Cooper v. Secretary, Department of Corrections (Polk County)

Filing 6

ORDER: Cooper's 1 Petition for Writ of Habeas Corpus is DISMISSED with prejudice as time-barred. A certificate of appealability and leave to appeal in forma pauperis are DENIED. The CLERK is directed to enter judgment against Cooper and in Respondent's favor and to CLOSE this case. Signed by Judge Kathryn Kimball Mizelle on 2/5/2024. (MLH)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
RUSHAWN COOPER,
Petitioner,
v.

Case No. 8:23-cv-2209-KKM-CPT

SECRETARY, DEPARTMENT
OF CORRECTIONS,
Respondent.

_______________________________
ORDER
Cooper, a Florida prisoner, filed a pro se Petition for Writ of Habeas Corpus under

28 U.S.C. § 2254. (Doc. 1.) Having considered the petition, (id.), and the limited response
seeking to dismiss the petition as time-barred, (Doc. 5), the petition is dismissed as timebarred. 1 Because reasonable jurists would not disagree, a certificate of appealability also is
not warranted.
I.

BACKGROUND
A state court jury convicted Cooper of second-degree murder with a weapon. (Doc.

5-2, Ex. 2.) e state trial court sentenced him to life in prison. (Doc. 5-2, Ex. 3.) e state
appellate court per curiam affirmed the conviction and sentence. (Doc. 5-2, Ex. 6.) e state
court denied Cooper’s motion to correct an illegal sentence, filed under Florida Rule of

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Cooper did not file a reply.

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Criminal Procedure 3.800(a). (Doc. 5-2, Exs. 7 & 8.) e state court also denied Cooper’s
motion for postconviction relief, filed under Florida Rule of Criminal Procedure 3.850.
(Doc. 5-2, Exs. 9-11.)
e state appellate court reversed the denial of Ground Two of the Rule 3.850
motion because portions of the state court record attached to the state court’s order did not
conclusively refute Cooper’s claim. Cooper v. State, 336 So.3d 415 (Fla. 2d DCA 2022).
e state appellate court affirmed the denial of postconviction relief in all other respects.

Id. On remand, the state court again denied Ground Two of Cooper’s Rule 3.850 motion.
(Doc. 5-2, Ex. 15.) e state appellate court per curiam affirmed the denial of relief. (Doc.
5-2, Ex. 18.) e state appellate court also denied Cooper’s petition alleging ineffective
assistance of appellate counsel, filed under Florida Rule of Appellate Procedure 9.141(d).
(Doc. 5-2, Exs. 20 & 23.)
II.

THE PETITION’S UNTIMELINESS
e Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) governs this

proceeding. Carroll v. Sec’y, DOC, 574 F.3d 1354, 1364 (11th Cir. 2009). Under the
AEDPA, a federal habeas petitioner has a one-year period to file a § 2254 petition. is
limitation period begins running on the later of “the date on which the judgment became
final by the conclusion of direct review or the expiration of the time for seeking such
review.” 28 U.S.C. § 2244(d)(1)(A). It is tolled for the time that a “properly filed application
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for State post-conviction or other collateral review” is pending in state court. 28 U.S.C.
§ 2244(d)(2).
e state appellate court affirmed Cooper’s conviction and sentence on February 7,
2018. (Doc. 5-2, Ex. 6.) His judgment became final 90 days later, on May 8, 2018, upon
expiration of the time to petition the Supreme Court of the United States for a writ of
certiorari. See Bond v. Moore, 309 F.3d 770, 774 (11th Cir. 2002).
After 149 days of untolled time, on October 5, 2018, Cooper filed a motion to
correct an illegal sentence under Florida Rule of Criminal Procedure 3.800(a). (Doc. 5-2,
Ex. 7.) e state court denied the motion on November 2, 2018. (Doc. 5-2, Ex. 8.) Although
Cooper did not appeal the denial, the AEDPA limitation period remained tolled for the
30-day period to do so, which concluded on December 3, 2018. 2 See Fla. R. Crim. P.
3.800(a)(4) (stating that a petitioner may appeal an order denying or dismissing a Rule
3.800(a) motion within 30 days); Cramer v. Sec’y, Dep’t of Corr., 461 F.3d 1380, 1383-84
(11th Cir. 2006) (holding that a postconviction claim “remains pending until the time to
seek review expires”).
After another 98 days of untolled time passed, Cooper filed a motion for
postconviction relief under Florida Rule of Criminal Procedure 3.850 on March 12, 2019.

