Cooper v. Epps et al

Filing 13

MEMORANDUM OPINION AND ORDER re 12 Final Judgment. Signed by District Judge Sharion Aycock on 10/7/14. (cr)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF MISSISSIPPI
OXFORD DIVISION
MANUEL COOPER,
V.

PETITIONER
CIVIL ACTION NO.: 3:14CV119-SA-SAA

CHRISTOPHER EPPS and
ATTORNEY GENERAL OF THE STATE OF MISSISSIPPI,

RESPONDENTS

MEMORANDUM OPINION AND ORDER
This matter comes before the Court on the pro se petition of Manuel Cooper, Mississippi
prisoner # 91229, for a writ of habeas corpus under 28 U.S.C. § 2254. Respondents have moved
to dismiss the petition as time-barred pursuant to 28 U.S.C. § 2244(d), and Petitioner has
responded to the motion. For the reasons set forth below, Respondents’ motion will be granted,
and the instant petition will be dismissed with prejudice.
Facts and Procedural History
Petitioner, Manuel Cooper, was convicted of one count of false pretense in the Circuit
Court of DeSoto County, Mississippi, and was sentenced on June 2, 2009, as an habitual
offender to serve life in the custody of the Mississippi Department of Corrections (“MDOC”).
(ECF No. 1, p. 1; Respts’ Mot. to Dismiss, Ex. A). Petitioner appealed his conviction and
sentence, and the matter was assigned to the Mississippi Court of Appeals, which affirmed the
judgment of the lower court in an opinion entered on April 26, 2011. Cooper v. State, 68 So. 3d
741 (Miss. Ct. App. 2011), reh’g denied, June 28, 2011, cert. denied, August 25, 2011 (No.
2009-KA-00924-COA); (Respts’ Mot. to Dismiss, Ex. B).1 Petitioner did not file a petition for
writ of certiorari to the United States Supreme Court.

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The Court notes that these records list the Petitioner’s name as “Manual.”

On September 15, 2011, Petitioner filed in the Mississippi Supreme Court a “Motion for
Leave to Proceed in the Trial Court.” (Respts’ Mot. to Dismiss, Ex. C). By order filed
September 28, 2011, the trial court dismissed the motion without prejudice, finding that
Petitioner failed to attach to it a Motion for Post-Conviction Relief. (Id., Ex. D). Petitioner did
not resubmit his motion with the motion for post-conviction relief attached. Rather, on February
18, 2014, Petitioner filed with the Mississippi Supreme Court an “Application for Leave to
Proceed to the DeSoto County Circuit Court.” (Id., Ex. E). On May 14, 2014, the court denied
the motion, holding that the issues raised therein were barred and without merit. (Id., Ex. F).
Petitioner filed for rehearing from the decision on May 27, 2014, but the petition was denied on
June 17, 2014, pursuant to Mississippi Rule of Appellate Procedure 27(h)2. (Id., Ex. G).
Petitioner signed the instant petition on May 1, 2014, and it was stamped “filed” in this
Court on June 2, 2014. (ECF No. 1, pp. 1, 14). On August 27, 2014, Respondents filed a motion
to dismiss the instant action, arguing that the petition is untimely under 28 U.S.C. § 2244(d).
Petitioner concedes that the petition was filed after the expiration of the statute of limitations, but
he maintains that his family retained an attorney who was supposed to file his post-conviction
action before November 14, 2011. He argues that his post-conviction attorney, therefore, is
responsible for the delay. Attached to the instant petition is a letter from post-conviction counsel
to Petitioner dated November 14, 2011, in which Petitioner is informed that counsel has been
retained by Petitioner’s family to “look into an appeal of your conviction.” (ECF No. 1, p. 17).
Petitioner alleges that counsel failed to file the post-conviction action as promised, and he argues

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This rule states that “[m]otions for reconsideration, vacation or modification of rulings
of the Supreme Court and the Court of Appeals on motions are generally not allowed.” Miss.
R.App. P. 27(h).
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that the limitations period should be tolled for counsel’s ineffectiveness.
Legal Standard
The instant petition for writ of habeas corpus is subject to the statute of limitations of the
Anti-Terrorism and Effective Death Penalty Act of 1996 (“AEDPA”). Egerton v. Cockrell, 334
F.3d 433, 436 (5th Cir. 2003). The issue of whether Respondents’ motion should be granted
turns on the statue’s limitation period, which 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 the 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
(D) the date on which the factual predicate of the claim or claims
presented could have been discovered through the exercise of due
diligence.
28 U.S. C. § 2244(d)(1). The federal limitations period is tolled while a “properly filed
application for State post-conviction or other collateral review” is pending. See 28 U.S.C. §
2244(d)(2). In “rare and exceptional circumstances,” the limitations period may be equitably
tolled. Felder v. Johnson, 204 F.3d 168, 170-71 (5th Cir. 2000) (citations omitted).

