COOPER v. STATE OF FLORIDA

Filing 23

ORDER granting Respondents' request to dismiss 17 , and dismissing the case with prejudice. Signed by Judge Marcia Morales Howard on 11/6/2017. (BL)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION

ARTHUR COOPER,
Petitioner,
v.

Case No. 3:15-cv-318-J-34JBT

SECRETARY, FLORIDA
DEPARTMENT OF CORRECTIONS,
et al.,
Respondents.
ORDER
I. Status
Petitioner Arthur Cooper, an inmate of the Florida penal
system, initiated this action on March 5, 2015,1 by filing a pro se
Motion for Habeas Corpus Relief (Petition; Doc. 1) under 28 U.S.C.
§ 2254. He filed an Amended Petition (Doc. 8) on July 15, 2016. In
the

Amended

Petition,

Cooper

challenges

a

2010

state

court

(Suwannee County, Florida) judgment of conviction for lewd and
lascivious battery. Respondents have submitted a memorandum in
opposition to the Amended Petition. See Respondents' Response to
Petition for Writ of Habeas Corpus (Response; Doc. 17) with
1

Giving Petitioner the benefit of the mailbox rule, this
Court finds that the Petition was filed on the date Petitioner
handed it to the prison authorities for mailing to this Court. See
Houston v. Lack, 487 U.S. 266, 276 (1988). The Court will also give
Petitioner the benefit of the mailbox rule with respect to his
inmate state court filings when calculating the one-year
limitations period under 28 U.S.C. § 2244(d).

exhibits (Resp. Ex.). On October 31, 2016, the Court entered an
Order to Show Cause and Notice to Petitioner (Doc. 12), admonishing
Cooper regarding his obligations and giving Cooper a time frame in
which to submit a reply. On October 19, 2017, Cooper notified the
Court that he does not intend to file a reply. See Motion to Rule
(Doc. 22). This case is ripe for review.
II. One-Year Limitations Period
The Antiterrorism and Effective Death Penalty Act of 1996
(AEDPA) imposes a one-year statute of limitations on petitions for
writ of habeas corpus. Specifically, 28 U.S.C. § 2244 provides:
(d)(1) A 1-year period of limitation
shall apply to an application for a writ of
habeas corpus by a person in custody pursuant
to the judgment of a State court. The
limitation period shall run from the latest
of-(A) the date on which the judgment
became final by the conclusion of
direct review or the expiration of
the time for seeking such review;
(B) the date on which the impediment
to filing an application created by
State action in violation of the
Constitution or laws of the United
States is removed, if the applicant
was prevented from filing by such
State action;
(C)
the
date
on
which
the
constitutional right asserted was
initially recognized by the Supreme
Court, if the right has been newly
recognized by the Supreme Court and
made retroactively applicable to
cases on collateral review; or

2

(D) the date on which the factual
predicate of the claim or claims
presented could have been discovered
through
the
exercise
of
due
diligence.
(2) The time during which a properly filed
application for State post-conviction or other
collateral
review
with
respect
to
the
pertinent judgment or claim is pending shall
not be counted toward any period of limitation
under this subsection.
28 U.S.C. § 2244(d).
Respondents contend that Cooper has not complied with the oneyear period of limitations set forth in 28 U.S.C. § 2244(d). The
following

procedural

history

is

relevant

to

the

one-year

limitations issue. On September 11, 2001, the State of Florida
charged Cooper with six counts of lewd and lascivious battery on a
child in Suwannee County circuit court case number 2001-CF-256
(Suwannee case). See Resp. Ex. 2A at 1-3. Pursuant to a negotiated
plea agreement, see id. at 5-7, Cooper entered a plea of guilty to
counts one, two and three, see id. at 8.2 The court sentenced
Cooper to seven years of sex offender probation with the first two
years on community control. See id. at 8-9, 15-22.
In another case (Columbia County circuit court case number
2001-CF-465 (Columbia case)), the State of Florida charged Cooper
with two counts of lewd and lascivious battery on a child. See
Resp. Ex. 1A at 11-12. Pursuant to a negotiated plea agreement, see

