Cooper v. United States

• Decision Date: 13 February 2023
• Docket Number: 3:19-cv-01007
• Parties: JAMAL COOPER, Movant, v. UNITED STATES OF AMERICA, Respondent.
• Court: U.S. District Court — Middle District of Tennessee

JAMAL COOPER, Movant, v. UNITED STATES OF AMERICA, Respondent.

No. 3:19-cv-01007

United States District Court, M.D. Tennessee, Nashville Division

February 13, 2023

To The Honorable Aleta A. Trauger, District Judge

REPORT AND RECOMMENDATION

ALISTAIR E. NEWBERN United States Magistrate Judge

Jamal Cooper is serving a 396-month sentence at the Federal Correctional Institution in Manchester, Kentucky, after pleading guilty to six counts of drug trafficking and firearms offenses in this Court. Plea Agreement, United States v. Cooper, No. 3:14-cr-00090 (M.D. Tenn. Jan. 3 2017), ECF No. 1360; Order Accepting Plea Petition United States v. Cooper, No. 3:14-cr-00090 (M.D Tenn. Jan. 3, 2017), ECF No. 1359; Judgment, United States v. Cooper, No. 3:14-cr-00090 (M.D. Tenn. Apr. 19, 2017), ECF No. 1504. Cooper has now filed a pro se motion under 28 U.S.C. § 2255 to vacate, set aside, or correct his sentence. (Doc. No. 1.) The Court determined on preliminary review that Cooper's motion states a cognizable claim of ineffective assistance of counsel and ordered the United States to answer or otherwise respond to the motion. (Doc. No. 3.) The United States filed an answer (Doc. No. 9), and Cooper filed a reply with the assistance of counsel (Doc. No. 36). The Court referred the action to the Magistrate Judge for a report and recommendation on Cooper's motion. (Doc. No. 33.) For the reasons that follow, the Magistrate Judge will recommend that the Court deny Cooper's motion.

I. Factual and Procedural Background

A. Criminal Investigation and Prosecution

Cooper's prosecution arose out of a federal taskforce investigation into narcotics trafficking in Nashville, Tennessee, that began in 2013. (Doc. No. 18.) During the investigation, the United States sought and obtained an order from the Court authorizing a wiretap to intercept communications to and from Target Telephone 1 (TT1), believed to be used by Cooper's codefendant Eric Eugene Williams, and Target Telephone 2 (TT2), believed to be used by Cooper. Order, United States v. Cooper, No. 3:14-cr-00090 (M.D. Tenn. Dec. 19, 2014), ECF No. 455-2. The order authorized interception of communications on both lines for 30 days. Id. The United States intercepted Cooper's calls on TT2 for approximately two weeks. Application for Sealing of Wire and Electronic Communications, United States v. Cooper, No. 3:14-cr-00090 (M.D. Tenn. Dec. 19, 2014), ECF No. 455-4. The United States did not intercept any conversations from TT1 because Williams stopped using that phone number before the wiretap was granted. Id.

The United States charged Cooper by criminal complaint and arrested him on May 19, 2014. Complaint, United States v. Cooper, No. 3:14-cr-00090 (M.D. Tenn. May 19, 2014), ECF No. 1; Arrest Warrant, United States v. Cooper, No. 3:14-cr-00090 (M.D. Tenn. May 19, 2014), ECF No. 3. A superseding indictment issued charging Cooper and twenty-one other defendants on June 25, 2014. Superseding Indictment, United States v. Cooper, No. 3:14-cr-00090 (M.D. Tenn. June 25, 2014), ECF No. 17. Cooper was named in nine counts of drug trafficking and firearms offenses.

Cooper-represented by his first trial counsel, Michael J. Flanagan-moved to suppress the TT2 recordings and any derivative evidence, arguing that the United States failed to establish the necessity for the wiretap and failed to immediately make the recordings available to the Court for sealing as required by statute. Memorandum of Law in Support of Motion to Suppress, United States v. Cooper, No. 3:14-cr-00090 (M.D. Tenn. Dec. 28, 2014), ECF No. 465. The Court denied Cooper's motion to suppress, finding that the government's affidavits demonstrated the necessity of the wiretap and that the government complied with applicable sealing requirements. Memorandum and Order, United States v. Cooper, No. 3:14-cr-00090 (M.D. Tenn. Dec. Jan. 16, 2015), ECF No. 524.

Almost a year later, Cooper moved to substitute counsel, Flanagan moved to withdraw, and the Court granted both motions. Order, United States v. Cooper, No. 3:14-cr-00090 (M.D. Tenn. Jan. 20, 2016), ECF No. 876. Attorney John Bailey entered an appearance on Cooper's behalf on January 22, 2016. Notice of Appearance, United States v. Cooper, No. 3:14-cr-00090 (M.D. Tenn. Jan. 22, 2016), ECF No. 878.