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Analysis
A state court judgment generally becomes final “upon denial of certiorari by the Supreme
Court or expiration of the period” of time to seek it. Ott v. Johnson, 192 F.3d 510, 513 (5th Cir.
1999). Because Petitioner did not seek certiorari review with the United States Supreme Court
as part of his direct appeal, his conviction became “final” for purposes of § 2244(d) on
November 23, 2011 – 90 days after certiorari was denied by the Mississippi Supreme Court on
August 25, 2011. See Roberts v. Cockrell, 319 F.3d 690, 694 (5th Cir. 2003) (holding that where
a defendant does not seek certiorari review, finality is established by the expiration of the 90 day
period to seek such review with the Supreme Court). Therefore, unless Petitioner filed a
“properly filed” application for post-conviction relief on or before November 23, 2012, to toll
the limitations period, his habeas petition was filed too late.3 See 28 U.S.C. § 2244(d)(2).
While Petitioner did file a type of post-conviction motion on September 15, 2011, the
Mississippi Supreme Court dismissed the motion due to Petitioner’s failure to attach to it a
motion for post-conviction relief. (See, e.g., Respts’ Mot. to Dismiss, Ex. D). Therefore, even
though this motion was filed prior to the November 23, 2012, deadline, it was not a “properly
filed” application for post-conviction relief as required by 28 U.S.C. § 2244(d)(2). See Artuz v.
Bennett, 531 U.S. 4, 8 (2000) (holding that an application is “properly filed” when its delivery
and acceptance are in compliance with the applicable law and rules governing filings). This
filing cannot, then, toll the statute of limitations. Petitioner’s subsequent application on
February 18, 2014, for leave to proceed in the trial court likewise fails to toll the limitations
period, as it was filed after the November 23, 2012, deadline.

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The exceptions of § 2244(d)(1)(B-D) are inapplicable in this case.
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Petitioner’s federal habeas petition was “filed” sometime between May 1, 2014, and June
2, 2014. See Coleman v. Johnson, 184 F.3d 398, 401 (5th Cir. 1999) (holding that the “mailbox
rule” deems a pro se prisoner’s petition filed on the date it is delivered to prison officials for
mailing). Because either date is beyond the federal limitations deadline, the Court finds that the
instant petition was filed after the statute of limitations expired.
Because his federal habeas petition was filed beyond the AEDPA deadline, federal
habeas relief is available to Petitioner only if he can demonstrate that his case involves “rare and
exceptional circumstances” that would warrant an equitable tolling of the limitations period.
Felder v. Johnson, 204 F.3d 168, 170-71 (5th Cir. 2000) (citations omitted). Equitable tolling is
available if Petitioner can demonstrate that he pursued habeas relief with diligence, and that
some “extraordinary circumstance” stood in his way and prevented timely filing. Holland v.
Florida, 560 U.S. 631, 649 (2010).
While Petitioner asserts that his retained attorney was supposed to file a post-conviction
action on his behalf, the Fifth Circuit has instructed that counsel neglect is not an extraordinary
circumstance justifying equitable tolling. See United States v. Petty, 530 F.3d 361, 366 (5th Cir.
2008). Rather, equitable tolling is available only “if the [petitioner was] actively misled by the
defendant about the cause of action or [was] prevented in some extraordinary way from asserting
his rights.” Lookingbill v. Cockrell, 293 F.3d 256, 264 (5th Cir. 2002) (citations omitted); see
also United States v. Riggs, 314 F.3d 796, 799 (5th Cir. 2002) (holding that equitable tolling is
warranted only if the petitioner demonstrates that he was intentionally deceived and “reasonably
relied on his attorney’s deceptive misrepresentations”). There is no evidence before the Court
suggesting that Petitioner’s attorney intentionally deceived him. Rather, the documents

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submitted by Petitioner suggest the conditions of counsel’s retainer agreement were not satisfied
as of March 2012. A March 15, 2012, letter from post-conviction counsel to Petitioner records
that counsel was prepared to file Petitioner’s post-conviction action “upon payment of the
balance of [the] retainer in the amount of $ 5,003.00.” (ECF No. 1, p.18). This letter was sent to
Petitioner in advance of the November 23, 2012, limitations deadline, and it should have alerted
Petitioner of his need to take action to satisfy the retainer agreement or to file his own legal
materials.
The Court notes that a petitioner’s unfamiliarity with legal rules does not justify equitable
tolling. See Turner v. Johnson, 177 F.3d 390, 392 (5th Cir. 1999) (holding that “neither a
[litigant’s] unfamiliarity with the legal process nor his lack of representation during the
applicable filing period merits equitable tolling”) (citation omitted). Regardless, the Court notes
that the attached to the instant petition demonstrate that Petitioner was aware of the deadlines he
was required to meet. (See, e.g., ECF No. 11, pp. 37-38; see also Respts’ Mot. to Dismiss. Ex.
C). In fact, Petitioner filed a motion in a post-conviction proceeding prior to the expiration of
the federal limitations deadline and subsequently failed to supplement the motion with the
required application for post-conviction relief.
In sum, the Court finds that equitable tolling is not warranted under the facts of this case.
It determines that the instant petition is untimely, and that Respondents’ motion should be
granted.
Certificate of Appealability
Petitioner must obtain a COA before appealing this Court’s decision denying federal
habeas relief. See 28 U.S.C. § 2253(c)(1). Because Petitioner’s petition for writ of habeas

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corpus is rejected on procedural grounds, Petitioner must demonstrate “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” in order for a COA to issue. Slack v. McDaniel, 529 U.S. 473, 484 (2000).
Applying this standard, the Court concludes that a COA should be denied in this case.
Conclusion
For the reasons set forth herein, the Court GRANTS Respondents’ “Motion to Dismiss
Pursuant to § 2244(d)” (ECF No. 10) and DISMISSES with prejudice the petition filed in this
cause. The Court DENIES a certificate of appealability, as Petitioner failed to show his petition
timely and to make “a substantial showing of the denial of a constitutional right.” 28 U.S.C. §
2253(c)(2).
SO ORDERED this the 7th day of October, 2014.
/s/ Sharion Aycock
U.S. DISTRICT JUDGE

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