2

Counts four, five and six were nolle prossed. See Resp. Ex.
2A at 5, 11.
3

id. at 96-97, Cooper entered a plea of guilty to count one.3 The
court sentenced Cooper to seven years of sex offender probation
with the first two years on community control, to run concurrently
with the Suwannee case. See id. at 98-100, 102.
In early April 2006, a probation officer filed affidavits of
probation violation in the Suwannee and Columbia cases. See Resp.
Exs. 1A at 117-18; 2D at 12-13. On May 30, 2006, the court revoked
Cooper's probation and sentenced him to concurrent three-year terms
of imprisonment followed by seven years of sex offender probation.
See Resp. Exs. 1A at 128-33, 204-08; 2A at 28-32; 2D at 14-31; 2E.
In

July

2009,

a

probation

officer

filed

affidavits

of

probation violation in the Suwannee and Columbia cases. See Resp.
Exs. 1B at 210; 2A at 35-36. Cooper, with the benefit of counsel,
filed a motion to suppress an audio recording of a conversation
between him and the victim that was the basis for the violations.
See Resp. Ex. 2A at 44. The circuit court held an evidentiary
hearing on November 5, 2009, see Resp. Exs. 1C; 2C, and ultimately
denied the motion, see Resp. Exs. 1B at 231; 2A at 49. On April 8,
2010, circuit court Judge Paul Bryan held an evidentiary hearing on
the alleged violations of probation in both cases. See Resp. Exs.
1D; 2B. The court found that Cooper violated his probation. In the
Suwannee case, the court sentenced him to a term of imprisonment of
fifteen years for count one and fifteen-year terms of sex offender

3

Count two was nolle prossed. See Resp. Ex. 1A at 96, 101.
4

probation for counts two and three, to run consecutively to each
other and the sentence imposed for count one. See Resp. Exs. 1D at
127-28; 2B at 127-28. In the Columbia case, the court sentenced
Cooper

to

fifteen

years

of

sex

offender

probation,

to

run

consecutively to the term of imprisonment for count one in the
Suwannee case, and concurrently with count two in the Suwannee
case. See Resp. Exs. 1D at 129; 2B at 129.
On September 27, 2010, Cooper filed a pro se motion to correct
illegal sentence pursuant to Florida Rule of Criminal Procedure
3.800(b) (Rule 3.800(b) motion). See Resp. Ex. 3B. The circuit
court denied the Rule 3.800(b) motion on November 19, 2010. See
Resp. Ex. 3C. With the benefit of counsel, Cooper filed a motion to
correct sentencing error under Florida Rule of Criminal Procedure
3.800(b)(2) (Rule 3.800(b)(2) motion). See Resp. Ex. 3D. In the
Rule 3.800(b(2) motion, Cooper sought additional credit for time
served. The State responded. See Resp. Ex. 3E. On January 14, 2011,
the circuit court found that Cooper was entitled to additional
credit, estimated the amount, and directed the Florida Department
of Corrections to calculate and apply the precise amount. See Resp.
Ex. 3F.
On direct appeal, Cooper, with the benefit of counsel, filed
a brief pursuant to Anders v. California, 386 U.S. 738 (1967). See
Resp. Ex. 3G. The appellate court granted Cooper leave to file a
pro se brief on March 10, 2011. See Resp. Ex. 3H. Instead, Cooper

5

filed a notice of voluntary dismissal. See Resp. Ex. 3I. On March
29, 2011, the appellate court dismissed Cooper's appeal pursuant to
Florida Rule of Appellate Procedure 9.350(b).4 See id.
Cooper's conviction became final on Monday, June 27, 2011 (90
days from March 29, 2011).5 See Close v. United States, 336 F.3d
1283, 1285 (11th Cir. 2003) ("According to rules of the Supreme
Court, a petition for certiorari must be filed within 90 days of
the appellate court's entry of judgment on the appeal or, if a
motion for rehearing is timely filed, within 90 days of the
appellate

court's

denial

of

that

motion.").

