Cooper v. United States of America

Filing 3

MEMORANDUM. Signed by Judge Benson Everett Legg on 7/11/11. (c/m 7/12/11 mps, Deputy Clerk)

UNITED STATES DISTRICT COURT
DISTRICT OF MARYLAND

YANCEY COOPER
Petitioner
v.
UNITED STATES OF AMERICA
Respondent

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CIVIL NO. L-10-2533
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CRIM. NO. L-08-0239
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MEMORANDUM

Now pending is pro se petitioner Yancey Cooper’s motion for relief pursuant to 28
U.S.C. § 2255. Docket No. 121. Because the facts and legal arguments are adequately set forth
in the existing record, an evidentiary hearing is not necessary. See United States v. Yearwood,
863 F.2d 6, 7 (4th Cir. 1988) (recognizing that “[a] hearing is not required . . . on a § 2255
motion if the record of the case conclusively shows that petitioner is entitled to no relief”). For
the reasons set forth below, the Court will, by separate Order of even date, DISMISS the Motion
WITHOUT PREJUDICE, ENTER an Amended Judgment from which an appeal can be taken,
APPOINT counsel for purposes of noting the appeal, and DIRECT the Clerk to CLOSE the
case. 2
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Because Cooper did not appeal his sentence, he has procedurally defaulted his claims.
Thus, to collaterally attack his sentence, Cooper must show both cause for and actual prejudice
from the default. See Murray v. Carrier, 477 U.S. 478 (1986). “The existence of cause for a
procedural default must turn on something external to the defense, such as the novelty of the
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The Court will GRANT Cooper’s unopposed Motion to Amend his petition (Docket No. 142)
and DENY his Motion for Summary Judgment (Docket No. 125). The basis for the latter Motion
is that the Government failed to respond timely to Cooper’s Motion to Vacate. The
Government’s response was timely, however, because shortly before Cooper filed his Motion for
Summary Judgment, the Court granted the Government’s request for an extension of time.

claim or a denial of effective assistance of counsel.” United States v. Mikalajunas, 186 F.3d 490,
493 (4th Cir. 1999).
Cooper alleges that his appointed counsel, Alan Bussard, was deficient in several ways.
Ineffective assistance of counsel claims are evaluated under the Strickland two-prong test, which
requires Cooper to show (i) that counsel’s performance was deficient, and (ii) that counsel’s
deficient performance prejudiced him. Strickland v. Washington, 466 U.S. 668, 687 (1984). To
establish the first prong, Cooper must produce evidence that his counsel’s performance was not
“within the range of competence demanded of attorneys in criminal cases.” Id. As for the
second prong, Cooper must show that but for his attorney’s deficient performance, the result of
the proceedings would have been different. See id. The Court can address either the prejudice
or the effectiveness prong first, and if it finds that Cooper cannot satisfy one of the prongs, the
Court’s inquiry ends and the petition is dismissed. Id. at 697.
In his Amended Motion, Cooper alleges that he directed Bussard to appeal the Court’s
denial of his Motion to Suppress and that Bussard failed to do so. Counsel’s failure to file a
direct appeal when requested to do so by his client is per se ineffective. Roe v. Flores-Ortega,
528 U.S. 470, 476-77 (2000); United States v. Peak, 992 F.2d 39, 42 (4th Cir. 1993). Waiver of
appellate rights in a plea agreement does not absolve counsel of the duty to file an appeal upon
request. United States v. Poindexter, 492 F.3d 263, 271-73 (4th Cir. 2007). To avoid the
credibility contest inherent in this claim, the Court will enter a new judgment from which Cooper
can take an appeal and appoint counsel for purposes of noting the appeal.

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III.

Conclusion
For the reasons stated above, the Court will, by separate Order of even date, DISMISS

the Motion to Vacate WITHOUT PREJUDICE; ENTER an Amended Judgment from which an
appeal can be taken; APPOINT counsel for purposes of noting an appeal, and DIRECT the Clerk
to CLOSE the case.

Dated this 11th day of July, 2011.

/s/

Benson Everett Legg
United States District Judge

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