e thirtieth day, December 2, 2018, was a Sunday. erefore, Cooper had until Monday, December 3,
2018, to appeal. See Fla. R. App. P. 9.010; Fla. R. Jud. Admin. 2.514(a)(1)(C).

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(Doc. 5-2, Ex. 9.) is motion remained pending until the state appellate court’s mandate
issued on October 25, 2022. (Doc. 5-2, Ex. 19.) At that time, Cooper had 118 days
remaining on his AEDPA limitation period. erefore, his § 2254 petition was due by
February 20, 2023. Cooper did not file any subsequent tolling motions in state court. His
petition alleging ineffective assistance of appellate counsel under Florida Rule of Appellate
Procedure 9.141(d) was filed on January 13, 2020, and was denied on March 25, 2020.
(Doc. 5-2, Exs. 20 & 23.) During this time, his Rule 3.850 motion for postconviction relief
was pending and, therefore, the AEDPA limitation period was already tolled. (Doc. 5-2,
Exs. 9 & 19.) Accordingly, Cooper’s § 2254 petition, filed on September 25, 2023, is
untimely.
In the section of his petition on timeliness, Cooper asserts that his petition is timely,
but adds, “otherwise [he] is entitled to equitable tolling.” (Doc. 1, p. 12.) Section 2244(d)
“is subject to equitable tolling in appropriate cases.” Holland v. Florida, 560 U.S. 631, 645
(2010). A petitioner is entitled to equitable tolling “only if he shows ‘(1) that he has been
pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his
way’ and prevented timely filing” of his § 2254 petition. Id. at 649 (quoting Pace v.

DiGuglielmo, 544 U.S. 408, 418 (2005)). “[T]he burden of proving circumstances that
justify the application of the equitable tolling doctrine rests squarely on the petitioner,” and
“[m]ere conclusory allegations are insufficient to raise the issue of equitable tolling.” San
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Martin v. McNeil, 633 F.3d 1257, 1268 (11th Cir. 2011). Cooper provides no argument or
facts supporting his request for equitable tolling. He merely states that equitable tolling
applies to this case. us, Cooper has not carried his burden of showing that he is entitled
to equitable tolling. His petition is dismissed as time-barred. 3
III.

CERTIFICATE OF APPEALABILITY
Cooper is not entitled to a certificate of appealability (COA). A prisoner seeking a

writ of habeas corpus has no absolute entitlement to a COA. 28 U.S.C. § 2253(c)(1). e
district court or circuit court must issue a COA. Id. To obtain a COA, Cooper must show
that reasonable jurists would debate both (1) the merits of the underlying claims and (2)
the procedural issues he seeks to raise. See 28 U.S.C. § 2253(c)(2); Slack v. McDaniel, 529
U.S. 473, 484 (2000). Because the petition is time-barred, Cooper cannot satisfy the second
prong of the Slack test. As Cooper is not entitled to a COA, he is not entitled to appeal in
forma pauperis.
erefore, the Court ORDERS that Cooper’s Petition for Writ of Habeas Corpus,
(Doc. 1), is DISMISSED with prejudice as time-barred. e CLERK is directed to enter
judgment against Cooper and in Respondent’s favor and to CLOSE this case.

Cooper does not assert that the Court may consider his untimely petition on the basis that new evidence
shows his actual innocence. See McQuiggin v. Perkins, 569 U.S. 383 (2013).

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ORDERED in Tampa, Florida, on February 5, 2024.

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