Because

Cooper's

conviction was after April 24, 1996, the effective date of the
AEDPA, Cooper had one year from the date his conviction became

4

Florida Rule of Appellate Procedure 9.350 provides:
(b) Voluntary Dismissal. A proceeding of an
appellant or petitioner may be dismissed
before a decision on the merits by filing a
notice of dismissal with the clerk of the
court without affecting the proceedings filed
by joinder or cross-appeal; provided that
dismissal shall not be effective until 10 days
after filing the notice of appeal or until 10
days after the time prescribed by rule
9.110(b), whichever is later.
5

The Eleventh Circuit "has not addressed the issue of the
date a conviction becomes final when a direct appeal is voluntarily
dismissed." Adair v. Tucker, No. 5:12-cv-346-MP-GRJ, 2014 WL
2805227, at *2 (N.D. Fla. June 20, 2014). The first option is the
date on which the appeal is voluntarily dismissed, and the
alternative is 90 days thereafter, upon the expiration of the
period to seek certiorari in the United States Supreme Court. For
purposes of analysis, the Court will assume that Cooper is entitled
to the 90-day period.
6

final to file the federal petition (June 27, 2012). His Petition,
filed on March 5, 2015, is due to be dismissed as untimely unless
he can avail himself of one of the statutory provisions which
extends or tolls the limitations period.
Before his conviction became final, Cooper filed pro se
motions for post-conviction relief under Florida Rule of Criminal
Procedure 3.850 (Rule 3.850 motions) in the Suwannee and Columbia
cases on June 17, 2011. See Resp. Exs. 4A at 1-18; 5A at 1-17. In
the Rule 3.850 motions, he asserted that counsel (David W. Collins)
was ineffective because he affirmatively misadvised Cooper about
the collateral consequences of accepting a plea offer (ground one).
Additionally, he stated that counsel failed to: move to disqualify
Judge Paul Bryan (ground two), and use prior false allegations to
impeach the victim during her deposition (ground three). On August
22, 2011, in both cases, the post-conviction court dismissed ground
three as facially insufficient, and gave Cooper thirty days to refile a facially-sufficient ground three. See Resp. Exs. 4A at 1920; 5A at 18-19. Cooper voluntarily dismissed ground three, and
requested that the court rule on grounds one and two. See Resp.
Exs. 4A at 21-24; 5A at 20-24. In October 2011, the court denied
Cooper's Rule 3.850 motions, stating: "This Court has denied
Grounds One and Two on the merits. Ground Three remains dismissed
as this Court found it was facially insufficient, and the Defendant
opted not to re-file a facially sufficient claim." Resp. Exs. 4A at

7

30 n.2; 5A. Cooper did not appeal the post-conviction court's
denial of his Rule 3.850 motions by November 24, 2011 (within
thirty days of the court's denial).6 Therefore, upon the expiration
of the thirty-day appeal period, the one-year limitations period
began to run the next day, November 25, 2011.
On April 24, 2012, with the benefit of counsel, Cooper filed
similar requests for post-conviction relief pursuant to Florida
Rule of Criminal Procedure 3.850 (2nd Rule 3.850 motions) in the
Suwannee and Columbia cases. See Resp. Exs. 8A at 50-58; 9A at 19.
In the 2nd Rule 3.850 motions, Cooper asserted that counsel was
ineffective because he: failed to orally move for disqualification
of the trial judge and file a written motion for disqualification
(ground one), and affirmatively misadvised Cooper regarding the
collateral consequences of the State's plea offer (ground two).
Additionally, he stated that the trial court erred when it revoked
his probation without sufficient evidence (ground three). The postconviction court denied Cooper's 2nd Rule 3.850 motions. In doing
so, the court found that the motions failed to comply with Florida
Rule of Criminal Procedure 3.850(c) because they lacked Cooper's
oath;

the

motions

were

successive;

and,

ground

three

was

procedurally barred since trial court error is not cognizable in a

6

The post-conviction court advised Cooper that he could
appeal the court's denial of his Rule 3.850 motion. See Resp. Ex.
4A, Order Denying Motion for Postconviction Relief, filed October
25, 2011, at 30.
8