Less than a week later, the United States filed a second superseding indictment against Cooper and seven co-defendants. Second Superseding Indictment, United States v. Cooper, No. 3:14-cr-00090 (M.D. Tenn. Jan. 27, 2016), ECF No. 882. The second superseding indictment charged Cooper with eleven counts of drug trafficking and firearms offenses, including conspiracy to distribute and possess with intent to distribute heroin and fentanyl (Count 1); conspiracy to distribute and possess with intent to distribute marijuana (Count 2); conspiracy to distribute and possess with intent to distribute methamphetamine (Count 3); distribution and possession with intent to distribute heroin (Counts 4, 6 and 7); distribution and possession with intent to distribute fentanyl (Count 5); conspiracy to possess and discharge a firearm in furtherance of drug trafficking (Count 8); possession of a firearm in furtherance of drug trafficking (Count 9); carry, use, and discharge of a firearm during and in relation to drug trafficking (Count 10); and possession of a firearm after a felony conviction (Count 12). Id.

In September 2016, Cooper-represented by Bailey-filed a second motion to suppress the intercepted TT2 communications and any derivative evidence, arguing that the United States made material misrepresentations and omissions in its affidavits supporting the wiretap application and that Cooper was entitled to an evidentiary hearing under Franks v. Delaware, 438 U.S. 154 (1978). Motion to Suppress Evidence, United States v. Cooper, No. 3:14-cr-00090 (M.D. Tenn. Sept. 29, 2016), ECF No. 1210. Cooper further argued that the government violated 18 U.S.C. § 2518(1)(c) “by offering generalized statements concerning two or more potential targets in its application for permission to use wiretaps” and that the recordings of conversations between Cooper and various confidential informants were nonconsensual and therefore illegal. Id. at 11, ¶ 22; id. at 12. The Court denied Cooper's request for a Franks hearing and denied his second motion to suppress. Memorandum and Order, United States v. Cooper, No. 3:14-cr-00090 (M.D. Tenn. Dec. 21, 2016), ECF No. 1309.

Cooper sent the Court a handwritten letter dated December 27, 2016, stating that his attorney-client relationship with Bailey “ha[d] diminished possibly beyond repair” and that he had “written a formal complaint to the Board of Professional Responsibility” regarding Bailey's representation. Letter from Jamal Cooper to Judge Aleta A. Trauger at 1, United States v. Cooper, No. 3:14-cr-00090 (M.D. Tenn. Jan. 4, 2017), ECF No. 1363 [hereinafter Letter]. Cooper complained about Bailey's work on the second motion to suppress, stating that Bailey did not clearly articulate the United States' factual misrepresentations and failed to present all of the supporting factual and legal bases that Cooper had instructed him to present, including an argument that the government improperly sought two wiretaps in one affidavit. Id. at 2-6. Cooper further argued that the United States used TT1 as a pretext to obtain a court-ordered wiretap on TT2. Id. at 5.

The Court held a hearing on December 30, 2016, and questioned Cooper about his letter in a lengthy ex parte discussion.^[1] Unsealed Transcript Excerpt of December 30, 2016 Motion Hearing, United States v. Cooper, No. 3:14-cr-00090 (M.D. Tenn. Oct. 4, 2017), ECF No. 1568. The Court then announced on the record that Cooper's concerns came “down to a Franks issue ....[H]e maintains that the government . . . basically boot strapped TT1 to get TT2, which was his phone, knowing at the time that TT1 wasn't being used anymore.” Id. at 4. The Court stated that it was “not convinced that” Cooper and Bailey's relationship was “irreparably severed at all” and that it seemed instead “they ha[d] quite a good relationship.” Id. at 5. The Court took a recess to consider Cooper's Franks argument and the corresponding record evidence. After the recess, the Court found that Cooper had not identified any record evidence supporting his assertion that the government knew Williams had stopped using TT1 when it applied for the wiretap on TT1 and TT2. Id. at 8-12. The Court further stated that it did not appear that Bailey had omitted anything material in presenting Cooper's second motion to suppress. Id. at 12, 14.

On January 3, 2017, Cooper entered into a plea agreement with the United States in which he agreed to plead guilty to Counts 1, 2, 3, 8, 10, and 12 of the second superseding indictment and the United States agreed to dismiss Counts 4, 5, 6, 7, and 9. Plea Agreement, ECF No. 1360. As part of the plea agreement, Cooper admitted that the following facts were true and established his guilt beyond a reasonable doubt:

a) Beginning in or around Summer 2013, the exact date being unknown to the Grand Jury, and continuing up to and including June 2014, in the Middle District of Tennessee, and elsewhere, JAMAL COOPER a/k/a Jamal Jordan, a/k/a J, a/k/a Mal, LONALD ECTOR a/k/a J.R., KARON KEY JORDAN, WILTON BAILEY a/k/a Willy Will, CLIFFORD WOODS TOMMY E. SMITH, DARNELL FINNELS, a/k/a Ski, a/k/a Skeezy and ROBERT NOEL, a/k/a Kamp Trey, did combine, conspire and agree with each other and other persons known and unknown to the Grand Jury, to knowingly and intentionally distribute and possess with intent to distribute, one (1) kilogram or more of a mixture or substance containing a detectable amount of heroin, a Schedule I controlled substance, and a mixture

...