodone or their derivatives (count one) and possession of cocaine (count two). Id. at 46, Amended Information. Cooper proceeded to trial in March 2007, the conclusion of which the jury found him guilty of trafficking in oxycodone and hydrocodone and not guilty of possession of cocaine. Resp. Ex. C, Transcript of the Jury Trial(Tr.) at 168; Resp. Ex. A at 72, 73, Verdicts. On June 6, 2007, the court sentenced Cooper to a term of seventeen years of imprisonment with a minimum mandatory term of fifteen years of imprisonment. Resp. Ex. A at 87-92, Judgment; 134-51, Transcript of the Sentencing Proceeding (Sentencing Tr.).

On January 22, 2008, Cooper, through counsel, filed a motion to correct illegal sentence pursuant to Florida Rule of Criminal Procedure 3.800(b)(2). Resp. Ex. E at 1-13. In the motion, Cooper asserted that his sentence was illegal because the crime of which he was convicted constituted a strict liability offense for which the punishment should not exceed one year. The trial court denied the motion on February 4, 2008. Id. at 14.

With the benefit of counsel, Cooper appealed, arguing that: he had not knowingly and intelligently waived his right to self-representation because the trial court's Faretta² inquiry was inadequate (ground one); the trial court reversibly erred when it restricted defense counsel's cross examination of Detectives Bishop and Miller as to whether they knew who owned the vehicle where Cooper was found (ground two); and Cooper's sentence was illegal because trafficking in a controlled substance is a strict liability offense for which he could not receive a sentence of greater than one year of imprisonment (ground three). Resp. Ex. F. The State filed an Answer Brief. See Resp. Ex. G. On January 21, 2009, theappellate court affirmed Cooper's conviction and sentence per curiam without issuing a written opinion, see Cooper v. State, 998 So.2d 608 (Fla. 1st DCA 2009); Resp. Ex. H, and the mandate issued on February 6, 2009.³ Cooper did not seek review in the United States Supreme Court.

On April 13, 2009, Cooper filed a pro se motion for post conviction relief pursuant to Florida Rule of Criminal Procedure 3.850. Resp. Ex. I at 3-39. He later amended the motion on May 18, 2009. Id. at 40-81. In his request for post conviction relief, Cooper asserted that defense counsel was ineffective because he failed to: file a motion to correct illegal sentence (ground two); argue illegal search and seizure (ground three); argue that there was neither probable cause nor reasonable suspicion to stop, detain or arrest him (ground four); argue "immunity against prosecution" (ground five); and move for dismissal of the charges due to a defective Information (ground six). Additionally, Cooper asserted that counsel misadvised him (ground one), and "systematically" denied him effective assistance (ground seven). On May 26, 2009, the trial court dismissed Cooper's motion without prejudice to his right to file an amendment or clarification "as he may feel appropriate." Id. at 83. In doing so, the court explained:

The Amended Motion (and the initial motion as well) consists of some is [sic] 33 pages of hyperbole, argument, accusation, and vilification of the State Attorney, defense counsel, and the legal system in general. The motion appears to suggest that the defendant, or the author of his motion, has settled on a collection of legal phrases garnered from assorted motions and used the "cut and paste" method of creation of his motion. Such continuity of thought as there may be in the motion does not appear at all to be directly related to anything that happened in the trial of this cause.

In the light most favorable to the defendant, it appears that he is claiming ineffective assistance of counsel in that counsel failed to file a motion to suppress. However, the defendant's motion utterly fails to provide factual support for this claim. Defendant takes some 20 pages to argue his conclusion that he should not have been prosecuted, but fails to show any facts upon which counsel might have acted.

Also in the light most favorable to the defendant, it appears that he is again claiming that there was some sort of sleight of hand or fraud perpetrated on the Court, and therefore the defendant, by the fact that he was provided with a conformed copy of the properly executed information and not a photocopy of same or at least that's what his argument appears to be. As the defendant has attached copies of the information, there is at least a factual basis for this claim, albeit invalid.

Rather than deny the motion outright, it seems appropriate to afford the defendant an opportunity to clarify the facts upon which his claim is based. Accordingly, the Court shall give him the opportunity to amend as to the matter of the motion to suppress. The defendant has adequately preserved his claim regarding the falsely filed information.

Id. at 82-83.

On June 15, 2009, Cooper filed a pro se amended motion for post conviction relief pursuant to Florida Rule of Criminal Procedure 3.850 (Rule 3.850 motion). Id. at 85-89. In his amended motion, Cooper asserted that defense counsel was ineffective because he failed to adopt Cooper's pro se motion to suppress or file a proper motion to suppress (ground one), and failed to file a motion to dismiss count one (ground two). On November 20, 2009, the trial court denied the Rule 3.850 motion, concluding that Cooper's motion failed to set forth any cognizable ground for relief under Rule 3.850. Id. at 94-96. On appeal, Cooper filed a pro se brief, see Resp. Ex. J, and the State notified the court that it did not intend to file an answer brief, see Resp. Ex. K. On May 10, 2010, the appellate court affirmed the trial court's denial per curiam, see Copper v. State, 37 So.3d 851 (Fla. 1st DCA 2010); Resp. Ex. L, and later denied Cooper's motion for rehearing on June 16, 2010, see Resp. Exs. M; N. The mandate issued on July 2, 2010. See Resp. Ex. O.

According to the state court online docket, see, https://core.duvalclerk.com, Case No. 16-2006-CF-015334-AXXX-MA, Cooper filed another Rule 3.850 motion on July 21, 2010. On August 17, 2010, the circuit court denied the motion; the appellate court granted Cooper a belated appeal on January 19, 2011, see Cooper v. State, 53 So.3d 1093 (Fla. 1st DCA 2011); ultimately affirmed thetrial court's denial per curiam on April 8, 2011, see Cooper v. State, 58 So.3d 263 (Fla. 1st DCA 2011); and the mandate issued on May 4, 2011.⁴

III. One-Year Limitations Period

The Petition appears to be timely filed within the one-year limitations period. See 28 U.S.C. § 2244(d).

IV. Evidentiary Hearing

"In deciding whether to grant an evidentiary hearing, a federal court must consider whether such a hearing could enable an applicant to prove the petition's factual allegations, which, if true, would entitle the applicant to federal habeas relief." Schriro v. Landrigan, 550 U.S. 465, 474 (2007) (citation omitted). "It follows that if the record refutes the applicant's factual allegations or otherwise precludes habeas relief, a district court is not required to hold an evidentiary hearing." Id. The pertinent facts of this case are fully developed in the record before the Court. Because this Court can "adequately assess [Petitioner's] claim[s] without further factual development," Turner v. Crosby, 339 F.3d 1247, 1275 (11th Cir. 2003), cert. denied, 541 U.S. 1034 (2004), an evidentiary hearing will not be conducted.

V. Standard of Review

The Court will analyze Cooper's claims under 28 U.S.C. § 2254(d), as amended by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). Section 2254(d) states:

An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim -

(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.

Thus, 28 U.S.C. § 2254(d) "bars religation of any...