motion for post-conviction relief.7 See Resp. Exs. 8A at 59-60; 9A
at 10-11. In the Suwannee case, the appellate court affirmed the
post-conviction court's denial per curiam on July 24, 2012, and the
mandate issued on August 21, 2012. See Resp. Ex. 9B. In the
Columbia case, the appellate court affirmed the court's denial per
curiam on September 5, 2012, and the mandate issued on October 2,
2012. See Resp. Ex. 8B.
The Eleventh Circuit has recognized that a Rule 3.850 motion
that is not properly filed because it lacks a properly sworn oath
does not toll the AEDPA statute of limitations. Hurley v. Moore,
233 F.3d 1295, 1298 (11th Cir. 2000)("We conclude that Hurley's §
2254 petition could only be considered timely if his first state
post-conviction motion under Fla. R. Crim. P. 3.850, dismissed for
failure to comply with the procedural requirement of a written
oath, is a properly-filed post-conviction motion. It is not.");
Jones v. Sec'y. Fla. Dep't of Corr., 499 F. App'x 945, 950 (11th
Cir. 2012) (per curiam) (stating that because the petitioner's Rule
3.850 motion was signed only by the petitioner's counsel, and not
by the petitioner himself, his Rule 3.850 motion "was not properly
verified and did not toll AEDPA's limitations period") (citing
Hurley, 233 F.3d at 1298); Delguidice v. Fla. Dep't of Corr., 351

7

The circuit court stated: "This Court will not grant the
Defendant leave to amend this facial insufficiency, as the motion
would still fail even [if] this defect was corrected." Resp. Exs.
8A at 59; 9A at 10.
9

F. App'x 425 (11th Cir. 2009)(concluding that a Rule 3.850 motion
filed in state court was not properly filed because it did not
contain

a

written

oath).

Therefore,

the

one-year

period

of

limitations was not tolled during the pendency of Cooper's 2nd Rule
3.850 motions because they were not properly filed.
During the pendency of Cooper's 2nd Rule 3.850 motions, the
State of Florida filed a motion to reduce or suspend sentence
pursuant to Florida Statutes section 921.186 in the Suwannee case
on July 27, 2012. See Resp. Ex. 7A at 1-3. After an evidentiary
hearing, the circuit court denied the State's motion on September
10, 2012. See id. at 5-47. The court found that: it lacked subject
matter jurisdiction; the State failed to satisfy certain procedural
requirements of the statute; and, even assuming the court had
subject matter jurisdiction, the merits of the case did not warrant
a reduced sentence. See id. On Cooper's appeal, he filed a pro se
brief, see Resp. Ex. 7B; the State filed a motion to dismiss the
appeal for lack of jurisdiction, see Resp. Ex. 7C; and Cooper filed
a response to the court's show cause order, see Resp. Ex. 7D. On
January 30, 2013, in a written opinion, the appellate court granted
the State's motion to dismiss, and dismissed the appeal. See Cooper
v. State, 106 So.3d 32 (Fla. 1st DCA 2013); Resp. Ex. 7E.8 The

8

The Florida Supreme Court subsequently disapproved of the
decision in Cooper, 106 So.3d 32. See McFadden v. State, 177 So.3d
562 (Fla. 2015) (stating that denial of a motion to reduce a
sentence for rendering substantial assistance is an appealable
final order).
10

State's motion was not properly filed since the circuit court found
that it lacked jurisdiction, and therefore, the one-year period of
limitations was not tolled during the pendency of the State's
motion.
Accordingly, there were no properly-filed applications for
post-conviction or other collateral relief pending from November
25,

2011,

through

November

25,

2012.

The

November

25,

2012

anniversary date fell on a Sunday. See Ferreira v. Sec'y, Dep't of
Corr., 494 F.3d 1286, 1289 n.1 (11th Cir. 2007) (noting that the
limitations period should be calculated using "the anniversary date
of the triggering event"); Downs v. McNeil, 520 F.3d 1311, 1318
(11th Cir. 2008). Therefore, Cooper had until Monday, November 26,
2012, to timely file a federal petition.
After the expiration of the one-year limitations period, on
September 19, 2013, Cooper filed a pro se petition seeking a
belated appeal of the circuit court's denial of his Rule 3.850
motions.

See

jurisdiction
hearing,

the

Resp.
to

the

Ex.

6A.

circuit

appointed

The

appellate

court,

special

and

master

court

after

an

relinquished
evidentiary

recommended

that

the

appellate court grant Cooper's petition. See Resp. Ex. 6B. The
special master reasoned:
Altogether,
the
undersigned
special
master concludes that the failure to file the
appeal was the result of a misunderstanding,
and not of wrongdoing on either the Petitioner
or the attorney. The Petitioner simply
believed the attorney would file the appeal on
11

his behalf, but the attorney, who does not
handle criminal appeals, believed he was hired
to assist the Petitioner and his family in
another postconviction proceeding. . . .
Id. at 2. On February 18, 2014, the appellate court granted Cooper
a belated appeal of the circuit court's denial of his Rule 3.850
motions in the Columbia and Suwannee cases, and stated that the
opinion would serve as the notice of appeal upon issuance of the
mandate. See Cooper v. State, 131 So.3d 829 (Fla. 1st DCA 2014)
(per curiam); Resp. Ex. 6C. The mandate issued on March 6, 2014.
See Resp. Ex. 6C.
To toll the one-year limitations period under § 2244(d)(2), a
proceeding must be a "properly filed application for State postconviction or other collateral review with respect to the pertinent
judgment or claim." Espinosa v. Sec'y, Dep't of Corr., 804 F.3d
1137, 1140 (11th Cir. 2015) (quoting 28 U.S.C. § 2244(d)(2)).
Despite the granting of Cooper's petition for belated appeal, the
petition was filed after the one-year limitations period had
expired. The Eleventh Circuit has addressed whether a petition for
belated appeal (filed after the one-year limitations period had
already expired, and later granted by the state appellate court)
could retroactively toll the one-year limitations period. Moore v.
Crosby, 321 F.3d 1377, 1379-80 (11th Cir. 2003). The Court stated:
In conclusion, we hold that the petitioner's
belated appeal motion was not pending during
the limitations period. The statutory tolling
provision does not encompass a period of time
in which a state prisoner does not have a
12

"properly filed" post-conviction application
actually pending in state court. A state
application filed after expiration of the
limitations period does not relate back so as
to toll idle periods preceding the filing of
the federal petition. The plain language of
the statute provides for tolling "[t]he time
during which a properly filed application for
State post-conviction or other collateral
review
...
is
pending."
28
U.S.C.
§
2244(d)(2).
While
a
"properly
filed"
application for post-conviction relief tolls
the statute of limitations, it does not reset
or restart the statute of limitations once the
limitations period has expired. In other
words, the tolling provision does not operate
to revive the one-year limitations period if
such period has expired. . . .
Id. at 1381; see Mashburn v. Comm'r, Ala. Dep't of Corr., 2017 WL
4857443, at *5-6 (Oct. 26, 2017). Thus, Cooper's petition for
belated appeal filed after the AEDPA limitations period had expired
"does not operate to revive" an expired AEDPA clock. Id.; see
Response at 18-20.
With

the

one-year

limitations

period

having

expired

on

November 26, 2012, none of Cooper's motions filed after November
26, 2012, could toll the limitations period because there was no
period remaining to be tolled.9 See Sibley v. Culliver, 377 F.3d
1196, 1204 (11th Cir. 2004) (stating that, where a state prisoner
files post-conviction motions in state court after the AEDPA

9

Cooper filed other motions that did not toll the one-year
limitations period because they were filed after the AEDPA
limitations period had expired. See Resp. Exs. 10A (filed November
30, 2012); 11A at 1-52 (filed December 19, 2012); 11A at 95-122
(filed September 29, 2014); 12A (filed June 12, 2013); 13A (filed
February 25, 2016).
13

limitations period has expired, those filings cannot toll the
limitations period because "once a deadline has expired, there is
nothing left to toll"); Webster v. Moore, 199 F.3d 1256, 1259 (11th
Cir. 2000) ("A state-court petition like Webster's that is filed
following the expiration of the limitations period cannot toll that
period because there is no period remaining to be tolled."). Given
the record, Cooper's March 5, 2015 Petition is untimely filed, and
due to be dismissed unless Cooper can establish that equitable
tolling of the statute of limitations is warranted.
"When a prisoner files for habeas corpus relief outside the
one-year limitations period, a district court may still entertain
the petition if the petitioner establishes that he is entitled to
equitable tolling." Damren v. Florida, 776 F.3d 816, 821 (11th Cir.
2015), cert. denied, 137 S.Ct. 830 (2017). The United States
Supreme Court has established a two-prong test for the application
of equitable tolling, stating that a petitioner must show "(1) that
he has been pursuing his rights diligently, and (2) that some
extraordinary circumstance stood in his way and prevented timely
filing." Holland v. Florida, 560 U.S. 631, 649 (2010) (quotations
and citation omitted); Cadet v. Fla. Dep't of Corr., 853 F.3d 1216,
1221 (11th Cir. 2017), petition for cert. filed, No. 17-6146 (U.S.
July 25, 2017). As an extraordinary remedy, equitable tolling is
"limited
applied

to

rare

and

sparingly."

exceptional

Cadet,

853

14

circumstances

F.3d

at

1221

and

typically

(quotations

and

citation omitted). The burden is on Cooper to make a showing of
extraordinary circumstances that "are both beyond his control and
unavoidable even with diligence," and this high hurdle will not be
easily surmounted. Howell v. Crosby, 415 F.3d 1250, 1251 (11th Cir.
2005) (quotations and citation omitted); Wade v. Battle, 379 F.3d
1254, 1265 (11th Cir. 2004) (per curiam) (citations omitted).
Cooper asserts that he timely filed the Petition, see Amended
Petition at 7; see also Petition at 2, and has not asserted any
entitlement to equitable tolling. As such, Cooper has not shown a
justifiable reason why the dictates of the one-year limitations
period should not be imposed upon him. For this reason, this Court
will dismiss this case with prejudice pursuant to 28 U.S.C. §
2244(d).
III. Certificate of Appealability
Pursuant to 28 U.S.C. § 2253(c)(1)
If Cooper seeks issuance of a certificate of appealability,
the undersigned opines that a certificate of appealability is not
warranted. This Court should issue a certificate of appealability
only if the petitioner makes "a substantial showing of the denial
of a constitutional right." 28 U.S.C. § 2253(c)(2). To make this
substantial showing, Cooper "must demonstrate that reasonable
jurists

would

find

the

district

court's

assessment

of

the

constitutional claims debatable or wrong," Tennard v. Dretke, 542
U.S. 274, 282 (2004) (quoting Slack v. McDaniel, 529 U.S. 473, 484
(2000)), or that "the issues presented were 'adequate to deserve
15

encouragement to proceed further,'" Miller-El v. Cockrell, 537 U.S.
322, 335-36 (2003) (quoting Barefoot v. Estelle, 463 U.S. 880, 893
n.4 (1983)).
Where

a

constitutional

district
claims

court
on

the

has

rejected

merits,

the

a petitioner's
petitioner

must

demonstrate that reasonable jurists would find the district court's
assessment of the constitutional claims debatable or wrong. See
Slack, 529 U.S. at 484. However, when the district court has
rejected a claim on procedural grounds, the petitioner must show
that "jurists of reason would find it debatable whether the
petition states a valid claim of the denial of a constitutional
right and that jurists of reason would find it debatable whether
the district court was correct in its procedural ruling." Id. Upon
consideration of the record as a whole, this Court will deny a
certificate of appealability.
Therefore, it is now
ORDERED AND ADJUDGED:
1.

Respondents' request to dismiss (Doc. 17) the Amended

Petition as untimely is GRANTED, and this action is DISMISSED WITH
PREJUDICE.
2.

The Clerk of the Court shall enter judgment dismissing

this case with prejudice.
3.

If Cooper appeals the dismissal of the Amended Petition,

the Court denies a certificate of appealability. Because this Court

16

has

determined

that

a

certificate

of

appealability

is

not

warranted, the Clerk shall terminate from the pending motions
report any motion to proceed on appeal as a pauper that may be
filed in this case. Such termination shall serve as a denial of the
motion.
4.

The Clerk of the Court is directed to close this case and

terminate any pending motions.
DONE AND ORDERED at Jacksonville, Florida, this 6th day of
November, 2017.

sc 11/6
c:
Arthur Cooper, FDOC #544030
Counsel of Record

17